Unfair Performance Management
Many companies commence a performance management plan after already deciding to remove an employee. Employers see performance management or improvement plans as a way to establish a valid reason for dismissal, where the employee does not meet the requirements of the plan. The plan also can assist the company in meeting the requirements of procedural fairness under Section 387 of the Fair Work Act 2009 (Cth).
Section 387 states that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account:
- whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
- whether the person was notified of that reason;
- whether the person was allowed to respond to any reason related to the capacity or conduct of the person;
- any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
- if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal;
- the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
- the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- any other matters that the FWC considers relevant
Many employees might find the performance management plan to be unrealistic or uncalled for. For them, it will be a signal to start looking for another job while they still have a job.
If it is genuine the employee should be proactive in ensuring that they understand the plan and engage with it positively. The plan might be based on a misunderstanding of the employees’ role by a new manager so rapport needs to be established with that person. McDonald Murholme provides advice on how this can best be done and how the job can be retained.
In most cases, we find that the performance management plan is a termination plan. This is especially the case where an employee has exercised workplace rights, been with the company for many years, or has returned from maternity or personal leave.
It is foolish for an employee to let the employer implement a termination plan disguised by a dysfunctional performance improvement plan. To do so empowers the employer to later rely upon the plan as if it were legitimate, where it may not have been. It is especially difficult for an employee to challenge a completed plan at the time of termination. It is often seen that the employee accepted the plan but couldn’t meet the requirements so there is no evidence to challenge the basis of termination.
McDonald Murholme will assist employees by intervening early to prevent a performance management plan escalating into an unfair termination. While the work to be done is difficult, and employees are often nervous and uncertain of what to do, there is no substitute for sound legal advice from an experienced employment lawyer. It is too much to expect that a free government agency or legal service can assist an employee to navigate such a serious problem which can take months of constant, regular and strategic advice.’