Monthly Archives: September 2018

It’s What’s Inside that Counts: Dealing with Disgruntled Ex-Employees

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Rohan Burn, Graduate Associate

Last fortnight the Queensland Strawberry Growers Association released a statement saying they had reason to suspect that a disgruntled ex-employee may have orchestrated a recent newsworthy incident where sewing needles were found in a number of strawberries.

This incident has caused employers to reflect on the commercial, reputational, and legal risks that arise from current and former employees who may be unhappy with their work environment. To mitigate against these risks, there are a number of proactive strategies that an employer can implement to protect their reputation and deter employees from breaching their obligations.

Reputational Damage

Building a reputable organisation takes years of time, dedication and vision, and just minutes to destroy. It takes just one employee, for example by sharing negative feedback online or breaching work health and safety obligations, to disrupt that reputation. Trust and respect within an organisation are crucial to mitigating against the risks and potential damage that a disgruntled employee may cause. Employers need to focus on creating and maintaining a healthy workplace culture and addressing behaviours that fall foul of acceptable conduct.

Employee Management

Appropriate performance management processes encompass both a risk management strategy and a mechanism for improving the performance of employees. Employers should provide employees with regular opportunities to discuss and respond to concerns as well as achievements. Ongoing communication facilitates a more transparent and mutually beneficial approach, where an employee is aware of and can align their performance and behaviours with an employer’s expectations and organisational values.

Where employees perceive performance management as inherently negative, the employer limits performance management to a process with a forgone conclusion; exiting an employee. In these circumstances, employees may feel unsupported by their employer and aggrieved by being labelled as a “poor performer”. Terminating an employee’s employment when they have a perception of organisational injustice can expose the business to additional risks, particularly if the employee is serving out any remaining notice period or has a “story” the media might be interested in.

The People Management Quadrants

The People Management Quadrants represent a holistic approach to the management of people issues in the workplace. Instead of only focussing on commercial outcomes and how they can be achieved within the law, employers should also consider what people may be feeling and thinking about an issue, and what message is being conveyed through the organisation’s people management strategy. For example, exiting a poor performing employee may make commercial sense and be legally permitted, but consideration should also be given to how the employee will react to the dismissal and how their colleagues will perceive that decision.

Organisational Conflict

In some circumstances, the behaviours of one disgruntled employee can be understood as a manifestation of broader organisational conflict. Behaviours such as absenteeism, low morale, inefficiency, and sabotage may all be expressions of organisational conflict that need to be addressed on an on-going basis and not simply at the point where termination is being contemplated. However, where a decision is ultimately made to exit a particular employee, the employer should reflect on the circumstances that led to the employee’s exit and whether an audit of organisational policies and practices is warranted.

PCS can work with you and your leadership team to conduct a culture and effectiveness audit to identify gaps in your organisation and build a robust people strategy.

When is employment correctly characterised as casual?

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Meriska Lourens, Associate

The approach to characterising casual employment was the subject of a recent determination of the Federal Court of Australia. This decision necessitates that organisations review their engagement practices around casual employment.

The Facts

The employee was a fly-in-fly-out truck driver and argued that he was a permanent full-time employee because his employment was continuous, predictable and determined in advance. On this basis he claimed to be entitled to payment for accrued annual leave when his employment was terminated.

The employer contended that:

  • it engaged the employee as a casual under its Agreement (making him ineligible for annual leave and other entitlements);
  • the employee was engaged by the hour and could choose when and where to work;
  • the Agreement described the employee as a casual; and
  • both it and the employee regarded his employment to be of a casual nature.

The Decision

The Court was asked to consider whether Parliament intended the words “casual employee” in the legislative provision granting the entitlement to annual leave to be used in their ordinary sense, their legal sense or a specialised non-legal sense.

Ultimately the Court found in favour of the employee and settled on a characterisation of “casualness” as involving an “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work“.

The rationale for this is that employees who don’t have this firm advanced commitment will have the capacity to enjoy breaks from work when they choose, and therefore do not need to be guaranteed annual leave.

What a “no firm advance commitment” looks like

The Court outlined a range of indicia relevant to a characterisation of casualness, including:

  • irregular work patterns;
  • uncertainty;
  • unpredictability;
  • intermittency of work; and
  • unpredictability

Taking Stock

The decision has led employer groups to call for changes to prevent casual workers “double dipping” by claiming annual leave on top of a casual loading, and for a clear definition of “casual employees” in the legislation.

Unions have responded to the decision stating that there could be a sizable proportion of employees who have been incorrectly characterised as being engaged casually, and that those that have been in regular and predictable work patterns may be entitled to paid annual leave.

PCS recommends reviewing how your organisation engages with its casual workforce. It is risky for organisations to rely simply on the fact that an employee has been engaged on an hourly basis or that the applicable award or agreement provides for a definition of casual employment where this does not match the actual form and manner in which casuals are in fact engaged.