Do performance improvement plans help to mitigate unfair dismissal claims?

Under-performing employees may be a result of a change in their ability to adapt and cope with the new job requirements and environment.  How far do you need to go to adapt the job to be within their capabilities?

Where employees are not able to adapt or cope to new job requirements or environments, employers need to consider:

  1. the extent of the changes to the position and whether the changes are so significant that the original position has been made redundant and a new position created;
  2. the willingness of the employee to embrace the new requirements or environment;
  3. whether the skills required of the employee are substantially the same and if not, what further reasonable training could be provided to the employee to assist them.

If the employee receives further reasonable training and their performance does not improve, the employer needs to implement a performance improvement plan.

This question is around performance management and GP’s signing people off on “work related stress” on a normal medical certificate rather than work cover. What is the best way to continue with the next steps of performance management including termination?

Prior to the employee returning to work, employers should require the employee to provide satisfactory evidence of the employee’s fitness for work, which includes participation in a performance improvement plan or disciplinary process (as appropriate).  Where reasonable, the employer may direct the employee to participate in an independent medical examination to ascertain the employee’s fitness for work.

Once the employer is satisfied with the employee’s fitness for work, the performance management process should continue. The employer should meet with the employee to discuss the issues and clearly articulate the required standards and expectations moving forward. If the employee’s medical condition requires reasonable adjustments, this should also be considered.

Do performance improvement plans help to mitigate unfair dismissal claims? If so, how?

Yes, a performance improvement plan and performance management system will help to mitigate unfair dismissal claims. This is because employees are entitled to be informed of any under-performance issues and be given an opportunity to show improvement prior to a dismissal decision being made.

Employers need to ensure that:

  1. managers are appropriately trained in managing underperforming employees and can identify when an employee needs to be placed on a performance improvement plan. It is preferable to have management guidelines and checklists to ensure that managers follow proper process;
  2. the performance improvement plan accurately documents the performance issues and sets clear standards and expectations for the employee;
  3. the employee has the skills to meet the standards and expectations set by the employer, and if they do not, further support and training is provided;
  4. the employee’s performance is monitored and regular meetings are held to provide honest feedback to the employee about their progress; and
  5. the employee is aware that if there is unsatisfactory improvement under the performance improvement plan, disciplinary action may include termination of employment.

Our managers are terrified of continuing performance management of underperforming staff if the employee advises they are pregnant – what can I advise them?

Where performance issues have been identified and a performance management process has been implemented with an employee, the performance management process can and should continue even where the employee advises that they are pregnant.

However, in determining whether the employee is meeting the required standards and expectations, it is necessary to consider any mitigating circumstances that may impact on the employee’s performance and this may include the employee’s pregnancy.


belinda-winter-270x224To get more answers regarding performance management of employees within Australia, feel free to contact Belinda Winter, Partner, Cooper Grace Ward.

Belinda was the speaker on this topic at the HR Law Masterclass Brisbane and was the standout speaker of the series, providing extremely important insights to all attendees.

Belinda and her team provide strategic advice to employers about various matters including restructures, enforcing restraints of trade, managing long term ill and injured employees, employee misconduct, poor performance and effecting termination of employment. The team also provides assistance to clients managing industrial issues such as enterprise bargaining, right of entry and industrial action.

Belinda and her team are experienced in conducting complex workplace investigations in response to safety related incidents or allegations of misconduct, as well as providing advice to clients about safety compliance matters. Belinda can be directly reached via email or phone.