Managing employees for health and safety performance

By Andrew Hobbs on October 20th, 2017

Occasionally, business-owners and managers need to take action to address underperforming or badly behaving workers within their organisations, including workers who take unnecessary health and safety risks. Often, this is accomplished by implementing a performance management program. However, this can result in successful claims of bullying or workers’ compensation if not handled correctly, says Health & Safety Consultant Editor-In-Chief Andrew Douglas.

He warns employers conducting performance management programs to have a robust paper infrastructure around people management programs and ensure they comply with the law.

Andrew says in Australia, workers’ compensation claims cannot be successful if they result from reasonable management action.

To determine whether management action is reasonable – and therefore whether the exclusion applies – the courts look at the legal duties of the employer and employee, and then review what has occurred against those duties.

This is where that solid paper infrastructure helps you to manage your employees, says Andrew. He suggests this can be achieved through:

  1. Employment contracts that describe the job and the employee’s obligations.
  2. Job descriptions that set out the employee’s duties and responsibilities.
  3. Policies and procedures that describe what good behaviour is and how bad behaviour will be managed.

The law is very clear that employees are required to undertake their duties honestly, competently and in the best interests of their employer. They are also required to comply with the lawful and reasonable directions of their employer, including complying with the policies and procedures of the business.

The Fair Work Regulations (2009) make it clear that failure to comply with a lawful and reasonable direction is serious misconduct.

Health and safety legislation in Australia also imposes duties upon workers to comply with directions relating to health and safety.

Combining your health and safety obligations with your workplace obligations is lawful and reasonable.

Obligations to perform

Underperformance and poor behaviour can be a hazard. Employers are obliged to address this with the employee and the employee is obliged to perform in accordance with the employer’s directions.

If the employer addresses the issue in accordance with the policies and procedures of the business, it is undertaking a lawful and reasonable enterprise. It is not bullying to point out a failure in performance or misconduct.

If an employee claims to feel stressed or upset by the performance management program, the employee is disclosing a hazard for which the employer needs to reflect, determine the level of risk and implement an appropriate control, e.g. a short break or access to a support person.

If the employer’s decision is fair, based on the nature of the underperformance or misconduct, it acts in accordance with the law and its own policies and procedures, and it communicates that generously, its conduct is unimpeachable. This gives rise to the reasonable action defence in both bullying and workers’ compensation law.

Points to remember

While you are entitled to take reasonable action against an under-performing employee, you should not do so in an unreasonable way.

The Health & Safety Handbook has recently just revised its P1 Performance Management chapter, showing you how to avoid potential bullying claims, as well as how to get the best out of your workers who may be underperforming for any number of reasons.

The chapter provides a checklist of what to consider when responding to unsatisfactory performance, as well as what to consider when deciding whether to discipline a worker.

It also has templates for a formal performance appraisal and a performance management plan.

The chapter is one of more than 70 in the Health & Safety Handbook, all written in plain English by the health and safety lawyers at Holding Redlich.

Subscribe today on an obligation-free trial and put the Health & Safety Handbook to work in your business.





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