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The One Thing You Must Do Before Firing That Problem Employee (Hint: It’s Not What You Think)

Is Your Team Member Not Pulling Their Weight? Here’s Why Procedural Fairness Can Save You a Headache 

It’s frustrating when someone on the team isn’t meeting expectations (whether performance and/or behavioural). Your first instinct might be to show them the door, but hold on – there’s a critical step you might be missing: procedural fairness. When you hear the term ‘procedural fairness’, it is not just a popular phrase, it’s actually a step, or a number of steps that need to be taken in order to reduce your risk of an unfair dismissal claim being brought forward against you as an employer.  

The Problem: Underperformance and Hasty Decisions 

Underperforming employees don’t just impact your bottom line; they can also drag down team morale. But moving too quickly without following proper procedures could backfire, leaving you open to legal challenges.  

The HR Solution: Ensuring Procedural Fairness 

In short, procedural fairness is all about giving employees a fair chance. It is not necessarily about the decision that was made to end an employee’s employment, it is about the decision making process that was followed or the steps the employer took. Here’s what you can do: 

  • Document Everything: Keep detailed records of performance reviews, conversations, and any feedback given. This will be essential if a dispute arises. 
  • Offer Training: Before jumping to termination, provide the employee with clear expectations and the resources they need to improve. Sometimes, underperformance is due to a lack of training, not lack of effort. 
  • Offering the employee a reasonable amount of time to respond to any matters raised with them.
  • Give the employee a reasonable opportunity to correct their conduct or improve their performance.
  • Direct and clear conversations with the employee about their conduct or performance – that is, telling them what you expect to see from them.
  • A warning or number of warnings – verbal and written with clear specifics of what the warning is for.
  • Offer Support: Offering the employee a support person be present for them during these difficult conversations.
  • Conduct a Fair Process: Give the employee a chance to respond to feedback. This not only shows fairness but could also uncover issues you weren’t aware of. 

These are just some common examples of steps an employer can take in practice, before the a decision is made to end employment. 

I’m sure you’re sitting there thinking, but I have given so much, I have tried with this employee and I don’t have any confidence there will be a positive change, Any maybe you’re right, but we also know, this is an all too common phrase we hear from employers, and in the eyes of the Fair Work Commission, they “haven’t tried” enough to dismiss a claim brought against them.  

The employment law is everchanging, new case precedents are constantly flowing through and in most circumstances, employers are required to disprove what an employee alleges (if you find yourself in a formal dispute resolution setting). So while you may want to run a thousand miles from these steps, skipping this process can lead to costly disputes and claims against you personally, your business and require you do harder things. 

One business we worked with had a problem employee whose performance was slipping. Instead of immediate termination, they had a clear conversation with the employee about behavioural and performance expectations in a brain friendly way. They didn’t even have to go down the path of implementing a formal performance improvement plan (PIP). The result? The employee turned things around and again became a positive contributor to the team, overall business objectives, and the business avoided a costly legal dispute.