Home' HR Monthly : September 2014 Contents PERSPECTIVE
AN EMPLOYER TAKING CONSTRUCTIVE
steps towards dismissing an underperforming
employee, in a clandestine and ultimately destructive
way, constitutes constructive dismissal. It’s a
horrible experience for any employee, and even
worse when the HR manager has been part of the
career assassination unit.
An early step along the dangerous path of
constructive dismissal is for the CEO or a
management team member to ask HR to do a search
for alternative talent to replace the underperformer.
HR then gets its internal recruitment arm, or more
likely a recruitment firm, to do the dirty work. A
blind ad on Seek could be involved.
The plot thickens and the risks rise when, at the
long-list stage in the recruitment process, potential
candidates understand what the job is and who the
employer is. Then, either through the recruiter’s
declaration or the candidate’s detective work, there
is a realisation that the job is currently occupied.
Finally, a recruit is secured and signed up. The
manager – or more likely HR – is charged with
the task of approaching the incu mbent victim and
ending their employment on the Friday afternoon,
with escorts to see the person off the premises
with the usual cardboard box of personal items.
When this happens, and the employee discovers
through their network or social media that a long-
standing plan had been actioned to remove them,
legal action can be commenced against the employer
for constructive dismissal.
So what is ethically and legally legitimate for H R
in these circumstances, and what is not?
Being a participant in the above scenario is not
okay – professionally or morally. If discovered, being
a co-conspirator will cause loss of trust with almost
all of your co-workers. However, it is okay within
your succession-planning activities to cast the net
outside your organisation and identify potential
ex ternal candidates as successors for critical
positions. A nd it’s legitimate to use search fi rms
and social media data to build profi les of all such
It’s beginning approaches to external candidates
when a job is still occupied by an employee that
When the boss comes to you and says they want
to kick off a blind recruitment process to replace
John or Joan, you need to have the courage to
explain that it will expose the company to infringing
constructive dismissal employment laws. You should
add that it would be better for the company to
approach the employee and advise them that their
performance isn’t meeting expectations and the
company would like to make a change over
time and, with their knowledge and
company support, transition them to
a role elsewhere.
The tactics required to change
direction and avoid a constructive
dismissal claim aren’t that complex,
but they do require HR to have
the courage to push back against
ruthless, risk-taking bosses
thinking only of the short-term
Turn to page 47 for a legal
perspective on const ructive
Sacking someone who didn’t see it coming, who may realise that the process
to replace them has been going on behind their back, is asking for trouble.
BY PETER WILSON AM, AHRI CHAIRMAN
To read past Perspective
columns by Peter Wilson,
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