Because of this, it can be tempting to avoid performance management altogether, out of fear that it could lead to a costly unfair dismissal allegation.
According to Julian Riekert, partner at Lander & Rogers, following proper procedures will ensure that performance management and termination are both possible and defensible.
Ninety per cent of dealing with performance issues successfully, Riekert said, is about being thoroughly prepared and having a plan of action which is both clear and simple.
“Employers need to have a clear and workable performance management policy and procedure, and which the employer must ensure it follows,” he said. “A performance management process can fail because employers do not follow their own process.”
However, he advised employers to be aware that following the correct processes does not automatically warrant protection from unfair dismissal claims.
“But we think it is time that employers started contesting these types of claims,” he continued. “When employers have done everything right and they have a strong case, they can certainly defend an unfair dismissal claim in the Fair Work Commission and win.”
Aaron Goonrey – also a partner at the firm – agreed with Riekert, adding that these situations will always place managers under pressure.
“During the conciliation phase there will always be pressure on employers to settle as a quick and easy option, even where they have properly followed their processes and procedures,” he said. “Word needs to get out that the performance management process is a legitimate course of action for employers and that it is possible to see it through to a successful conclusion.”
Goonrey and Riekert added that it is vital for employers to check the employment agreement before taking any course of action, and new employees should be closely monitored during their probationary period.
Riekert told HC
that there are a few mistakes which are particularly common:
- Not dealing with poor performance when it arises, and hoping it all improves with time.
- When employers don’t want to confront an employee because they personally find it challenging and anticipate that the employee will also, they tend to give bland mixed messages which don’t convey the full picture to the employee.
- Not acting to terminate employment when it has become clear that performance has gone way below the acceptable level and isn’t improving.
He advised that once an employee has been in employment for six months (for companies with 15 or more employees) or 12 months (for companies with 14 or less employees), they gain access to the unfair dismissal system.
“If during that period – when the employee doesn’t have access to the system – you have concerns about their performance, there usually isn’t much benefit in giving the employee the benefit of the doubt,” Riekert said.
“Employers should act during that time, as it isn’t worth waiting it out to then get dragged to the FWC and go through the whole legal process.”
Managing poor performance is an issue that is, unfortunately, commonplace for many HR professionals – and one that has the potential to wreak havoc if handled poorly.