An engineer has been awarded more than $20,000 in compensation after the Fair Work Commission criticised the performance management attempt undertaken by his former employer.
In July 2021, the engineer was summarily dismissed during a meeting over what his employer described as “continuing performance concerns”. The employee was subsequently required to gather his belongings from his workstation before being escorted to his car by the employer’s Chief Technology Officer.
After lodging an unfair dismissal claim in which reinstatement was sought, the Commission concluded that the employer did have a valid reason for dismissal on account of:
· deficiencies in the employee’s “work quality and timeliness” over a six-month period
· the employee’s demonstrated unwillingness to listen to feedback from his managers
or to seek to understand why errors were pointed out.
However, despite this, it was held that there were a number of shortcomings in the employer’s approach which resulted in procedural fairness not having been applied.
While the employee had been regularly counselled about the quality of his work and his performance over a six-month period prior to being terminated, the alleged performance management process undertaken was described as being “ham-fisted” by the Deputy President.
Although concerns regarding the employee’s performance were discussed at two meetings with his manager, they were not called performance meetings or performance reviews and no records were kept. At the second meeting, the employee was told that he would be “performance managed” but no details were provided as to how that would occur, and no records were taken or maintained.
The Commission held that although the employer had told the employee in May 2021 that he was under performance management:
· the employee was never placed on a formal performance management plan.
· there was no established benchmark or review point against which his performance was
to be assessed.
· no performance improvement plan was developed, implemented, or communicated to the
The employer proceeded to dismiss the employee despite the absence of verbal or written warnings concerning his performance having been issued.
It was further held by the Commission that the employer had predetermined that the dismissal would occur, despite the employee:
· not having been made aware that his employment was at risk
· not having been given any prior notice of the requirement to attend the dismissal
meeting or its intended purpose.
· not having been provided with an opportunity to respond to the employer’s position that his performance failures warranted dismissal prior to the decision to terminate having been made.
The Commissioner held that although the employer did have a valid reason for termination, the unfair process that was undertaken prior to dismissing the employee carried greater weight.
In being denied due process, the employee was denied the opportunity to improve the standard of his work to avoid potential dismissal. On this basis, it was determined that the employee’s dismissal was harsh and unjust.
Despite this finding, reinstatement was deemed to be inappropriate. The employee was however awarded approximately $21,470 plus superannuation in compensation.
If you require advice or assistance with understanding your obligations when considering termination of an employee due to underperformance, or should you require support regarding any HR matter, please contact the team at HR Advice Online at [email protected]
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