Worker continued involvement in preferred project despite new role responsibilities
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a senior surveyor who argued he was dismissed after an unjustified performance management process involving four performance improvement plans.
The worker had been employed for over four years when his employment was terminated in April 2025 following an extensive performance management process that extended from May 2024 into 2025.
The employer contended the worker had significant problems in his capacity to perform his job, which did not improve to the requisite level.
The worker claimed his performance was assessed against unrealistic measures and his responses were not properly considered. He argued he was not given adequate resources, direction or training to succeed.
The employer submitted that the termination was fair because it identified significant problems in the worker's capacity, which did not improve after an extensive performance management process.
From digital cadastre project to land reform
The worker commenced working for a Victorian government department on 17 November 2020, initially employed to work in the Digital Cadastre Modernisation Project as a senior cadastral surveyor.
The project's objective was to digitally map and improve cadastral boundaries for the entire State of Victoria. The worker was considered a subject matter expert in some aspects of the project.
When the project ceased in its then form at the end of June 2023, the worker's role also stopped, and he obtained a role with Land Reform Projects as a senior surveyor, commencing at the beginning of July 2023.
The evidence supported the conclusion that the worker would have preferred to continue working on the digital cadastre project and that he took the new job, particularly so he could maintain visibility over other opportunities more in line with his preferred work.
After commencing in his new role, the worker continued to engage in work associated with the digital cadastre project.
To some extent, the worker was involved in this work because he was asked to by other people within the department, including those more senior to him.
The worker's manager became frustrated with the worker's performance, believing that the worker's continued involvement in the digital cadastre project was detracting from his required work.
The manager considered that this work was taking the worker's focus and time away from his other duties. A meeting was held on 13 October 2023, in which it was discussed that the worker could spend up to twenty per cent of his time on digital cadastre work.
Performance concerns throughout 2023 and 2024
The manager's concerns about the worker's performance began as early as a month after the worker started in his role.
Throughout the second half of 2023, the manager formed concerns specifically about the worker's failure to make progress on tasks assigned to him.
The worker appeared to claim he was working toward the completion of tasks while also being involved in other tasks.
He claimed he was receiving conflicting instructions from colleagues and that he was not familiar with relevant procedures and software.
After having consulted with the people and culture team, on 14 November 2023, the manager told the worker he would place him on an informal performance improvement plan.
Shortly afterward, the worker reported the sudden death of his father-in-law. The manager decided not to implement the informal plan and instead allocated the worker a new task.
By the end of December 2023, the manager considered the worker had again failed to make sufficient progress. In early 2024, the manager provided the worker with a spreadsheet tool to help break tasks into smaller parts.
The manager considered this somewhat unprecedented for someone at the worker's level of seniority. The worker said he did not find it helpful.
On 24 April 2024, the manager sent an email that said: "It is disappointing to note that after 10 months of employment, there has been a consistent lack of meaningful outcomes and contributions from your end. Your lack of performance is not sustainable, and we need to see immediate improvements as we cannot continue to operate in this manner."
Four performance improvement plans implemented
On 20 May 2024, the manager conveyed that a four-week informal performance management plan would be implemented, describing this as a "final attempt at lifting [the worker's] performance" before moving to a formal process.
The manager later advised the worker that his work still fell below the anticipated standard, but decided to extend the informal plan rather than proceed to formal counseling.
On 2 August 2024, the manager recorded that it was necessary to progress to the next phase because the worker had not been able to complete the work assigned.
On 22 August 2024, a letter was sent advising that the worker's work was below expected standards. The worker was entitled to respond. A meeting was held on 28 August 2024.
The worker provided an eighteen-page written response. Key matters raised included that his failure to complete assigned tasks was due to being repeatedly re-assigned before completion and being given conflicting instructions.
The worker also said any failures were due to a lack of formal process and that he had not had prior exposure to relevant systems and software.
On 9 September 2024, the first formal performance improvement plan was provided, to run from 9 September 2024 to 18 October 2024.
The worker was provided with additional time because he contracted COVID-19 and his father passed away.
On 24 October 2024, the manager advised the worker had not succeeded, recording that some tasks were not completed within deadlines and some were not completed at all.
The worker conceded he did not complete the first plan but claimed the tasks were not ones he had been previously required to undertake in his role with his new employer. On 7 November 2024, the second plan was provided.
On 21 November 2024, the worker submitted his work. The tasks were not completed. On 6 December 2024, the third plan was provided. On 20 December 2024, the worker submitted work that the manager described as "predominantly incomplete".
When the worker returned from annual leave, it was agreed that he would be provided with an extension. On 7 February 2025, the worker submitted further work. Not all tasks and deliverables were completed.
