Managing Employees

Poorly handled performance management and dismissal processes can lead to an employer being exposed to unfair dismissal claims and bullying complaints.

We know that a poor performing employee can significantly impact the productivity of your business, so it’s important to act quickly to resolve issues – get in touch for expert legal advice and support from our employment lawyers.

Performance management processes

As a general guide, reasonable performance management processes follow these steps:

1. Identify the issue
2. Raise the issue informally – this may involve counselling, re-training, or a verbal warning
3. Monitor ongoing performance
4. Deal with the issue formally (if there is no improvement) – this may involve performance improvement plans or written warnings
5. Dismiss the employee (if appropriate)

(note that these steps are applicable to performance issues, rather than conduct issues, which may require a different approach).

Depending on the seriousness of your employee’s performance issue, you may need to raise the issue with the employee (informally or formally) more than once, before proceeding to dismissal.

In very serious circumstances, it may be appropriate for you to proceed straight to a dismissal process, without providing any verbal or written warnings.

See our blog post for helpful tips on how to manage underperformance.

Dismissal process

Regardless of the seriousness of the situation, you should always take the following steps before proceeding to dismiss an employee:

1. Notify the employee of the reason for dismissal, and give them a chance to respond
2. Give your employee the option of having a support person involved in all discussions relating to the dismissal
3. Provide your employee with the opportunity to state their reasons why their employment should not be terminated.

Unfair Dismissal Applications

Under unfair dismissal laws, your employees have the right to apply to the Fair Work Commission to seek reinstatement or compensation if they feel they have been unfairly terminated.

When considering whether the dismissal was unfair, the Fair Work Commission will consider the following factors:

1. Whether there was a valid reason for dismissal
2. Whether the employee was notified of the reason for dismissal
3. Whether the employee was given an opportunity to respond to the reason for dismissal
4. Whether the employer unreasonably refused to allow the employee to have a support person to assist them in any discussions relating to the dismissal
5. If the dismissal related to unsatisfactory performance, whether the employee had been warned about their performance before the dismissal
6. The size of the employer’s enterprise
7. Whether the employer had any dedicated human resource management specialists or expertise
8. Any other relevant matters, such as the age of the employer and the length of service

Dismissals can be very costly to employers if not handled properly. As an employer, you may be ordered by the Commission to reinstate an employee who has been unfairly dismissed. Alternatively, you may be required to pay compensation to the employee.

Get legal advice from our lawyers as soon as possible to avoid potentially expensive outcomes – call us today.

Performance Management Case Example

Employee unfairly dismissed for not being able to perform her job

This case involved a business development (BD) manager who was dismissed by Employsure on the basis that she could not perform the inherent requirements of her position.

The Fair Work Commission determined that there was not sufficient medical evidence to support Employsure’s assessment that the BD manager was not able to perform her duties. In addition, the Fair Work Commission found that Employsure did not notify her of the reason for her dismissal, did not provide her with sufficient opportunity to respond to the reason for her dismissal, and unreasonably refused to allow her to have a support person to assist her in discussions.

The Commission concluded that the dismissal was harsh, unjust and unreasonable, and that therefore the employee was unfairly dismissed. Employsure was ultimately ordered to pay around $20,000 in compensation to the BD manager.

Sydney v Employsure [2015] FWC 8432

How can we help?

If you have a poorly performing employee, or you are considering dismissing an employee, contact us for a free 30 minute consultation with an experienced lawyer to help protect you from time-consuming and potentially costly unfair dismissal claims.