In the penultimate instalment of the six-part industrial relations series, Noel Dyson investigates the value of counselling.
WHAT value counselling in the industrial relations sphere?
In legal terms, counselling is best used when applied to unfair dismissal and is a crucial part of what many describe as a time-consuming process.
It can prove challenging for many hard-pressed supervisors.
To dismiss an employee fairly, an employer has to counsel the worker who is not performing adequately or not behaving properly, and give them an opportunity to improve.
This includes giving the employee a chance to put their side of the story about any outside factors that might be affecting them.
These external factors need to be taken into account when assessing the employee’s performance.
There has been considerable legal argument over how much counselling is sufficient and whether employees have been given suitable opportunities to improve.
However, outside of the industrial relations law equation, counselling can also prove a useful performance management tool.
And because a third party other than the supervisor and the employee becomes involved, it also can identify systemic or cultural problems in the workplace that could be unseen by management.
Industrial lawyer Derek Schapper, who represents several unions, said his experience with counselling in the industrial sense was only when it didn’t work.
“I deal with a lot of unfair dismissal cases, and these would be the cases where the counselling did not work,” he said. “If you’ve made reasonable efforts to counsel an employee and given them chances to improve and they haven’t, then you can fire them.
“But it’s always a matter of argument in each case over whether enough counselling has been done.”
Mr Schapper said that most cases of unfair dismissal were usually settled out of court.
However, in some instances the industrial relations law emphasis on counselling can make it difficult to remove problem employees.
Some employees know how the process operates and how to use it to their advantage.
Chamber of Commerce and Industry director employee relations Bruce Williams said that in some cases employees would improve their performance enough to just reach the standards set for them.
“The problem with these people is they draw the process out by improving at the death knock. That can make it very hard,” he said.
Of course, rather than enter into the time-consuming counselling and dismissal process, companies have the opportunity to choose from two options.
The first of these is to ignore the problem entirely, but that will not help rectify the situation. The second, if the company is big enough, involves transferring the worker to another part of the business.
People Innovations executive director Tim Ford said both these options were fraught with danger.
“The problem doesn’t go away. Indeed, when you transfer someone who is not performing to another area, then the problem just seems to reappear in that area – usually after about six months,” he said.
Mr Ford said there were some benefits to be had from going through the unfair dismissal process and counselling employees.
“Because a third party has to get involved other than the supervisor and the employee, any practises that were unseemly can be seen,” he said.
p Next week: Value adding to employees.
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