Handling Difficult Employees

A recent adverse action case* is a salient reminder that all workplace complaints need to be taken seriously and handled appropriately irrespective of the apparent formality of the complaint, who makes it or their motive(s) for making it.

The Facts

Just prior to the expiration of the employee’s three month probation period there was a confrontation between the employee and his supervisor which prompted the employee to make a complaint to HR. The following day in a probation appraisal meeting the supervisor raised performance concerns and offered to extend the probation period. The supervisor subsequently learned of the employee’s complaint, withdrew the offer to extend probation and recommended the employee’s dismissal ostensibly on the grounds that he had failed to meet the required performance standards.

The employee brought an adverse action claim alleging that he was terminated because he had complained about his supervisor and the workplace culture just prior to his termination.

The Decision

The matter was heard in the Federal Circuit Court. Judge Driver appeared to agree with the less than flattering character assessment of the employee but noted that his complaint should not have been so lightly dismissed.  There were four different people involved in the termination. It was held that the supervisor’s role in it, and his recommendation of dismissal, was influenced by his annoyance at the employee’s feedback or complaint. In an analysis of the decision-making process it was also noted that the ‘effective’ decision maker was aware that if the complaint was formally investigated that the employee’s probation period would expire making him eligible, if dismissed later, to lodge an unfair dismissal claim.

A separate hearing will be convened to determine the appropriate remedies although compensation, at least in any significant amount, appears unlikely given the indication by the judge that the relief he would likely grant at this stage is a declaration.

Lessons for Employers

Probation periods offer a good opportunity for employers and employees to ensure the ‘right fit’. This case highlights, however, the potential issues that can still arise when employees are dismissed during their probation period.  

It also raises the often vexed interplay between adverse action and unfair dismissal where employees are not yet eligible to make an unfair dismissal claim because they do not meet the minimum employment period. The crux of the issue, because it was an adverse action case, was not whether the dismissal was unfair but rather whether the decision was taken because the employee had made a complaint.

It is a good reminder that all workplace complaints need to be taken seriously and handled appropriately. When ‘difficult’ employees make complaints it is arguably even more important to ensure that a clear and fair process is transparently rolled out to resolve the complaint and potentially prevent an even bigger problem.


Image courtesy of Ambro at FreeDigitalPhotos.net

Sarah Waterhouse



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