Human Resources are forever trying to effectively, efficiently and ethically deal with an ever-increasingly diverse group of employees, of different ethnic backgrounds, values, religions and work methods. No matter what, there always seems to be at least one that does not quite ‘fit’ with the business practices and procedures, or ‘gel’ with the rest of the team, as well as management had initially hoped they would.
The ‘oldest excuse in the book’ in such situations, to move on that employee (but not, perhaps, tell them the ‘real reason’ for their dismissal) is the oft-quoted “poor cultural fit”. Managers and recruiters have been using this excuse with relative impunity as the best way to ‘gently’ communicate a dismissal to a staff member.
However, in the recent decision of McEvoy v Acorn Stairlifts Pty Ltd  NSWCATAD 273 (“McEvoy”), shows a manager who, during a clumsy attempt to performance manage an employee – citing ‘cultural fit’ – actually, in doing so, engaged in serious workplace misconduct (through the unacceptable conduct towards a staff member), and exposed his employer to significant risk as a result.
How ‘not’ to use ‘cultural fit’ as a reason for not continuing with an employee
In McEvoy, Mr McEvoy (62 years old) was employed for just 16 weeks as a telephone sales advisor at Acorn Stairlifts Pty Ltd (“Acord”). It was alleged that after the new manager (Ms Kelly) was appointed to manage the sales team, she held a meeting with Mr McEvoy and:
- Stated “I don’t care about the sales figures, and I haven’t even looked at your sales figures. It’s got nothing to do with your sales figures” and “you don’t fit the culture here, and I don’t believe that with your back and poor hearing you can continue working here” (emphasis added);
- Told him he was ‘too old’ for his role; and
- Emphasised that the problem was with Mr McEvoy’s hearing, not his performance.
Mr McEvoy made a complaint to the NSW Civil and Administrative Tribunal, alleging that the above conduct constituted ‘unlawful discrimination’ because of his age and disability. Acorn attempted to rely upon the classic ‘get out of jail free’ card of having terminated Mc McEvoy during his probationary period on the basis of “cultural fit”, not age per se.
The tribunal members sided with the ex-employee, ordering the employer ton pay the ex-employee $31,420, sending a clear message that if employers want to let people go they must go about it the right way and not hiding behind ‘poor culture fit’ as an excuse.
This case does not set a great precedent to be relied up on by employers as a new ‘general rule’. Unfortunately (for Acorn), Ms Kelly’s employment was terminated by the time the matter proceeded to a hearing and she refused to attend the hearing as a witness. Consequently, the Tribunal ordered Acorn to pay $31,420 in damages to Mc McEvoy.
How can you ensure your managers are aware of what they can and cannot say?
Managers can prevent such costly lessons (and considerable risk and media exposure) like the above case through:
- training and educating their managers and team leaders to prevent unlawful discrimination in the workplace;
- dismissal procedures are consistent and defensible, and tied to reasonable business grounds;
- ensuring that all reasonable steps are taken to prevent ‘rogue’ managers or reasons are given to an employee; and/or
- being specific with reasons for termination, and communicating such specific instances or incidents to the employee. For example, if Mr McEvoy was dismissed for reasons including his hearing (his inability to hear callers, their names, requiring customers to shout or repeat their orders etc.) then such specific instances demonstrate he could not perform the ‘inherent requirements’ of his telephone-based job, and can be lawfully dismissed as a result.
Are you are currently trying to deal with an employee who is a chronic underperformer and is not the suited candidate you had initially thought they were? Is their incompatibility with their role and responsibilities causing significant disrupt to the efficiency of your business?
The obligations that rest on the shoulders of employers in relation to hiring and firing are extremely onerous. Do not make an uninformed decision and suffer the severe consequences like the employer did in McEvoy! Safeguard your organisation against the possibility a disgruntled ex-employee or job applicant might bring a discrimination or general protections claim against you.
Give our Workplace Relations Consultant Mark Ritchie a call on 0458 644 469, who can provide you with tips for how to ensure you make fair, reasonable and legally defensible termination decisions.