Check restraints before moving to dismiss

07 May 2012 7:25am

One of the many things employers should do before moving to dismiss someone is check the restraint and confidentiality clauses in their employment contract, says employment lawyer Brad Swebeck.

Reminding the employee of these in their termination meeting can help prevent costly headaches later, he says.

"Are there any restraints or confidentiality agreements that you need to remind the employee of? Employers often forget [about this], or an employee is dismissed and then they hear about the employee raking around clients and the employees that are still there, trying to poach them," Swebeck, a partner at Hicksons Lawyers, said in a presentation for HRD+ subscribers.

"Everyone's excited when they're signing a contract and half the time they look at those things and think, 'It won't be enforced against me so I'll sign up'. But the reality is, when they get to the end of their employment and it's all ending in tears, the first thing they'll go to their lawyer about is the restraint provision, and say, 'How do I get out of this?'

"It's one of the first conversations they have with their lawyers. So in that instance it's always worthwhile having in your [pre-dismissal] checklist, that prior to the employee going, you've explained to them the importance of the restraint and confidentiality provisions; that you rely on them; and that any breach will be met with immediate action being commenced without further notice to the employee.

"You can have a little document for the employee to sign acknowledging that you've had that conversation. In many cases they do sign it because at that stage they don't understand the importance of it. If they don't sign it, it doesn't matter - just file note the conversation. That's why exit interviews are important, particularly with a witness, so the witness can also confirm you had that conversation."

That way, he says, "if you need to get some interlocutory proceedings commenced, you can produce that as evidence as to why the restraint should be enforced until there's a fuller and further hearing".

Performance-based dismissals

Another of Swebeck's pre-dismissal tips is to make sure all employees have adequately detailed position descriptions.

"You've got to have a measuring stick. You can only measure performance against the job. How do you determine if someone is performing or not? You need to go to the position description. And how often do you go to a position description and you see three lines? It's nonsense."

In Swebeck's view, "the more descriptive and lengthy the position description is - and it has to be in simple English - the better the employee will understand if he or she is performing. And if you're going to performance manage someone you can always point to aspects of that performance or parts of that position description where you say performance is not being met".

"If you have a really flimsy position description it makes it really difficult for you to point to parts of that work or job that you say the employee isn't performing in."

Employees shouldn't be "ambushed" in performance meetings, he stresses.

"Don't forget, when you start to performance manage somebody, you've always got to be thinking in the back of your mind that this could lead to termination of the employee.

"Let's assume you have a manager presenting to you a position paper basically saying, 'We think this employee should be dismissed'.

"You've got to be asking, 'How did you measure performance? What prior meetings, formal and informal took place? In the formal meetings, was procedural fairness offered? Were they told what the meeting is going to be about?

"Sometimes there are reasons why you won't tell someone... [but] in the majority of cases, if you're going to performance manage someone, you've got to tell them what the issue is so they can at least get their head around where it's going so they can respond properly.

"This tactic of ambushing employees is just a nonsense, and Fair Work Australia and the NSW IRC don't like it. They see it for what it is and they can be highly critical of the employer's tactics in any decision finding for unfair dismissal."

Separate policies needed for dismissal contexts

Employers need to keep in mind different factors and follow distinct processes for the various types of dismissal, Swebeck says.

"In my experience, when I am speaking with someone about a termination and he or she will say, 'It's all dealt with in our policies', when I look at the client's policies, I find there's no distinction between discipline, performance and misconduct. And those three grounds for termination should have their own procedures," he says.

"If you're looking at misconduct, for example, that will have steps involved about procedural fairness, allegations being put forward, the right to representation, witnesses, and investigations - they're very important. For serious matters, you should have a policy dealing with whether the investigation should be outsourced, or whether the investigation should be done in-house."

Swebeck outlines the various considerations for each type of dismissal in his presentation for HRD+ subscribers (see "premium content" link below). He also provides an overview of things to consider during the steps leading to a dismissal, to minimise the risk of unfair dismissal, adverse action and other claims.

Click here to watch the webcast, or update your subscription to HRD+ Gold for access. (Gold membership also entitles you to attend our upcoming live webinar on redundancies, and all future online events.)

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