Onerous laws create slow and painful end for workers

I have sat in many meetings over the years and watched the dance of the end between an employer and employee. They’re going through the motions and, in many cases, both parties know the dance will end with employment finishing.

Often this is for a valid reason and the employee isn’t performing despite multiple endeavours. Perhaps they are the wrong fit for the organisation. Sometimes it just isn’t working, despite everyone’s best efforts. Both parties know where it’s going to end, but because the law requires “fairness”, the dance is dragged out until the employer deems that they are safe in law to issue the final death knell.

I have seen some truly appalling employment practices over the years, with employers who behave as though they are kings, and their employees are fiefs over whom they rule. So I understand the need for a framework that, in theory at least, holds the employer accountable to a fair and reasonable process and ensures employees can’t just be fired on a whim.

But in protecting those that need to be protected from rogue employers, we have almost lost the ability to have a sensible discussion where cards are put on the table, and everyone knows where they stand.

The dance begins with the employer putting the employee on notice — sometimes overtly, often in much less clear language — often with no definitive time frame around the issue or the process for resolving it. If you ask those employees, they know where it’s heading. Many times, they’ll own their part of the relationship failing (although not always). But they sit through the process in case it ends up being different, in case they can achieve some sort of financial settlement at the end.

Of course, in many instances, they sit through the process because there is nowhere else to go, or because they really need the income.

So you have an employer who wants the employee gone, and the employee who knows that in all likelihood they will be gone. How is that a productive way to run an organisation? How does that build trust and engagement and all the things we know make for an organisation that thrives?

In other jurisdictions and countries where employment law is much less rigorous, blink and you can be fired with very few repercussions for the employer. But in Australia, the law as it stands drags out a process that is already difficult. It breaks whatever little trust remains, and it adds additional stress to the parties involved. The law has the right idea in terms protecting against rogue employers, but the reality of it has swung too far the other way.

Somehow the law needs to be able to protect the interests of both parties and allow for a conversation where both parties can be honest about what the future holds without fear of legal repercussions.

Here’s one way that might create this opportunity. What about if there was a way that an employer could safely approach an employee to make a without prejudice offer? A way in which that conversation would not be held against the employer in any future post-employment claim by the employee.

There would still need to be some criteria to protect against the rogue employers, but those protections could include ensuring that there was a qualified, independent support person for the employee available, that the offer was a reasonable one, and that there were reasonable time frames attached. And critically, that there are no threats made around what will happen if the offer is not taken.

There could be other solutions of course, and it would be useful if those who write the laws canvassed other potential solutions from those who use the laws daily to create a legal framework that works, not just one that reflects the politics and ideology of those who write them.

The Takeaway

The reaction to this piece was strong – in that many employers are actively seeking a different way. Where people can be treated with respect and humanity, rather than the dance with death. There’s no real answer to this under the current regime.

But two things that can be done are to create a positive, respectful workplace culture and ensuring that the recruitment, selection and on-boarding process of prospective employees is contemporary and robust.

More Reading..

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