Show cause process and termination
On 3 March 2025, the manager sent a letter advising that it had been assessed that the worker had not met expected work performance standards and that the department proposed to terminate his employment.
A meeting would be held to allow the worker to respond. Prior to the meeting scheduled for 11 March 2025, the worker sent the employer a letter raising a dispute.
Five versions of this letter were provided, each appearing to be progressive drafts. Each draft exceeded 70 pages.
The letter included assertions that the process was not consistent with the applicable enterprise agreement, that the worker was not able to arrange attendance of a representative at meetings due to insufficient notice, and that there was bias in the process.
A meeting occurred on 11 March 2025. The worker's activation of a dispute process delayed the finalisation of the termination process, and during the balance of March 2025, the worker continued to work as instructed.
On 2 April 2025, the worker was invited to a meeting the following day. The meeting on 3 April 2025 occurred online, during which the manager advised that the decision had been made to terminate his employment.
The letter confirming termination said the reason was that the worker's performance and delivery had not improved to the required standard within the reasonable time period following the process.
The worker filed an unfair dismissal application. The application was the subject of a hearing. The worker advocated for himself. The materials filed by the parties were voluminous.
The worker filed a 45-page outline of argument, a 27-page witness statement, a 32-page reply statement and over 900 pages of documentary material, which included five drafts of the same document.
Valid reason for dismissal found
The FWC examined whether there was a valid reason for dismissal related to the worker's capacity.
The reason for the decision was that the employer considered the worker's performance had not been to the required standard and that, after an adequate opportunity to improve, he could not do so.
The worker contended that the critique of his work was not sound, defensible or well-founded. Several key propositions formed his contentions, including that the process was misconceived, that it involved tasks he was not used to performing, and that he was not provided with adequate training and resources.
Against these propositions was the fundamental assertion that the worker did not complete the work that was allocated. This was, to some extent, conceded by the worker at various times.
The Commissioner observed: "But it seems to me the inescapable conclusion must be that in relation to much of the work allocated to [the worker], whether in 2023 or early 2024, or throughout the PIPs in 2024, it was simply not completed to conclusion."
The Commissioner accepted that, being confronted with highly technical work, even though the worker was an experienced professional, a level of uncertainty about exactly how his employer wanted his work presented was likely unsettling.
However, the Commissioner stated: "However, [the worker's] case is effectively based on the proposition that in circumstances where the supports around his role were not as he would have liked, and where he was making his best efforts to contribute to the work of the organisation, those best efforts should be accepted as good enough, despite them not aligning with the outcomes being sought by his employer in respect of his role. I do not accept that proposition."
The Commissioner found the reason provided for termination was sound and well-founded, and thus a valid reason for dismissal relating to capacity.
Procedural fairness requirements met
The FWC examined whether the worker was notified of the reason for dismissal and given an opportunity to respond.
The Commissioner found there was no question that the worker was informed of the reason before it occurred.
The worker was advised in writing on 3 March 2025 that the employer was considering terminating his employment for reasons associated with his work performance. He had previously been given warnings that were detailed in their critique.
The Commissioner found the worker was provided with an opportunity to respond, noting that having provided four versions of a letter running some 70 pages, in effect over 280 pages of response, the submission that he was not given an opportunity was difficult to accept.
The Commissioner stated: "I consider that [the worker's] allegations...that he was not afforded enough time to provide responses to assessments made of him, lack substance. [The worker] was throughout the process, which extended over a significant period of time, provided numerous opportunities to put forward his side of the story, in meetings and in writing."
The Commissioner found the worker was warned about unsatisfactory performance before dismissal, stating: "I accept that [the worker] was warned about unsatisfactory performance before his dismissal. He was provided with several warnings, and each provided him with sufficient detail as to the nature of the concerns held by [the employer] about his work performance. The performance management process, which was detailed and robust, extended over four performance improvement plans and a show cause process, throughout 2024 and into 2025."
Dismissal not harsh, unjust or unreasonable
The Commissioner acknowledged the effect of termination on the worker was harsh, also taking into account his age of 58 years.
The Commissioner also stated that an unfortunate coincidence of circumstances resulted in the worker's failure to meet the requirements of the role.
One was his incompatibility with his manager. Another was the ongoing draw back towards the digital cadastre project, where his passion lay.
The Commissioner considered it evident that the worker was a competent professional with the capability in a highly skilled area.
The Commissioner concluded that, having made findings in relation to each matter specified in section 387 of the Act, the weight of considerations bore in favour of a finding that the dismissal was not harsh, unjust and unreasonable.
The Commissioner found the worker was not unfairly dismissed. The FWC ordered that the application be dismissed.
In conclusion, the Commissioner expressed hope that the worker's experience did not render him ineligible for any future job opportunity, especially relating to the digitisation aspects of the work in which he was an expert.
