When it comes to disciplining problematic employees, think outside the box.

Did you hear about the Chinese company that made its underperforming employees eat live worms, squid and ants as punishment for not meeting their sales targets? As always, thanks to the Daily Mail for enriching our news cycle.

We certainly don’t recommend forcing your employees to eat live invertebrates or insects to keep them in line, mainly because it would be VERY unlawful. However, we do suggest employers expand the way they think about disciplinary options for employee misconduct or underperformance.

Generally, punishment for misbehaving or underperforming employees ranges from a formal or informal warning, to termination of employment – with very little in between. However, as the Fair Work Commission pointed out in a recent case, certain punishments don’t always fit the crime.

Dismissal too harsh and written warning not harsh enough?

In that particular case, an employee was dismissed for making a racist comment that offended a number of people. The Commission found that the dismissal was too harsh, but also that a written warning would not have been tough enough – leaving the employer stuck between a rock and a hard place. Interestingly, the Commissioner remarked that the “limited range of disciplinary options” led to employers applying punishments that are “either inappropriately lenient or inappropriately harsh”.

Seven viable & ‘creative’ alternative punishment tools for employers

This got us thinking as we pondered the story about eating worms. Besides the ingestion of creepy crawlies, what viable alternatives are available to employers? Some creative examples we came up with are:

1.     unpaid suspensions
2.     fines (when you navigate the legal nuances – this is why we have jobs!)
3.     alternative role/demotion
4.     withholding of pay increase or bonus
5.     increased supervision
6.     regular internet and email spot-checking
7.     focussed training

Employee agreement essential in alternative punishment options  

Importantly, if you want to be able to use some of these tools (1 to 4 to be precise), you will need to ensure you have the right to do so under the relevant employment agreement or enterprise agreement.   Without the employee expressly consenting to the action being taken, there is a risk you could end up in court, or with the Fair Work Ombudsman dropping by to say “Hello” (amongst other things). If an employee hasn’t consented to this approach, they may claim, for example, adverse action or repudiation of their contract.

If you don’t currently have these options available under the relevant employment agreement, we suggest reviewing and amending the agreement by inserting provisions which allow for things such as demotion, unpaid suspension, or one of the other disciplinary tools your organisation might want to utilise. Having an up to date and clear policy about how and when these tools may be used is also very important.

Examples of applying alternative punishment options

With these tools in your arsenal, you can then consider the best way to address an employee’s conduct or performance issues. Need to reprimand an employee who has been making bullying and harassing remarks to others? Why not enforce extra supervision and email spot-checking on their work computer and mobile devices. Got an employee who was caught falsifying time sheets? Their bonus could be withheld for that year or years to come. How about an employee who is consistently failing to meet their targets? A demotion to a lower position with reduced targets and corresponding lower pay might fit the bill.

So next time one of your employees is caught doing the wrong thing or is not doing their job, pause before sending them the usual letter about “disciplinary action up to and including dismissal“. You might just be able to find a response more fitting to the crime (but leave the worms out of it!).

Aaron Goonrey is a Partner and Emma Lutwyche is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice. Aaron can be contacted at agoonrey@landers.com.au