My employee is too old and risky. How do I move him on?

This article first appeared February 10, 2010.

Dear Aunty,

We are a Victorian printing firm which employs 22 people.

Our 40 year staffer (who was employed by the previous owner) is the worry, as he is 61 years old and unable to do the physical work he was employed to do.

We have changed his role several times over recent years to try to keep him employed, but he is progressively failing at all tasks, and we don’t have a job he can do.

He has been injured twice in the last year as a result of carelessness.

What’s more, we now see a problem emerging that his poor performance becoming a safety risk to other staff.

If we sack him we fear an unfair dismissal claim.

If we retire him we will probably face an age discrimination case.

What do we do to see him out?

By the way, we think our problem will increasingly be experienced by employers, as Government policy forces people to work for longer.

Heeeelp!

Dear Heeelp,

Carelessness is not necessarily age related: just ask my teenage sons.

However I get your point. Many baby boomers are going to be carried out of the workforce in total denial that their faculties are failing, so this going to be a problem that affects many employers.

And yes: we are all well acquainted with the nice chap with the moustache who has no concept, despite repeat reviews and warnings, that his good enough is not good enough. Worse, they excuse accidents and mistakes with: “everyone has them; it’s bad luck.”

Here is what you must do. SmartCompany legal adviser Peter Vitalie says you need to have an honest dialogue with the employee. Have you been doing that? It seems that you’ve managed to move him to different roles because of this problem – or have you not been exactly up front about your reasons for doing so?

First you need an objective, preferably independent, assessment of his ability to perform the tasks at hand. You may also need a doctor’s examination to test eyesight, hearing, lifting capacity and other relevant skills.

Although your problem arises out of genuine health and safety concerns you need to show either that the employee is not meeting OHS standards, and/or is no longer able to perform the inherent requirements of the position.

You might also consider what help you can offer to find him another job if he needs to keep working. At all times during this process you need to keep the discussion going and bring the employee with you, not make him feel victimised.

This is not an easy process at all. You have to show this long serving employee that he is no longer “fit for purpose” and that cuts deep into a person’s dignity.

Maybe add a little cash incentive – speak with your tax adviser about how to best structure this and about possible insurance claims against any super related policy eg. total and permanent disability.

If you are honest and open and offer some cash, and this won’t convince him to accept the rational outcome, and he wants to make a claim anyway, well you can’t stop him. But at least by going through the process, you’ll be in a better position to defend it.

Good luck!
Your Aunty B

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