Do not avoid having the ‘difficult conversation’ – be prepared for it

Experienced industrial relations, employment law practitioner, and ELM workshop facilitator Aaron Goonrey of Lander & Rogers gives us his exclusive insights into the topic of managing difficult employee behaviours in this concise Q&A. Don’t miss the final point he makes on the topic below.

ELM: Interest in the topic of “difficult employee behaviours” seems to be on the rise in workplaces across Australia. In your years of experience and regular appearances in employment and IR related proceedings in various courts and tribunals, what are the three most common issues that employers are dealing with? Any thoughts on why these?

Aaron: This is an enduring theme for HR practitioners, particularly given the tangible and intangible costs of managing difficult employees or dealing with the impact, even if you get the outcome right.  In my view, the three most common issues that employers are dealing with, or not dealing with as the case may be, are:

  1. Not wanting to confront an employee because the employer’s representatives personally find it challenging and anticipate that the employee will as well; people inherently don’t like conflict and they tend to give nondescript and mixed messages which don’t convey the full picture or extent of the problem.
  1. Not training line managers to deal with performance and behavioural issues (such as harassment and bullying) as and when the issues arise.
  1. Failing to investigate (properly or otherwise) complaints about unsatisfactory workplace conduct.

ELM: In the last six months to a year, has there been any new trend/issue that employers have started encountering? Assuming our readers are unaware of how to deal with this, what legal obligations do employers have in this area?

Aaron: In my experience, there has been a trend towards employees increasingly claiming that they are being bullied or harassed when an employer is reasonably managing that employee’s performance or behaviour.

Employers are also becoming increasingly aware of their obligations to employees in relation to mental health and are taking proactive steps to ensure that employees take care of themselves and others:

  • Under various health and safety laws there is an obligation for the employer to ensure a safe and healthy work environment.
  • Various unlawful discrimination laws prohibit discrimination in the workplace. An employer may be held liable for acts of unlawful discrimination or harassment if it cannot demonstrate that it has taken all reasonable steps to prevent that conduct from occurring, and that it has taken all appropriate action in responding to complaints of workplace discrimination or harassment.

ELM: Any suggestions then how can our readers prepare to avoid non-compliance?

Aaron: What your readers can do, as a first step, is undertake:

  • workplace training for all employees to educate them as to appropriate workplace behaviour and their obligations under the various laws that regulate their interactions with one another;
  • introduce policies addressing expected workplace behaviour (and behaviour at work-related functions); and
  • monitor workplace behaviour and encourage employees to raise issues with one another, or with HR and management if it remains unresolved or is of a serious nature.

ELM: We understand that conducting a workplace investigation can be one of the most daunting tasks for a HR team, especially one with little experience. What are your top tips on conducting a procedurally fair and “defensible” workplace investigation?

Aaron:

  • Ask yourself from the outset, is the issue serious enough to warrant an investigation?
  • Be impartial. Do not have any preconceived notions about who is right and who is wrong.  If you think you cannot be impartial, seek assistance from a colleague or an external source.
  • What exactly is being investigated? Make sure you know what it is that you are investigating. Get all the facts, be informed, and ask questions of the complainant before you go down the (sometimes very long) path of questioning relevant witnesses and the alleged offender/s.
  • If there is an investigation policy, follow it! Many an investigation has been subject to a vigorous review by a tribunal and court, which has found that an investigation didn’t follow the employer’s own policy!
  • Any findings from an investigation must be based on fact not fiction (or “what your gut tells you”). You have to afford everyone the opportunity to tell their side of the story.

ELM: It isn’t often that a company has a standard time or process for a HR and In-house legal team to consider outsourcing a “difficult employee” issue to a law firm; this is largely due to the nature of the issue I assume. If you did have to advise our readers on benchmarks to start the outsourcing process, what factors should be considered? When is a good time to “nip it in the bud”? Is it always reactive?

Aaron: There are times when we are involved at the “reactionary stage” of managing a difficult employee issue.  This can be when an employee claims they are bullied, they are stressed by being “over managed”, or that they have been constructively dismissed.  However, in my experience, most HR practitioners and managers perform a “sense check” early on in the management process.  Many organisations are taking the view that it is better to confirm that what they are doing is correct from the outset, rather than risk the cautionary tale that many of us read.  That is not to say that every single difficult employee issue requires the assistance of a law firm but when in any doubt, seek advice – don’t wait until the situation escalates.  It is also the case that many organisations simply do not have the experience or expertise to deal with such issues.  There are also situations where it is immediately apparent that the size of the potential risk or damage to the organisation is better dealt with by external expertise.

ELM: You’re facilitating the Sydney masterclass on Managing Difficult Employee Behaviours; what are the three key messages you will be educating the attendees on?

Aaron:

  1. Do not avoid having the ‘difficult conversation’ – be prepared for it. Embrace it. Managing employee behaviour is about improving the behaviour not some other (often misconceived) reason.
  2. Intervene and address the behaviour early – don’t wait for the behaviour to escalate or be mimicked by others.
  3. Educate your:
    • employees about what is expected of them – do not assume that everyone knows the rules; and
    • managers on what their role is in supervising the employees – they are responsible too.

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About Aaron Goonrey:

Aaron has practised in the areas of industrial relations and employment law since 2001, with Lander and Rogers covering all aspects of these speciality areas. Aaron appears regularly in employment and industrial relations related proceedings in various courts and tribunals including the Federal Court, the Supreme Court of NSW, Fair Work Australia, the Industrial Relations Commission of NSW, the Anti-Discrimination Board of NSW and the Administrative Decisions Tribunal. Aaron’s areas of expertise include:

  • anti-bullying and victimisation;
  • employment;
  • industrial relations, including enterprise bargaining and disputes;
  • international and local secondments;
  • unlawful discrimination;
  • the planning of termination of employment strategies, including large and small scale restructures;
  • unfair dismissal and termination of employment claims; and
  • workplace training.

Aaron was the workshop facilitator for the Sydney edition of the masterclass on Managing Difficult Employee Behaviour, where he received excellent reviews for his presentation’s content and delivery. Aaron was also one of the key employment law firm speakers at the HR Law Masterclass series, where he received fantastic feedback for his presentation in Sydney.