Difficult conversations in the workplace

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

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 it has met any obligations it 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.