April 21

Being a Small Business is no Excuse

Ignorance is bliss. However, when it comes to the law this is not so. Just because someone does not know the law does not discharge them of their liability for any breaches. This is so even for small business employers. Though small businesses are less likely to have the funds to employ or retain dedicated employment law specialists they are still required to fulfil their employment law obligations.

Two recent unfair dismissal cases in the Fair Work Commission (the FWC) provide a warning to small business employers that ignorance is no excuse. In both cases the employers did not comply with the Small Business Fair Dismissal Code.

Mr Troy Currie v The Trustee for B & S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462, concerned the dismissal of Mr Currie, a second-year apprentice painter for Perfect Coat Painting. Mr Currie agreed to the employer’s request to receive a flat rate of pay, meaning he received no overtime or penalty rates. Mr Currie was dismissed by text message after not attending work on a Sunday after working the Monday to Saturday before. Mr Currie’s request not to work on the Sunday was denied. Perfect Coat Painting required all employees to work in order to meet the deadline.

Commissioner Hunt held that Mr Currie had been dismissed unfairly. Commissioner Hunt held that it was unreasonable for Perfect Coat Painting to require Mr Currie to work the Sunday after Mr Currie had worked the Monday to Saturday before and would not be paid penalty rates. Commissioner Hunt stated that it was ‘inconceivable’ that in 2019 an employer, even a small business employer, did not know they were required to pay penalty rates to employees who worked weekends in addition to working all week. The amount of compensation payable to Mr Currie is to be determined at a further decision.

Gail Ayton v You Come Pty Ltd t/a Foodworks Ashmont [2019] FWC 6585, concerned the dismissal of Ms Gail Ayton, a casual shop assistant employed for over 20 years, though under different ownership. Ms Ayton was also dismissed by text message. Mr Wang, owner of You Come Pty Ltd, submitted that Ms Ayton was dismissed because her register was short on multiple occasions and she did not notify him when she was absent from work. Ms Ayton submitted that Mr Wang wanted to fire her because she was not Chinese. Due to the lack of evidence Deputy President Sams conducted his own investigation which found job advertisements on Chinese Australian job forums stating, ‘Asian lady preferred’, ‘Asian staff preferred’ and ‘prefer oversea people’.

Deputy President Sams found that Ms Ayton was unfairly dismissed. Deputy President Sams held that Ms Ayton’s non-attendance on the day she was dismissed and the minor cash shortages did not amount to serious misconduct, Ms Ayton was not informed of any risk to her employment and Ms Ayton was not dismissed because of conduct or performance. The job advertisements supported the view that Ms Ayton was dismissed because she was not Asian. Deputy President Sams stated that being a small business with no HR expertise did not justify Mr Wang terminating Ms Ayton in a ‘disgraceful and grossly unfair’ way.

In the decision for remedy, Gail Ayton v You Come Pty Ltd t/a Foodworks [2019] FWC 7029, You Come Pty Ltd was ordered to pay Ms Ayton six months wages minus the amount she had earned in her new position, amounting to $11,803.01 less tax. The matter has been referred for consideration of whether You Come Pty Ltd breached anti-discrimination laws.

Take Home

Ignorance of the law is not bliss. Though the FWC takes into consideration the size of a business and its lack of expert HR support, the FWC does not accept ignorance of the law as an excuse or justification for failing to comply with the law. Any breaches can be quite costly for a small business. Small business employers should learn about their obligations to employees under employment law.

It should be noted that in both cases the employees were dismissed via text message. Employers are strongly advised against this method of communicating dismissal. To learn more about the pitfalls of dismissing an employee via text message, please see the article by my colleague Brian Powles.

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December 15

Spreading the Christmas Cheer or the Grinch that Stole Christmas: the Hits and Misses of Workplace Christmases Past

As we come to the end of 2016 and approach Christmas, an exciting time of the working year, as staff are treated to workplace Christmas parties and often time off work over the Christmas and New Year period, some businesses find themselves in tricky situations: everything from misbehaving employees to disputes over annual leave rights and entitlements. However, there are also feel good stories that every now and then restore your faith and make even the most Grinch-worthy of people look forward to Christmas. I take a look at the workplace stories that have made headlines at Christmases past: the good, the bad and the ugly.

