22 June 2015

Minding Your Own Business

Leave your personal problems at home. It’s one of those commonsense sayings that we assume everybody abides by. But what if there’s an employee in your organisation that just can’t help wheeling their cabin sized emotional baggage to work?

How badly can personal issues affect an Employer? 

In a recent unfair dismissal case[1], a manager going through a divorce was justifiably terminated after his circumstances began to adversely affect his work performance. Not only would the manager bring his own laptop to work so that he could prepare his divorce case during business hours, but he allowed his personal issues to impact his employer through his:

  • unresponsiveness to his clients and colleagues; 
  • lack of leadership and guidance as a manager;
  • threatening and erratic behaviour;
  • poor and tardy attendance to work; and
  • bullying claim which was lodged after his manager attempted to discuss performance concerns with him.

The manager took things a step further by drawing the employer into his personal issues by sending his ex-wife abusive messages from his Linkedin account bearing his employer’s name. The messages came to the employer’s attention when the ex-wife called head office to complain about the threatening messages.

The manager’s employment was terminated upon the advice of an independent investigator that concluded his conduct had caused an irreparable breakdown in the employment relationship. The manager made an application for unfair dismissal, however the Fair Work Commission sided with the employer that his poor conduct justified termination.

But it’s none of my business

As demonstrated in the above case, an employee whose focus is disrupted by personal problems can have an impact on an employer that is greater than a just a downturn in productivity. Whether or not the allegations were proven, the Applicant, as a manager, failed to conduct himself in a “cooperative and civil way” or show the “desired suite of managerial traits”. 

Employers should not be afraid to take control in circumstances where someone’s private life interferes with their work. Sometimes an employee’s personal circumstances will necessitate leniency but there is a limit on conduct that an employer is expected to ignore.

What can you do?

Mismanaging employees that are dealing with personal issues can increase the risk of an employer facing an adverse action, bullying or unfair dismissal claim. Here are our top five tips for striking the balance between being a compassionate but fair employer:

  • Take preventative action: If you notice someone struggling in the workplace, see if you can point them in direction of the help they might need. Provide your employees with a safe outlet to address their personal challenges by offering Employee Assistance Programs.
  • Speak up: Don’t let your silence be construed as tolerance if an employee engages in behaviour that is inconsistent with the expectations of your organisation. Convene a meeting as a matter of urgency to bring the concerns to a head and propose a resolution.
  • Take a breather: Perhaps the employee and the organisation may benefit from some time apart to deal with the issues at hand. Noting that only in particular circumstances can an employee be directed not to attend work, consider granting a period of leave to the employee if they request it. 
  • Investigate where necessary: Lack of procedural fairness can be an employer’s undoing in termination disputes. Investigate grievances that involve the troubled employee, ensuring each party has the opportunity to have any mitigating circumstances heard. Consider using an independent third party for guaranteed impartiality.
  • Set the scene: If an employee is commits serious breaches of their obligations to their employer, a written warning or dismissal may be warranted. Make sure you include sufficient detail and context in your warning or termination letter to make clear to the employee (and potentially the Fair Work Commission) why you have taken disciplinary action.
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