This week the HR news and a number of business publications have been discussing the worker dismissed while running an eBay store selling items of an erotic nature. This article from SmartCompany sums both the case and some recommendations up quite nicely.
From a HR rules view:
- any decision to dismiss must be made on grounds that are solid and reasonable
- rules about and definition of “abandonment of employment” are very clear
- secondary employment is an area of concern yet not always reason enough to take action
In this particular case, the Commissioner noted that the “business” had made a profit of $500 in the previous year, thus questioning whether the business itself or the nature of the business were at the heart of the employer’s decision.
This case, like most if not all, is complex. What seems to have happened in the Broadspring Consulting view is that issues arose between the employer and employee, extended time off work was involved and frustration levels grew. Every client we have worked with will comment that “stay calm and unemotional” is almost the first advice that comes from us when dealing with employee issues and tensions. In terms of the HR Rules – typically the Fair Work Act, the relevant Modern Award and internal policies: fair and reasonable action is expected. If an employer is unable to demonstrate (through evidence, documentation and/or reliable statements) that a decision to dismiss is fair and reasonable, then it is likely to be overturned
Values are important in many organisations and this case suggests that senior staff and those making the decision perceived a clash between the online store and the company values. This was not demonstrated clearly and as a result (see the above paragraph) not a valid or reliable reason to terminate employment.
Be careful of what you read and where it originates from. An article shared in HR circles coming from the US flags that the rules here in Australia are quite different. The subject 5 Ways to tell if a candidate is lying seems appealing and includes some valid tips:
- vague descriptions – our tip would also be that language used in the application/resume is different to how the person describes it in the interview
- unusual or missing data or information. Our Privacy legislation may prevent some candidates sharing full details of previous experience, and remember that many people have career gaps as a result of carer or family or personal illness: all of which are protected attributes under Anti Discrimination legislation. Ask questions to get clarity but do not take action on assumptions or bias.
- you get negative cues in the interview. Nervous people send off clear signs that they are nervous. The question here is whether they are nervous because they are lying or because it is a job interview. Please also be aware that some body language is affected by cultural and family background.
- reference checks provide conflicting information. The article suggests checking in on your own network – be careful. Information obtained by third party means that affects your decision can be considered defamation. I do agree with the tip of noting any conflicting information and would also suggest that you confirm the working and reporting relationship between the candidate and the referee.
- online information does not match. Can hardly believe that this was included. The article even debunks this as a suggestion.
We would also suggest that you seek out evidence of workplace behaviour that is consistent with your company culture and values.
Consistency with rules is important. This app;lies very much to internal procedure and “house rules”. It is very difficult to explain why one person or group should follow a particular procedure if another person or group has been allowed to act in contrast to that procedure.
There are always exceptions and when these are made deliberately then an exception to the policy is fine, and in fact can actually strengthen the business. It is one way that many organisations ensure flexible work practices for their staff.
The example top of mind this week comes from client experience. Let’s consider three examples
- Many organisations have a peak period of the year where leave applications are discouraged
- Other organisations have a specific annual shutdown where staff are compelled to take annual leave
- Organisations who provide a “tool of trade” vehicle restrict out of hours use
It is really important that procedures and house rules such as those above are applied consistently. If not consistently applied, it opens up avenues for tension and dispute.