4 rules for dealing with problem workers in medical practices: HR expert

Performance management plans are often not the best approach for dealing with problematic staff in medical practices and employers can be better off showing a bit of generosity, doctors are being told.

While the advice may come as a surprise to some, a leading HR expert says the idea is to ensure the worker voluntarily agrees to end their employment – avoiding the potential for unfair dismissal claims.

AMA Victoria senior workplace relations advisor John Ryan says human resources professionals have traditionally encouraged employers to develop a plan and performance manage the problem worker, usually ending in their eventual termination.

This is all about reducing the risk of unfair dismissal claims, as well as giving the practice some ability to defend the termination in court if such a claim is ever brought.

However, that risk can be eliminated entirely if the employment relationship ends with both parties satisfied, he says.

“All relationships have a beginning, a middle, and an end,” he says.

“The ending of relationships can be messy or they can be amicable. What is sought is an ending that is amicable.”

He says the AMA branch has been adapting the new philosophy to the healthcare industry over the past four years into a process called: “Be Firm. Be Respectful. Be Generous”.

The four steps

Outlining the process in the AMAV magazine this week, Mr Ryan says step one involves coming to a firm decision and whether to continue employing the problem worker and then sticking to it.

“The ‘be firm’ part of this approach is to hold to your decision that the relationship is to end,” he says (link here).

“Don’t be like the parents whose relationship has completely and irrevocably broken down but who stay together ‘for the children’. They often inflict more damage on each other and on their children than if they had separated as amicably as possible and as early as necessary.”

The second rule is to always treat the employee with respect and dignity.

Mr Ryan says the biggest challenge here will be in how the practice communicates its decision to end the employment relationship with the worker, a conversation that should be open, honest and direct.

He advises the conversation also needs to stay professional and avoid any trading of accusations or blaming of the person.

Treat them as a real person, the HR expert adds.

“Remember always that the person being dismissed must be able to explain their loss of employment to their family and friends and in some cultural groups they will have to explain themselves to their community leaders.”

Step three can be hardest for employers to accept, as it will often involve them putting their hands in their pockets and paying the problem worker to quit.

Nevertheless, it is not the time to be stingy or parsimonious to get the employee out the door and avoid a potential lawsuit.

“For example, if an employee is entitled to eight weeks’ pay on dismissal, offering the person 10 weeks may not be generous,” he says, adding that something between 16-20 weeks is more likely to be acceptable.

An offer of a positive written reference, with a guarantee of a positive verbal reference to any prospective employers can also have significant value to someone who is about to be on the hunt for a new job, Mr Ryan says.

The point of all three rules is to reach step four, getting the employee to agree to end the employment relationship and draw up terms of settlement.

This means the person should know that it is going to happen and that it is proposed to be carried out on the best possible manner, while it should also be clear that what is on offer is more than could be obtained if the offer is rejected and the person has to run a case for compensation.

“For example, neither the Fair Work Commission nor a court can require an employer to give a positive reference, nor can they prevent an employer from saying things that might damage the employee’s reputation,” Mr Ryan says.

“The respectful and generous treatment being given to the employee whose employment is to end may be a very cost-effective outcome.”

Terms of settlement typically involve provisions surrendering most rights to any further legal action, a mutual undertaking not to say or do anything which harms the reputation of the other side, and confidentiality clauses, he adds.

Mr Ryan says while this process is simple enough that any employer doctor or their practice manager could undertake it, the AMAV also offers an external service for a fee. This can be contacted via [email protected] 

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