While divorce is a personal issue that in many cases does not affect the workplace, HR may need to use performance management strategies in the event that conflict arises between the two employees, says employment law
yer Lucienne Gleeson.
“If you have a divorced couple in the workplace and you are concerned about keeping the peace your first question should be: is there actually a need to do anything from a workplace perspective?” says Gleeson, an Associate with PCC Lawyers.
“If the divorced couple care continuing to work together well and there is no negative impact on the team then no action should be taken,” she says.
Alternatively, if the former couple are creating issues in the workplace, such as severe conflict, there will be a strong need for HR managers to consider carefully managing this situation.
Terminating one or both of the employees should be a last resort for HR and considered only if the situation cannot be resolved or if it continues to be significantly detrimental for the business.
Gleeson advices employers to consider other performance management options as first instance, including warning the employees about any poor or inappropriate behaviour towards each other, or that affects others in the workplace and counselling them on their behaviours.
“An informal mediation held by the employee’s manager, discussing the negative impact on the workplace, might also be useful,” she says.
However if the issues do not improve and dismissal is required, HR will still need to follow correct procedure to ensure that an unfair dismissal claim cannot be successfully pursued.
“An employee earning under $137, 500 can lodge an unfair dismissal claim,” Gleeson says.
“Further, certain procedural steps need to be followed to rule out an adverse legal finding,”
She says if the employees fall within the unfair dismissal jurisdiction then they must be taken through a procedurally fair performance management process before being terminated.
“This includes issuing a warning about the behaviour, giving the employees time to improve and reviewing their progress,” Gleeson says.
“A valid reason for termination needs to be presented to the employees and they must be given an opportunity to respond (with a support person present if this is done face to face).”
Only once this process is followed can the employer determine and act on whether either one or both of the employees needs to be terminated.
“While just one employee could be dismissed, if both are behaving inappropriately and the above steps have been followed without seeing improvement from both, then proceeding to terminate the pair may be advisable.”
Going through a divorce is major life event and when such a relationship breakdown occurs between two employees in a workplace, HR needs to carefully manage the situation.