Difficult conversations at work

Written on the 30 May 2014 by Macmillans Waller Fry - Accountants in Maitland

Avoiding difficult conversations in the workplace can increase the potential for legal claims, and reduce the employer’s ability to successfully defend these claims.

It is understandable why employers often avoid having difficult conversations with their employees as it can be an awkward and time consuming process.

An employer may need to have a difficult conversation with an employee in a variety of situations, such as:

• giving ongoing performance feedback and performance reviews
• disciplining for poor performance or inappropriate behaviour
• giving notice of termination of employment

To ensure that difficult conversations are not avoided employers should take steps to make sure that their supervisors and managers are educated about the importance of honest and timely communication with their staff.

It is also important that supervisors and managers have the necessary skills to carry out difficult conversations in an appropriate manner.

Employers should also ensure that they keep detailed written records on conversations that take place with employees so that there is evidence of the communication.

The following are some potential legal risks that can arise from avoiding difficult conversations in the workplace:

Anti-bullying claims

New anti-bullying laws came into power on 1 January 2014 which have given workers experiencing bullying a new sphere of protection.

Raising underperformance or misconduct issues with employees at an early stage can help to reduce the chances of accusations of workplace bullying.

Unfair dismissal claims

A key element of procedural fairness is warning an employee about their unsatisfactory workplace performance and giving them a genuine opportunity to respond. Skipping this step may be found to be unfair by the Fair Work Commission.

Also, in the case of a genuine redundancy, an employer must be able to show that they have met any obligations they had under a modern award or enterprise agreement.

Adverse action claims

Having a conversation with an employee about their underperformance or misconduct can help the employee understand the reasons for decisions that may adversely affect them.

This will reduce the risk that employees are likely to suspect and argue that the decision was made for a prohibited reason, such as on a discriminatory ground.