Can I sack a poor performer with a disability?

Dear Aunty

We have a 35 year-old lady on staff who just doesn’t make the grade, but she also has a disability. She has been with us for four months.

Over the past six weeks we have had to discipline her for being disrespectful to her co-worker twice. The first time she was given a verbal warning and the second time a written warning. She has recently received another written warning for sending another co-worker a threatening email. She believes because she is full-time and most of her co-workers are part-time she does not have to listen to directions given by a part-timer.

Because her memory is poor she easily forgets training she has received and then lies, saying she has never been trained. Customers are complaining of the service they are receiving from her and other staff members are spending 30% of their time fixing mistakes created by her.

She has told other staff members she will take legal action if we sack her, sighting unfair dismissal.

Can we dismiss her because of her work quality and poor respect to her co-workers? I don’t believe her disability should play a part as we have another staff member who has a hearing problem. We try to give women an opportunity to re-enter the workforce and the majority of our staff are part-time mothers.

Thanks,

KL,
Brisbane

Dear KL,

Gee. That’s tricky and I hope this experience does not put you off hiring other people with disabilities, as we have found they can often be very valuable and loyal members of staff.

Now this is tough, but we ran this past our resident lawyer, Uncle Pete (Peter Vitale) and here is what he says you need to consider.

Be conscious of exposure to unlawful termination and anti discrimination claims (by the way, there will be an additional cause of action under the Fair Work Bill).

Depending on the nature of the role and nature of disability, this may arguably be a case of indirect discrimination, because her disability means that she is not able to meet the employer’s requirements as well as someone without the disability

The employer must show first that the disability is not the reason or partially the reason for the termination; second, that if the disability has adversely affected her capacity to properly perform her duties (and is therefore directly or indirectly part of the reason for termination) the employer must show that to offer whatever resources or assistance as would enable her to perform the role properly would impose an unjustifiable hardship on the employer. Cases where employers can show unjustifiable hardship are extremely rare.

The best course is to show that the employer has offered as much assistance with behavioural issues (which may be linked to the disability) as possible and that there is a solid foundation for a conclusion that she is not able to perform the inherent requirements of the position.

Oh, and forget trying to justify your position by reference to other employees with a disability (whether they are women or not!). While obviously you are community minded, the legal system isn’t.

Good luck!

Your Aunty B

Comments

Rachel Butler at Australian Employers’ Network on Disability writes: The Australian Employers’ Network on Disability is a not for profit, member-based organisation. We are the Australian experts on disability as it relates to business. I read your response with interest, and thought we might be able to add the following information.

It sounds like there are a few really important conversations needed in this particular situation. Apart from recommend you buy our Managers Guide: Disability in the Workplace here’s what I would suggest. Please note, these are suggestions and not legal advice.

Preparation

Firstly, look at the position description that your staff member was recruited for and review whether there is a clear articulation of the ‘inherent requirements’ of the job. Clarify the work performance required by reviewing the quality and productivity requirements for the role as well as your ‘code of conduct’. If there was a three month review, look at your data from this performance review and identify whether performance has changed.

Think about anyone else within the organisation who breaks your code of conduct or doesn’t meet your work performance standards. If you can think of a few other people who don’t meet these standards then your task becomes more difficult. Arrange a meeting with your staff member with disability.

Meeting

Give a few days notice of the meeting and tell your employee that you want to discuss work performance. Provide an opportunity for your employee to have someone else attend if they choose. This could be a disability employment specialist or an advocate.

During the meeting be clear about which aspects of the role are being adequately performed and which aspects require improvement – this includes both task related aspects such as customer service as well as interpersonal skills. Ask your employee if she requires any workplace adjustments to make it easier for her to achieve the requirements of the role. If she is unsure about what adjustments would help, you can suggest a workplace assessment. The Federal Government may provide funding and assistance with implementing adjustments – visit www.jobaccess.gov.au.

Follow up

To protect your organisation against either direct or indirect discrimination it is important that you do not undertake any disciplinary action prior to providing the opportunity for reasonable adjustments to be implemented. Document your processes. If you need additional assistance call the Australian Employers Network on Disability on 1300 363 645.