OK I admit up front I cannot guarantee that by following the guidelines in this blog you will be deemed to have taken ‘reasonable management action in a reasonable way’ any more that I can guarantee you will not have an accident on your way to work tomorrow.
What I can guarantee is that for almost 20 years I have had a 100% success rate of having had FWA Commissioners (or equivalent) always agree that the management process I will describe met their standard of ‘reasonable management action taken in a reasonable way’ when a management decision regarding bullying, misconduct, unfair dismissal etc was placed before them.
The root of any appeal to a management decision ending up in court lies in the way the manager conducts the ‘difficult conversation’.
Critically I am not saying every conversation; not the performance conversation; not the informal conversation. I am saying the difficult conversation which I define as:
The one after (a) a number of other conversations have occurred between the manager and the employee without satisfactory resolution and (b) the manager realises the situation is beyond their skills and experience to resolve.
To emphasise, the ‘difficult conversation’ is special.
It only occurs after other attempts have occurred and been unsuccessful
It is separate to the conventional ‘performance review’ process.
It is based on an assessment by the manager that things are getting worse not better
Like a budget or business plan, it requires drafting, reviewing and approving
It must be supported by management before commencing.
While each case if different, the approach is the same and is more about the conduct than the content.
Research. What has actually occurred? When? Where? What is the evidence? What are the rules? What breach of these rules actually occurred?
Identify the management problem. This is the most critical aspect and in my experience often requires independent perspective of the situation. E.g. in one case an employee “didn’t do this” and “did that” etc. The real management problem was he continually ‘refused to follow lawful management instructions’. That was the management problem. Occasionally the only problem is the manager’s opinion. By identifying this we resolve the problem without any further action!
Identify the preferred solution. If there is a problem there needs to be a solution. As Albert Einstein said the definition of insanity is “doing the same thing over and over again and expecting different results.”
Secure Management Approval. Once you have your plan, take it to the necessary management level saying “I have this problem for these reasons and I am seeking this solution. If the solution does not occur, will you support a decision to terminate the employee/manager?’ Let them check with HR, the lawyers or anyone else to ensure the evidence is sound, the problems is valid and the process is “reasonable”. If the plan is approved proceed. If not, review and try again.
The ‘Difficult Conversation”. Is built from the plan and contains 5 sections
Introduction: Where the manager sets the reasons for the meeting and the ground rules to be followed.
The facts. Specific questions to ensure agreement is reached on what has occurred in the past
The problem. Once the facts are agreed upon, the manager explains his/her problem.
Consultation on exploring a solution to the problem
Conclusion including a reminder from the introduction that someone will prepare a summary of the meeting for everyone present to sign
Signed summary of meeting. Once the meeting is completed, the nominated attendee prepares a draft summary of the meeting for all to review. Once agreement is reached on what was said and agreed to at the meeting, a formal copy is issued for everyone to sign.
Ongoing management plan. Now there is an agreed and signed document stating “we all agree we had this conversation where we discussed and agreed on these issues; discussed and agreed on this problem and through consultation discussed and agreed on this solution”.
Outcome. Only two outcomes are possible. The individual meets the agreement in which the problem is solved or they breach the agreement in which case further management action including possible termination of employment is considered.
You may be surprised to learn that in about 65% of all occasions the first outcome occurs. In about 25% of occasions the employee resigns without any further actions or claims and in the remaining 10% of occasions, the management decision is to terminate the employee. Finally it is only about 1% of all claims that are appealed.
In conclusion if you agree that there is only a very small percentage of employees where you need to plan, deliver and manager a “difficult conversation” (I’d argue 2%) from which our evidence indicates only about 1/10th will end up in court, perhaps the approach outlined here is more effective and adds move value to everyone involved.
What do you think?
Ps. A copy of the template we recommend can be found at http://neoshr.com.au/wp-content/uploads/2014/02/MAP-template.pdf and a copy of our book “The 2% Effect” can be purchased from http://diarmbrust.com/book/.