It is understandable why employers often avoid having
difficult conversations with their employees – it can be an
awkward, emotionally draining and time consuming
However, avoiding those conversations can not only have a
negative impact on workforce morale and productivity and increase
the potential for legal claims to be brought by employees, but also
reduce an employer's ability to successfully defend any legal
WHEN MIGHT DIFFICULT WORKPLACE CONVERSATIONS BE NEEDED?
An employer may need to have a difficult conversation with an
employee in many situations, which may include when:
giving ongoing performance feedback
conducting formal performance reviews
engaging in a disciplinary process for poor performance or
dealing with workplace grievances or conflicts, including when
conducting workplace investigations
consulting about major workplace changes
communicating business decisions, such as decisions to reject
leave applications, promotions or pay rises, and
giving notice of termination of employment.
WHAT LEGAL RISKS CAN ARISE FROM AVOIDING DIFFICULT
Avoiding, or constantly postponing, difficult conversations with
employees in these types of situations can entrench undesirable
behaviours or work habits, increase absenteeism and staff turnover,
and lower employee morale, which all hinder an organisation's
productivity. Raising workplace issues, and discussing them early
and appropriately with employees, can assist with preventing or
defending the following types of legal claims.
Unfair dismissal claims
Warning an employee early on about unsatisfactory performance
or behaviour, and giving them a genuine opportunity to respond, is
a key element of procedural fairness. Without following this key
step a dismissal may be found to be unfair by the Fair Work
It can be frustrating when defending an unfair dismissal claim
to be unable to fully rely on an employee's previous
unsatisfactory performance or behaviour merely because a manager or
supervisor failed to have a difficult conversation (or two) with
the employee about those issues at the time.
Also, in the case of a genuine redundancy, an employer must be
able to show that it has met any obligation it had under a modern
award or enterprise agreement to consult with the employee.
Adverse action (or general protections) claims
Raising underperformance or misconduct with an employee early
on, and/or clearly expressing to an employee the reasons behind a
business decision which may adversely affect them, can help the
employee understand the reasons for that decision.
This will hopefully make the employee less likely to suspect
and argue that a decision was made for a "prohibited
reason" (such as on a discriminatory ground, or because the
employee sought to exercise a workplace right). In turn, this
process, combined with keeping contemporary records of discussions,
will help the employer prove what a decision-maker's real
Again, raising underperformance or misconduct issues at an
early stage with employees may reduce the chances of workplace
bullying, or accusations of bullying, from occurring.
Having (and documenting) those difficult conversations may also
constitute "reasonable management action", which may
assist with defending any application brought from 1 January 2014
under the Fair Work Commission's new anti-bullying powers (see
Although it is important to avoid the potential adverse results
of legal claims, it is also critical in minimising the distraction,
potential reputational harm, and costs associated with defending
WHAT SHOULD EMPLOYERS DO?
To ensure that difficult conversations are not avoided,
employers should take steps to make sure that managers and
are educated about the importance of open, honest and timely
communication with their staff, and are encouraged to have
difficult conversations with their staff when necessary and as soon
have the necessary skills to carry out difficult conversations
in an appropriate manner, and
are informed about the importance of keeping detailed written
records on each difficult conversation that they have with an
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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