'If a view is formed that a program should be done, then it is to be done,' says Commission
Performance improvement plans (PIPs) and other similar improvement programs in the workplace are critical for employers to ensure that their staff is performing up to expectations.
The Fair Work Commission has lauded employers for programs that can help identify areas of weakness and develop solutions that can improve staff performance.
In this case, an employee questioned if his improvement program was necessary, adding that he did not agree that his performance was “substandard.”
Meanwhile, the employer said his failure to “accept feedback” led to his dismissal.
Background of the case
The 58-year-old employee worked as a visual arts teacher at Tamworth high school. He had been employed for almost 11 years and had been in the NSW Teaching Service for 33 years at the time of his dismissal.
Since 2019, senior staff would raise their concerns to the employee directly about his performance. According to records, he did not “agree that this was necessary as he did not agree his performance was sub-standard.”
In 2020, the concerns “progressed to more specific issues” but were still brought up in an informal manner. Late that year, the principal gave him a formal PIP, which was converted into a Teacher Improvement Program (TIP).
According to the employer, a TIP is a formal program of up to 10 weeks of performance assessment and support. If a teacher shows unsatisfactory performance in completing a TIP, dismissal usually follows “for not meeting the required standards of teaching.”
The employee was dismissed because he was assessed as not satisfactorily completing the TIP. However, it was not immediately effected.
The TIP’s end had a lengthy review and consideration process by the Professional and Ethical Standards (PES) section within the Department of Education’s central office.
Aggrieved by the decision, the employee filed an unfair dismissal claim before the NSW Industrial Relations Commission.
The parties’ arguments
The employee said, “until 2019, even in 2020, there had never been any serious suggestion that he was anything other than a highly experienced and competent teacher.”
He argued the TIP was “unfair in its design and implementation” and that “no proper consideration was given to the behaviour of students in the classes he taught when assessing his performance as a teacher.”
He added that the ones assessing the TIP had “bias against him.”
On the other hand, the employer said that the TIP was a way to improve his teaching performance and that he “received both informal and formal support.”
It defended the program, saying the employee was assessed as “not satisfactory to continue in the teaching service.”
The principal of the school until the end of 2020 gave his position to defend the employer:
“In my view, he demonstrated a lack of commitment to the TIP during my period as supervisor and principal. At no point did he demonstrate to me that he was willing to engage with the process and take on any feedback that was given to him by any of the observers. In my opinion, he was fighting his performance management process,” the principal said.
“It appeared to me that he never fully accepted that it was his responsibility as a teacher to try and improve his performance to a level that is proficient under the standards.”
“At the review meetings he spent a significant amount of his time trying to argue technicalities rather than engaging with the feedback; he raised a lot of irrelevant issues and overall, he seemed to be focused on finding fault with the process or with individuals and his performance gave no signs that he was working harder or trying to improve.”
Can an employee question an employer’s plans to improve the company? HRD previously reported on the case of “unhappy” employees who resisted changes in their roster structure.
The Commission’s decision
The Commission cited caselaw about the employer’s “paramount” obligation to protect children.
It explained the NSW Department of Education’s mandate:
“The degree of protection to be afforded to children is against anything less than competent teaching … the department and the school system only exist for children, not for any other reason, and that is a fundamental matter.”
The Commission also noted that an employed teacher “does not have the ability to reject a principal’s view of whether or not he or she needs improvement.”
“If a view is formed that a TIP is to be done, then it is to be done,” it said.
It found the improvement program was procedurally fair, including the decisions that led to its implementation.
“The employer was concerned about his performance as a teacher, gave support and opportunity to the applicant to reach the required standard, and gave him a fair opportunity to respond to the conclusion that his performance warranted dismissal,” the decision said.
Ultimately, the Commission said the employee was not unfairly dismissed.
In another case, an employer put a worker on a PIP after he failed to reach his monthly target. He refused to sign the PIP and rejected “both its process and substance.”
