You can’t. The system is designed to be accessible by any ex-employee and, if they pay $71.90 and fill in the form reasonably correctly, you’ve got an unfair dismissal claim to respond to. Being or feeling right or justified won’t make it disappear or solve it. Neither will getting upset or ignoring it.
The best you can do is reduce the risk that you’ll get a claim, and that means three things:
- Having really clear, reasonable and transparent performance and behaviour standards.
- Following sound and objectively fair and consistent processes in how instructions, training and support are given, and how performance and behaviour is measured and managed.
- Give people every possible chance to succeed, including to improve behaviours and performance.
It should be simple
You employ people because you have work to do, with the intention that it is done well and performed in a way that contributes to the positive culture of your team and the success of your business. You expect people to be honest in their interactions and efforts, and to comply with the law and your policies in performing their duties. If people end up, despite your best efforts, to be unable to, or not want to do that, you might decide things need to change. The Fair Work Commission has no problem with that.
Problems can be expected when:
- Employees are uncertain about what is expected
- Employees are not told about, understand or refreshed on policies or procedures – a memo sighted 3 years ago doesn’t mean much today.
- Employees are not capable of performing the role due to poor hiring decisions, not getting enough information, not being adequately trained, incapability or poor support.
- Assumptions are made about capability, common sense, attitudes and intentions. Assumptions can only ever be best-guesses – that they feel right at the time doesn’t make them right.
- Employees feel under social, performance or overload pressure, so act to reduce stress more urgently than to actually get important things done – this is a quite normal avoidance response to stress. This might have them not cooperating, avoiding tasks and responsibilities, and, due to changes in cortical blood flow, becoming emotional and irrational, without the capacity to manage emotions or perform well. It is also likely to see them gossiping, using social media or finding other temporarily rewarding but unproductive things to do.
- Meaningful challenges are not set and performances not measured, so that workplace hierarchy, success and respect are determined by things other than what matters most to outcomes. When people say they hate workplace politics, this is often what feeds it. This is also a recipe for toxic culture of social competitiveness and non-performance.
- Managers avoid difficult conversations to avoid the conflict and stress that come with them – or when stressed conduct an emotionally charged and competitive, rather than rational and collaborative, conversation. This emotional response is natural due to basic neurobiology, but can be minimised through training and process (we teach both of those things, as you’d expect). It also contributes to the lapses in judgement and lack of fairness that so often find employers at fault at the FWC.
A simple fix
Be very clear on what is to be done, how success is measured,what behaviours and ways of communicating are OK – and what are not. Make sure employees know (knowing means more than signing a document at induction) your policies and processes, and that they get regular feedback on how they’re going.
Make sure performance measures are clear, achievable and transparent – if people are doing well, they should be able to see that or hear about that straight away (this is also essential for fast-tracking learning processes). If not, people should immediately know that too. That way, whatever happens, people get the best possible chance to succeed, feel appreciated and fairly treated and, if a parting is required, have less reason to go to Fair Work.
Here’s really a simple tip – Use probation periods to make sure you and the employee can be confident that the relationship is a productive, safe and enjoyable one. Too often employers waste this opportunity to face up to difficulties and deal with them early without risking an unfair dismissal claim.
It also helps to think of and treat people well as the fellow humans they are, no matter they’re age, role or expertise. If supervisors commit themselves to the success and wellbeing of all employees as if their own success depends on it, and it does, and follow objectively fair and supportive management habits and corrective processes, they can reduce problems of every kind, including Fair Work unfair dismissal claims.