Managing Performance and Workplace Standards

Managing PerformanceBLC can assist employers with drafting policies and procedures, advising on what areas to cover and in dealing with employees whose performance of their work tasks does not adhere to the standard required

Implied by law into every contract of employment are a number of legal duties. One of the main duties is the obligation of every employee to obey lawful and reasonable directions of the employer. The issuing of a policy or procedure by the employer is the issuing of a lawful and reasonable direction.

BLC is highly experienced at drafting, reviewing or customising policies and procedures for your workplace. There is no point in having a set of policies and procedures unless they are practical and useful and provide guidance not only on legal obligations but also set the tone and culture of an organisation.

Nobody likes to be criticised and few people give criticism well. The process of performance management of staff who are not performing up to expectation is often a minefield. Not uncommonly performance management processes are the birthplaces of bullying complaints, WorkCover claims and resignations. BLC can support and advise employers on how best to handle such processes and how to minimise risk.

Joanna Betteridge lectures for Monash University in the Law of Workforce Management and she therefore has an extremely high level of expertise in relation to the law in this area.

Senior Executive Contract Negotiation and Drafting

Senior Executive Contract NegBLC can assist employers and senior executives in the formation and dissolution of this key relationship

The relationships between the Board and the CEO or the CEO and his or her most senior executives are the most important working relationships in an organisation and will set the tone and culture of the organisation as well as steering the strategy and profitability of the business.

Joanna Betteridge is an experienced Non-Executive Director and currently Chairs one not for profit organisation and is Vice Chair of another.  She is very well placed to understand the dynamics of those key relationships.

Finding the right person for the role and then negotiating the terms and conditions which will govern the life of that relationship are key steps to a successful working partnership.

BLC can advise either party to that negotiation and can draft or review key contracts.

At the other end of the relationship, there are significant reputational and strategic risks to be managed for both parties.  BLC understands those risks and can work with either party to end the relationship well.

Betteridge Legal Consulting

Betteridge Legal Consulting is an Employment and Occupational Health and SafetyLegal Practice and Consultancy.  Joanna Betteridge is also an Accredited Mediator registered under the Mediation Act 1997.   Joanna consults and advises on all aspects of employment law, legal compliance and risk management.

Betteridge Legal Consulting represents employers and businesses in Courts, Commissions and Tribunals in matters such as FWC bullying complaints, OHS prosecutions and reviews, defence of unfair dismissal and adverse action applications and discrimination and sexual harassment claims.  Joanna advises senior executives in relation to negotiation of contracts and in relation to contract termination issues

Accessing Pornography

A sobering decision for employers wishing to summarily terminate employees for accessing pornography on work phones and computers etc – failing to properly implement and consistently apply a policy and failing to conduct a termination process with procedural fairness might result in a successful unfair dismissal claim by a misbehaving employee …

Manager Sacked for Being Intoxicated

A manager sacked for being intoxicated at work has won nearly $300k in damages from his employer for breach of contract. The court took into account that the employer routinely paid for alcohol for staff. The court also took into account that the manager’s contract read with the company policies did not allow for a summary dismissal for intoxication at work per se but required something more – some aggravating factor.

Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638 (8 December 2014)

OHS Fines Imposed

In recent OHS prosecutions in Victoria the following fines have been imposed by Magistrates:
– fine of $340,000 after an employee of an excavation company was killed when a trench collapsed
– fine of $80,000 after an employee was injured using an angle grinder
– fine of $40,000 plus costs of $8000 against an employer which allowed a risk to exist on a construction site – although no worker was injured
– fine of $2000 against an individual for failing to allow a WorkSafe inspector to carry out a workplace inspection….

Increase in Minimum Wage

Time to gear up for changes occurring from 1 July 2014. Following the annual wage review decision from the Fair Work Commission there will be an increase in minimum wage rates so any employer paying pursuant to an award should ensure they are paying the correct rate after 1 July. The high income threshold goes up to $133,000 from 1 July. Superannuation increases to 9.5% for the 2014/15 year. Transitional provisions phasing in modern awards from 1 July 2010 should be complete as at 1 July 2014 (apart from a few minor matters) and thereafter modern awards will govern wages, loadings and penalties.

New Bullying Jurisdiction

In a decision under the new Bullying jurisdiction, the Fair Work Commission found that an employee had not been bullied by their manager – the main argument being whether or not the managers actions had been reasonable management action carried out in a reasonable manner.

It contains an interesting discussion of what is or is not reasonable behaviour – allowing that some expression of anger is not unreasonable in certain circumstances … and that one instance of unreasonable behaviour does not comprise “bullying” behaviour:

“[65] However, when considered in the context of the whole meeting and the overall situation I am not satisfied that the way in which the General Manager opened the meeting on 30 October was unreasonable behaviour. This part of the meeting on the Applicant’s own evidence lasted only a matter of seconds. It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger. It was reasonable management action in all of the circumstances for the General Manager to forcefully communicate in both words and body language that the way in which the Applicant was interacting with him was unacceptable and that it could not continue. I accept that if this behaviour was then reinforced by repeated similar behaviour then the behaviour at the October 30 meeting should be considered in a different light and contribute to a finding of unreasonable or bullying behaviour.

[66] I agree with the Respondent that determination of whether or not behaviour is unreasonable must be done objectively. What was known or should reasonably be known about the situation of particular individuals, including their physical and emotional situation, is part of the objective circumstances. However, just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable. The General Manager had no reason on 30 October to believe that the Applicant was suffering from any illness or was particularly vulnerable.”

“[100] I have found it difficult to reach a conclusion in this matter. However, the only instance of unreasonable behaviour which I have found was the behaviour of the General Manager at the meeting of 28 November 2013 in failing to properly respond to the request for a support person at future meetings. I considered that the actions on 27 November 2013 in sending the Applicant home may have been unreasonable behaviour but on fine balance concluded that it was not. I have earlier found that the angry and aggressive tone utilised by the General Manager on 30 October 2013 should be considered in the context of subsequent actions. Considering all of the matters I am not satisfied that there were repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.”

Employer Tries to Avoid Paid Entitlements

A large fine, $313,500 has just been handed down by the Federal Circuit Court against an employer who engaged staff as independent contractors rather than employees in order to avoid making payments to them that they would have been entitled to as employees such as various allowances, leave and superannuation. The court was highly critical of the company and its “sham contracting” arrangements – a warning note for all employers to ensure any arms length contracting arrangements are not employment contracts by another name.