Common HR Mistakes Employers Should Avoid
Sometimes it's not the workplace issue itself that causes the biggest problem. It's how the employer responds to it.
A warning issued too quickly. A workplace complaint brushed aside. A performance conversation nobody documented.
These might seem like small oversights at the time, but they can create much bigger headaches down the track.
Here are four common mistakes we see employers make, and what to do instead.
1. Before you hand out that warning…
An employee keeps making mistakes, and their manager has had enough. Surely it's time to start issuing warnings?
Here's something that surprises many employers.
There's no general legal requirement to give an employee three warnings before dismissal. It is not written in the legislation, however it has long been a benchmark of best practice.
But that doesn't mean you can skip straight to termination. You need to consider what a fair and reasonable process requires in the circumstances, including:
How long they have been employed and what legal protections apply.
Whether the concerns relate to performance or misconduct.
Whether the concerns have been clearly explained and the employee given an opportunity to respond before a decision is made.
If the employee has been given the opportunity to improve after the initial concerns were raised
Whether a request for a support person has been reasonably accommodated.
For poor performance, whether appropriate support and a reasonable opportunity to improve have been provided.
Whether the employee has been warned that failing to improve could result in termination.
Any requirements under an applicable contract, policy, award or enterprise agreement.
Here's an example.
A receptionist has repeatedly entered incorrect customer details. Their manager has mentioned the mistakes in passing, but never explained the required standard, explored whether additional training was needed or warned that failing to improve could put their employment at risk.
Three months later, the employee is dismissed for poor performance.
Those passing comments may not be enough to demonstrate that the employee understood their job was at risk or had a fair opportunity to improve.
What should the employer have done?
Clearly identify the mistakes, explain the expected standard and give the employee an opportunity to respond before deciding whether a warning is appropriate. Consider appropriate training or support, provide a reasonable opportunity to improve and explain the consequences if they don't.
If performance doesn't improve and dismissal is being considered, give the employee an opportunity to respond before making the final decision.
The number of warnings isn't the deciding factor. The circumstances and fairness of the process matter.
Oh, and serious misconduct warranting “instant dismissal”?
Summary dismissal means dismissal without notice - not without a process. The Fair Work Act sets out specific conduct that is misconduct (theft, assault, fraud, sexual harassment for example). Be cautious about over inflating conduct to misconduct in your disciplinary documentation!. The employer should establish what happened, put the allegations to the employee and genuinely consider their response before making any decisions.
Don't get caught out by having a legitimate reason to terminate but not following the process correctly.
2. When "just sort it out" backfires
Two employees aren't getting along. One approaches their manager and complains that their colleague keeps undermining them in front of customers.
The manager suggests they sit down together, clear the air and move on.
Seems reasonable, right?
But here's where employers need to be careful.
Not every workplace conflict is simply a personality clash. Repeated unreasonable behaviour that creates a risk to health and safety may constitute workplace bullying.
And while a disagreement between colleagues doesn't automatically amount to bullying, dismissing a genuine concern as "office drama" could mean overlooking a psychosocial hazard.
So what should the manager do?
Before arranging a meeting between the employees, establish what's actually being alleged and whether any immediate steps are needed to manage health and safety risks.
Is it an isolated disagreement? An informal discussion or facilitated conversation may be appropriate.
Is it repeated unreasonable behaviour? Make appropriate enquiries and assess whether bullying or other psychosocial risks are present.
Ongoing conflict affecting employees' wellbeing? Consider what steps are needed to manage the risks, even if the behaviour doesn't meet the legal definition of bullying.
If allegations are made against an employee, give them a fair opportunity to respond before making findings.
Mediation may be appropriate where both employees agree to participate, but it shouldn't replace necessary enquiries into serious allegations or steps to manage safety risks. Jumping into mediation too early without first looking further into grievances or allegations on behaviour can undermine your mediation process.
Importantly, employers don't need to wait for a formal written complaint before assessing potential workplace health and safety risks.
The takeaway
Getting employees around a table isn't always the first step. Sometimes the first step is understanding what's really happening.
3. "But we had a conversation about it!"
An employee is dismissed after months of poor performance.
Their manager insists they've raised the issue repeatedly. The employee says they were never told their performance was putting their job at risk.
The problem? There's no record of what was actually discussed.
And a note saying "spoke to Sarah about performance" isn't much better.
If the matter ends up before the Fair Work Commission, the employer may need to demonstrate that the employee understood the concerns, was given an opportunity to respond and improve before a decision was made and, for poor performance, was warned that their employment was at risk and given a reasonable opportunity to improve.
A useful file note should capture more than just the date of the conversation.
The facts: What specific incidents or performance concerns were discussed, when and with whom?
The employee's response: What explanation did they provide?
The expectations: What needs to change, and by when?
The support: What assistance or training was offered?
The outcome: Was a warning issued after considering the employee's response, and what consequences were explained?
The next steps: When will progress be reviewed?
Make the note promptly and keep it factual. Confirm any warning, improvement expectations and potential consequences in writing to the employee - a private file note doesn't communicate those things to your employee.
One important distinction. A file note isn't automatically a formal warning. And a detailed record doesn't make an otherwise unfair process fair.
Good documentation helps establish what happened, what was communicated and whether the employee had a reasonable opportunity to address the concerns.
4. "But they didn't make a formal complaint!
An employee tells their manager about something happening at work that is bothering them.
Then comes the familiar line:
“I don’t want to take it any further. I just want it noted.”
So you make a note and leave it there.
But here's where employers need to be careful.
A disclosure has been made. The absence of a formal complaint doesn't justify ignoring information about inappropriate behaviour or a potential workplace health and safety risk.
That doesn't mean every disclosure needs a full investigation. But it does mean you need to understand what's been raised, assess the risks and consider an appropriate response.
Start with a conversation.
“What are you expecting me to do with this information?”
And clarify what “just wanting it noted” means to the employee. Are they worried about making things worse? Do they want the behaviour to stop but feel uncomfortable about a formal process? Are they looking for guidance on their options?
Explain that you will consider their wishes, but you can't promise to take no action or keep the information entirely confidential if the circumstances require a response.
There may be less intrusive ways to address the concern and prevent it happening again:
Clarifying expectations with the relevant employees.
Providing targeted training or guidance.
Reinforcing appropriate workplace behaviour with the team, without identifying the employee.
Offering an appropriate facilitated conversation.
Addressing work arrangements or other factors contributing to the issue.
The response needs to match the concern. A general reminder or training session won't necessarily be enough for serious allegations or an ongoing safety risk.
Record what was disclosed, the employee's wishes, the steps you will take and why. Then follow up to check whether the concern has been addressed.
Because if the behaviour happens again, you can almost guarantee the employee's first response will be:
“But I told you.”
And they’re right. They did.
“Just wanting it noted” is the start of a conversation about what happens next - not a reason to do nothing.
Small mistakes can create big problems
There's a common thread running through all four situations.
Employers often get into trouble not because they ignored a problem entirely, but because they acted too quickly, made assumptions or failed to follow through.
Taking the time to understand the issue, follow a fair process, document what happened and take appropriate action can make a significant difference.
Not sure you're handling a workplace issue the right way?
HR Dynamics can help you navigate difficult employee conversations, performance concerns and workplace complaints before they become bigger problems.
Get in touch with our team for practical HR advice and support.
