A successful appeal of a recent unfair dismissal case in which a childcare worker was fired after leaving a child unattended has highlighted the need for businesses to document discussions about performance – and make sure it stays on file.
The incident comes as legal experts stress the importance of documenting disciplinary actions with employees, as a lack of evidence can play a big part in an unsuccessful termination.
“It’s very common for employers to reach a level of frustration with an employee, and then a particular event occurs which warrants disciplinary action which becomes the basis for the termination,” says M+K Lawyers partner Andrew Douglas.
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“But when they’ve counselled employees they’ve never made notes and so when they go to give evidence they have nothing to provide.”
Mary Read was fired from the Gordon Square Child Care Centre after it was found she left a child unattended for a few seconds while she answered the phone. The centre said this was in breach of the workplace code.
The original hearing declared the business was in the right. But on appeal, the Fair Work Commission said other factors were involved, including the fact Read was the only employee on staff, and that she was only five metres away from the child.
But there is another aspect of the case which should make businesses pay attention.
The employer attempted to show it had disciplined the employee previously.
“Many of the issues related to the Applicant’s performance relied on by the Respondent are generalised and are not supported by any evidence. Most relate to events that occurred prior to February 2010 with no evidence of continuing problems of that nature,” the ruling states.
This means the business tried to show evidence the employee had been disciplined before. But it was unable to show any evidence to that effect.
Douglas says if the company had been able to show evidence, the verdict may have gone the other way. He warns businesses to strictly document every type of disciplinary action which occurs – it’ll make everything go smoothly if you need to get rid of an employee who isn’t up to scratch.
“The court is obliged to take that evidence into account,” he says.
“You can terminate somebody because you’ve given three warnings, and you can do it for a lesser breach, but you can’t terminate someone for merely a warning if you don’t have these past processes in place.”
“And it’s not just documentation. You have to follow that process up with performance management, so you can show you’ve provided the person the opportunity to improve.”