Christmas hits

In December 2015, Hillcorp, a Houston based, privately held oil and natural gas exploration company gave each of their 1,381 employees an early Christmas present: a US$100,000 bonus (approx. AU$135,000) as a thank you for an excellent year. And this wasn’t the first time the company was outrageously generous towards its employees. In 2011, after doubling the company in size, staff were able to choose between two Christmas gifts: a $50,000 car or a $35,000 cash bonus.

In 2012, Random House, the publisher responsible for Fifty Shades of Grey, interrupted its corporate Christmas party to announce that all employees (from top editors to warehouse workers) would be receiving $5,000 bonuses after a profitable year (no doubt, in part, due to Fifty Shades).

Even the Australian Taxation Office manages to stay away from raining down on the Christmas cheer, with Christmas parties and gifts to employees generally exempt from fringe benefits tax, provided that less than $300 is spent on each employee. Although expenses incurred in holding a Christmas party are unlikely to be tax deductible, gifts to employees are generally tax deductible.

Swinton Insurance offers a day off for all employees to get their Christmas shopping done, whilst Blurb, an online platform for self publishing books, gifts employees a day off and the funds to pay for a day trip, whether a day on the slopes skiing, at the spa or the movies.

A 9 year old boy used his letter to Santa not to ask for Christmas presents, but to request that his grandfather’s boss give his grandpa the day off. The manager reported to the boy’s grandfather: “I’ve received a phone call from the North Pole this morning asking me to contact Santa on his private cell… I called him, and he was quite concerned that you were planning to work on Christmas Day. Your grandchildren are quite upset about this! I think it would be best if you planned to take the day off and spend it with your family. Work can wait until after Christmas!”

In Peru, communities that live in the Andes use the 25th of December to participate in a tradition known as “Takanakuy”, which lets residents fight with anyone they like – even their boss. The idea of Takanakuy is that people build up their grievances over the year and save them up for Christmas, where everyone gets into a fight. Each fight begins and ends with a hug.

A recent study has shown that 43% of Canadians would like to hear Christmas music in the workplace. Conversely, in the UK, the government was asked to investigate policies on playing Christmas music in shops after trade unions labelled the practice of over-playing festive music a form of psychological “torture” that staff are forced to endure.

Christmas misses

No article about workplace Christmases would be complete without drunken antics, debauchery and bosses behaving badly.

43954218 - glasses of champagne in female hands on christmas party

A UK survey has found that HR professionals are the most badly behaved departments when it comes to the work Christmas party. 72% of HR professionals said they had embarrassed themselves at

the staff party by kissing a co-worker, having sex with a colleague or getting incredibly drunk. The study also showed that 39% of employees admit to having had sex with a colleague at the Christmas party, whilst 50% of workers said they had kissed a co-worker at the annual party.

Employees were asked about the worst end of year gifts they had ever received from their employer. Here are some of the worst:

  • A coupon to eat a free meal at the nursing home I worked at… as a cook. They didn’t charge for staff meals either
  • An envelope full of pamphlets on how to lose weight with no letter or explanation
  • A gas card for 15 bucks from a place that had been closed for nearly six months
  • A 20% discount voucher for the company’s English courses for kids. I didn’t have children

Meanwhile, a business in Quebec, Canada was forced to defend its decision not to give out its annual Christmas gift, a $50 gift card, all the way to Court. The arbitrator found that the annual gift that had been given to staff in the past had always been characterised as a discretionary bonus and could not constitute a vested right for employees.

In 2001, Merrill Lynch’s New Zealand Hawaiian themed Christmas party ended in tragedy when a 26-year-old investment banker reached under a toilet cubicle and set fire to a colleague’s synthetic grass skirt. The colleague suffered significant burns to 95% of his body and died three days later.

An employee who berated his colleague before finally pushing him fully clothed into a swimming pool during the company’s Christmas party was found to have been fairly dismissed. The Fair Work Commission found that employees who choose to drink at company functions “will also be held responsible for their own actions” and “society no longer readily accepts alcohol consumption as an excuse for bad behaviour and certainly not for physical violence.”

Conversely, an employee who spent the Christmas party intimidating and sexually harassing colleagues and telling managers to f—k off was unfairly dismissed after the employee was supplied with unlimited free alcohol. The Commission found that the conduct did not occur at the official Christmas party and occurred at a venue after the work sanctioned party had concluded. The Commission also questioned whether a company could require compliance of good behaviour at functions when they provide “unlimited service of free alcohol” to employees.

