The issue

Last week, a client called me to enquire about what rights they had in relation to an employee who had failed to attend for work, failed to notify them and failed to take the call or respond to their call to his mobile phone.

When I delved down into the situation, I learned that:

• the business has more than 15 staff
• the employee is a young man who has completed an apprenticeship with them and been with them for about 4 years 
• another of his family members with whom he lives also works in the business
• the employee would normally come to work with that other family member who did come to work that day and told the employer that this employee was still in bed
• it was not characteristic for the employee to do this and it hadn’t happened before
• they had noticed a deterioration in his attitude and had to speak with him about his performance recently
• things were a bit quiet for the business
• there was no record of any disciplinary action eg no formal warnings or anything for that sort
• they didn’t have any disciplinary procedure

So what advice should I have provided?

Being a large business employer brings procedural responsibilities

As much as we might think that the 15 employee threshold for a business to be considered a large business employer under the Fair Work Act 2009 is grossly unfair (which it is), those are the rules and we have to live with them.

This means that the employer in this case has to be much more conscious of going through the right process in any actions that they might take against an employee than a small business employer would. Those processes need to be fair and provide the employee with the opportunity to respond to any allegations made against them and any actions proposed plus decisions need to be evidence-based – on the balance of probabilities – if they are going to be defensible in the event of a formal complaint being made eg of adverse action or unfair dismissal.

There is now also the added factor of psychosocial hazards which include “poor organisational justice”.

 There was a vulnerability here because the employer had neither the policies and procedures nor the experience and skills to be able to deal appropriately with this issue in a demonstrably fair way.

Where the external environment comes in

I made note of the fact that the employer had said that this hadn’t happened before with this employee but they had noticed a deterioration in his attitude of late. I then asked whether they had any knowledge of anything going on in his life that might account for that either directly or through the other family member that worked with them.

This didn’t draw a great reaction – there was an immediate protest along the lines of: “You’re kidding me! Employers can’t be responsible for what happens with employees outside work, they have a job to do and they either turn up and do it or they can go.”

Well, I had to say: “sorry but it isn’t that simple”.

What is happening with an employee outside work can impact on:

• the employee’s state of mind and physical, emotional and mental health and
• their related fitness to attend for work and to perform their duties to the desired level and 
• the employee’s attendance for work and
• their relationships at work and outside work plus
• there could be things going on at work which are also having an impact. 

Of course, I told her that she isn’t responsible for the employee’s behaviour outside of work but I also said that she needed to take into account factors that might be affecting his attitude and performance whether they were work-related or not.

This is especially the case when there had been a noticeable change in the employee’s attitude and behaviour, there hadn’t been any such problems in the past and no record of disciplinary action. I told her to be curious and find out what has caused that.

That gives the opportunity to deal with what the real underlying problems are rather than just treating the symptoms (ie deteriorating attitude and unnotified absence). Then you can hold the employee accountable for whatever commitments flow from that.

We also know that sometimes an employee is having a tough time in life and by being curious and non-judgmental, we might find out something that is important – like a domestic violence situation that the employee might need help with. 

Bottom line – approaching these situations with curiosity and kindness will deliver much better results than just disciplining people.

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance with any issues like this in your business.