• Mark Shaw

Why Reasonable Management Action carried out in a reasonable way is critically important.

Many years ago I assisted the owner of a small suburban legal firm manage a difficult employment situation:

The employee in question was, in alphabetically order:

  1. Ethnic Indian 

  2. Female

  3. Inexperienced

  4. Pregnant

  5. Young

  6. ….. and not performing in her job.

The owner was concerned about how to have the “difficult conversation” with her given the potential minefield of harassment, bullying, discrimination and/or unfair dismissal.

While the approach we recommended may look similar to that suggested by the Fair Work Commission’s managing underperformance methodology (see, there is a significant difference.  

We focused on the management problem caused by the employee’s behaviour.  I.e. in the above case the management problem caused by the employee’s “poor performance” may have been described as “when you do not follow our procedures correctly, I have to spend time double checking your work or dealing with upset customers”.  

We then helped the manager and employee discuss and agree on the management problem, develop a plan to overcome it and implement the plan. In the above case the employee resigned.  Statistically over 20 years, we find that in more than 50% of these situations this approach results in the employee returning to be a productive and valued member of the workforce.  The remainder resign or are occasionally terminated.

You see the goal is not to terminate the employee; it’s to resolve the problem.

Remember legally, a manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried-out. In doing so they must ensure reasonable management action is carried-out in a reasonable way.

In my experience, the best approach to the ‘difficult conversation’ is to identify and discuss the management problem.  Whatever the issue (i.e. bullying, harassment, victimisation, adverse action, poor performance etc) for the past 20 years this approach has worked.  I.e. this approach has successfully:

  • Solved the problem

  • Met all requirements of ‘reasonable management action taken in a reasonable way’

  • Worked in any industry

  • Supported existing policies

  • Applied to any employment category (including mangers)

  • Defended the management action where an appeal was lodged with Fair Work Commission or its equivalent.

Here is my challenge for you.  Continue to follow the traditional approach and policy settings with its known mixed results or focus on identifying and resolving the management problem and achieve proven outcomes.

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