Carrying on from that, many businesses often question whether to provide employees with free alcohol for fear that it could get them into hot water. Unsurprisingly, in a recent survey, 61% of respondents stated that they wouldn’t attend a work Christmas party where alcohol wasn’t provided and a further 33% of people stated that they would only make an appearance because it was polite to do so. Just 6% of respondents stated that they would definitely attend the Christmas party, despite alcohol not being on offer.

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April 8

The Five Golden Rules of Coaching Uncooperative Employees

Uncooperative employees are hard to deal with at the best of times, but what about when you are actively coaching them? It is not hard to understand why many managers resile from such a task. However, coaching is an integral part of a manager’s role and uncooperative employees are always going to exist.

I have compiled my five golden rules of coaching uncooperative employees, along with explaining the key reasons that you must coach these individuals and detail what you can do if an employee simply refused to participate in coaching.

The five golden rules of coaching an uncooperative employee

  1. Don’t stoop to their level- Often uncooperative employees will whinge and whine about not wanting to undertake a required tasks. Whatever you do, don’t start telling them that you would prefer to be doing something else more worthwhile with your time than spending it with them. Rise above them and get on with the process in an engaged manner.
  2. Don’t become negative- So often by the time a manager is coaching someone they have a negative view about them and their performance. This translates very quickly into negative body language, tone, words and actions. Be careful to remain upbeat and positive when coaching an employee, no matter their initial attitude. You do need to give them a real chance to perform and who knows they might surprise you with a huge turn around when they properly understand what is expected.
  3. Don’t skimp on the important parts- If you have gotten to the coaching stage, well done! So many managers avoid this altogether. Now whatever you do don’t miss the important parts. You will need to reiterate the consequences to the employee if their performance or behaviour does not improve. This needs to be clearly said and it can be a good idea to have the employee repeat this to you to confirm it.Tell them if their performance does not improve to the required level their employment may be terminated.
  4. Don’t become reactionary- Sometimes the best reaction to disproportionate behaviour is no reaction at all. If an employee is getting angry or lashing out at you while you are trying to coach them, then best thing to do is to very calmly end the session and give them another chance to resume it later when they have calmed down. Do not yell back at them or think that being firm in response will help.
  5. Don’t stop following a coaching plan (unless you have good reason)- So many coaching or performance improvement plans start with the best of intentions. I have seen pre-organised weekly meetings decay very quickly into nothing. This will usually be followed by the underperforming employee claiming they have not been supported. Be realistic when setting a plan and stick to it.

Coaching

One of the first questions I ask a client that comes to me with an unfair dismissal claim relating to poor performance is: ‘what support did you provide to the employee before dismissing them?’ Many people are confused by this question. There is tendency to think that simply by telling someone they need to improve that this is enough. Unfortunately, this is not the case.

53228217_sPerformance issues can often require some proactive coaching from a manager, especially if the employee in question has been with the organisation for a long time. A good way to carry out coaching is via a performance improvement plan with set goals, time frames and predetermined meetings. The support required for an individual throughout this process will depend very much on what the performance issue is and what resources the company has available to it. Usually I would recommend setting a reasonable period of time to monitor the employee’s performance and scheduling at least 1-2 coaching meetings to discuss performance, provide advice and get feedback. In addition, but not as a substitute, you could also ask the employee to report back to you weekly via email so you can keep a broader tab on their performance.

Unfortunately, it is quite often the uncooperative employees that do not turn their performance around. You therefore may well find yourself in a situation, after implementing coaching with them, of having to terminate the individual. It is important that if you get to that point you have explored performance improvement with them. If you are unable to show an appropriate level of support, including coaching, it might be held by the Fair Work Commission that you did not provide a real opportunity for the employee to improve their performance and that their dismissal was therefore unfair. This could result in compensation or reinstatement to their position.

Enough is Enough

So you have followed the golden rules, you have implemented a coaching plan and stuck to it. What next? Well, if the employee has been warned of the potential termination consequences and they have remained uncooperative and their performance has not improved, you can, and should, dismiss them.

Some employees will out right refuse to undertake coaching or a performance improvement plan. If this occurs then you should at least try to have one session to see if you can change their mind, but if you cannot you can move to firing them. In such circumstances I would suggest given the individual a written ultimatum about either cooperating or being immediately dismissed before moving to the final step.

Whatever you do, don’t be afraid of getting coaching wrong. Being paralysed by fear into doing nothing will not sort out performance issues. Trying something is always better than avoiding a bad situation.

What coaching advice do you have? Have you ever found yourself in a situation with an employee refusing to participate in coaching? 

 

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