Assessment Task - Disciplinary process

Instruction for the student

This is an individual assessment. You are required to answer all of the questions below, and include examples where appropriate. Please ensure that you have answered each question with an appropriate level of detail.

Read the following case study that relates to the discipline and termination of an employee, you are required to develop a clear argument to support the decision of Fair Work Australia, conduct a risk analysis and consider relevant policies and procedures, legislation and performance management issues to support your argument. You are required to produce a written report for your manager as to why your organisation lost the case.

Case Study

Sam is a programmer at a small security company. She has recently missed a couple of deadlines on a project. Sam has been pretty upset about this. She is a diligent worker, however the organisation has started working on a new programming language and Sam is not familiar with it.

You are Sam's manager and are familiar with your predecessor's methods for dealing with her. She would come out and yell at Sam and then go back to her office. Sam has a staff files show that there have been no verbal or written warnings recorded against her.

As Sam's manager you have been managing her more effectively. You have been spending time to try and understand Sam's issues and have reallocated resources in order to give Sam some extra time until she is confident and competent in using the new programming language. You have not specified any timelines for a performance review to discuss progress in meeting the required standard of performance or taken notes. You have also offered extra training to her.

However in a meeting about her inability to meet her latest deadline, Sam physically struck you and walked out of the office. She has not returned.

Sam contacted her doctor after the meeting and was given a medical certificate claiming stress as the reason for her absence and given 7 days leave. This was sent to and received by the organisation on the day following your meeting with Sam. Sam called and verified with the Human Resources department that the certificate had been filed within the organisation's systems.

Three days after your meeting with Sam you advised your supervisor that she had struck you and has since reported in ill; this advice being received from the Human Resources department. A meeting between you, your supervisor and the Human Resources department is convened and a decision is made to dismiss Sam on the basis of serious misconduct. A letter was sent by registered mail to Sam's personal mail address.

Two days later Sam filed an unfair dismissal claim with Fair Work Australia (FWA). The organisation received a letter from FWA to attend a hearing.

Sam wins the hearing as no evidence was provided by the company to support its case of dismissal on the grounds of misconduct or serious misconduct.

The hearing went in Sam's favour for the following reasons:

- The employer failed to follow a formal disciplinary process.

- There was no impartial investigation carried out.

- There were no records of any notes provided by the employer to back the claims that there had been meetings and reviews. The only written evidence produced was the termination letter.

- The original version of the medical certificate was not produced in the hearing by the company.

- Sam produced a verified copy of her medical certificate in the hearing along with email evidence from the Human Resources department confirming that the medical certificate had been received by the organisation and entered into its files.

- No documented evidence of any meetings, coaching sessions had been kept by the employer.

- No performance management review or development plans were presented by the employer.

- There were no copies of signed agreements reviewing Sam's progress (performance reviews and development plans) submitted by the employer.

- No written documents outlining timelines were given for monitoring or reviewing Sam's progress were submitted by the employer.

- No formal disciplinary hearings had taken place prior to Sam's dismissal.

- Sam was not formally stood down while an investigation was carried out.

- There was no physical evidence to support the serious misconduct claim that the manager has been struck as no witnesses were called to verify whether an attack had taken place.

- No senior managers or Human Resource department specialists were present in any meeting where Sam was being warned of poor performance.

- There was no evidence to support the claim of misconduct by Sam. The manager had not documented any written warnings in Sam's file. The only agreements that had been reached between Sam and the manager were verbal.

Sam was awarded costs of approximately $5, 000 for lost salary and wages and a further $5,000 for emotional distress.

After the decision was handed down, Rob, the Senior Human Resources Manager approaches you to discuss the reasons behind the decision going in favour of Sam. Rob wants a written report on his desk by the end of the week giving the background and reasons why the decision went in Sam's favour against the organisation.

As part of your brief from Rob, he would like to see a completed risk assessment identifying areas that the organisation needs to address and implement in order to prevent this type of situation occurring again. The information in the report will guide whether the organisation will pursue an appeal on Fair Work Australia's ruling.

Based on the findings of your report, Rob decides not to proceed with an appeal but to develop and implement a new Performance Management System.

Rob recommends that the organisation follow the two processes as outlined below to handle:

a) Performance Reviews for all staff

Questions

Prepare a report that outlines and discusses the following:

1. Critically analyse the case and discuss the reasons why the organisation lost its unfair dismissal case with Fair Work Australia.

2. Outline a risk analysis of the case and strategies to mitigate future risks should similar situations arise.

3. Using examples from Sam's case, describe the conditions under which misconduct and serious misconduct may be deemed to exist

4. List any legislation that applies and any internal policies and procedures that may have applied in situations similar to Sam's case

5. Develop policies and procedures that an organisation would need to implement to avoid a similar situation occurring and to ensure that disciplinary hearings and terminations are considered to be fair and reasonable

6. Outline what documents would have to be developed for the organisation to evidence that it has implemented a process to support non-performing employees?

7. Using Sam's case as an example, describe how all steps of the performance review process and disciplinary hearing process (given to you by Rob) should have been performed as per legal requirements and the organisational policies you have developed. Include:
o What should have been done at each stage
o when and where assistance from HR specialists would have been appropriate
o What support services could have been deployed in Sam's case
o What documentation would have been appropriate at each stage

To be deemed competent you will need to successfully demonstrate the following:

- You must complete and successfully answer all questions.
- You must apply the necessary knowledge to monitor, review and document the outcomes of a disciplinary hearing, using a case study.
- You must show evidence of due process by following the disciplinary hearing process to substantiate the claim to dismiss an employee.
- You must carry out a risk analysis of the case study and strategies to mitigate the effect of any identified issue in the future.