Dealing with employment relationship problems is all about process, process, process, writes Mike Kyne from Kyne Management Services.

Monitoring and documenting an employee’s working journey can be difficult. We tend to rely on earned trust and a commitment from employees to work diligently, learn and progress to become a reliable asset to our companies.

Unfortunately, some employees can’t, or don’t, want to meet your expectations and can create a dysfunctional working environment. This usually causes a sense of frustration for you, and it is important you don’t react emotionally and say or do the wrong thing.

To avoid being exposed to a grievance this way, stand back from the situation and pause, analyse the issues, decide on the process you want to follow and then apply that process.

DO NOT:

• predetermine or be prejudicial
• make assumptions based on emotion rather than the facts
• preempt responses or explanations based on your thoughts and feelings
• let emotions override common sense, logic, and your responsibilities.

DO:

• be fair and reasonable
• ask for and fully consider all explanations provided in a neutral way
• be open and transparent in your dealings with the miscreant.

Before making any decision, ensure it is made on the balance of probabilities.

CONSIDER:

• Have I been fair, reasonable, and impartial in my decision making?
• Did I gather all the facts available to me to consider?
• In determining any outcome, did I properly weigh up the evidence available in an impartial way?
• Did the miscreant have a full opportunity to explain and be heard?

Having a good working knowledge of Section 4 of the Employment Relations Act is important.

Parties to an employment relationship must deal with each other in good faith.

(1) The parties to an employment relationship specified in subsection
(2) —
(a) must deal with each other in good faith; and
(b) without limiting paragraph (a), must not, whether directly or indirectly, do anything —
(i) to mislead or deceive each other; or
(ii) that is likely to mislead or deceive each other.

(1A) The duty of good faith in subsection
(1) —
(a) is wider in scope than the implied mutual obligations of trust and confidence, and
(b) requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative, and
(c) without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected —
(i) access to information relevant to the continuation of the employees’ employment about the decision, and
(ii) an opportunity to comment on the information to their employer before the decision is made.

Section 103A is the test of justification which is the standard the law looks at to compare if your process was fair.
It says:
For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

In summary, if you notice a problem, see a potential problem or are confronted by a problem, handle it now. Don’t ignore it in the hope it goes away, because it won’t. It will only escalate with aggressive human emotion.

To assist your process, seek advice to ensure you comply with the legal process requirements. Two heads are better than one in obtaining a pragmatic outcome.