FWA decision endorses regular and honest performance reviews
FWA decision endorses regular and honest performance reviews
A decision of the Fair Work Commission on 8 February 2013 has highlighted the importance of regular and honest performance reviews. The Commission ultimately found in favour of the Employer in an application by an Employee for unfair dismissal because the Employer was willing to devote the time to proper performance reviews and performance management.
Mr Robert Schade (the Applicant) was employed by Transend Networks Pty Ltd (the Respondent) from 11 August 2008 until his employment was terminated on 31 July 2012.
On 28 March 2012 the Applicant was advised that an independent review of his performance concluded that the Applicant’s performance and conduct did not meet the required standard of a Senior Technical Officer and he was provided with a first warning and a summary of the independent review. A formal twelve week performance management process was then put in place. Further meetings and warnings were provided and eventually on 31 July 2012, the Applicant was provided with a letter of termination which advised that his employment was to be terminated that day because his performance was still unsatisfactory. He was paid five weeks pay in lieu of notice.
The reasons for the termination were:
(a) inability to demonstrate being able to work autonomously to deliver the standard of work required by a Senior Technical Officer – Protection and Control;
(b) not accepting personal accountability to deliver work in a timely manner and being accountable for the work outputs;
(c) tasks completed contain inaccuracies or errors which necessitate additional rework and effort (often from others);
(d) not demonstrating work practices and understanding of the power system to the standard of a Senior Technical Officer – Protection and Control;
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:
s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); The Applicant’s employment was terminated for poor performance. The issues related to the Applicant’s employment were not recent inventions. Problems were identified with the Applicant’s performance in his 2010 and 2011 reviews. The Commission accepted that the Applicant was not able to perform the role of Senior Technical Officer. That is a valid reason for the termination of his employment.
s387(b) whether the Applicant was notified of that reason; At the meeting on 18 July 2012 the Respondent advised the Applicant that he had not performed to the standard of a Senior Technical Officer and this may lead to the termination of his employment. She referred to the minutes, conversations and previous correspondence to support this conclusion.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person; The Applicant knew that the purpose of the meetings was to review his performance. Further, the Applicant had the opportunity and took the opportunity to respond to what he saw as inaccuracies in the record. The procedure was documented by the Respondent which assisted when the Applicant argued that he was not provided with the appropriate material to respond.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal; The Applicant was not refused the opportunity to have a support person present and in fact did have representation at some of the meetings. There is no evidence to suggest that the Applicant asked for meetings to be rescheduled so that he could have a representative present and that was refused.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal; The Respondent had identified issues in the performance reviews and provided the Applicant with training and assistance. The Respondent put in place a detailed work plan which set out their expectations. Throughout the work plan the Respondent provided feedback to the Applicant about his work performance. The Applicant received formal advice that his work was not up to standard.
s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; The Respondent is a large government business enterprise and the Applicant submitted that it should not be excused of any shortfalls in its process.
The Respondent first sought to discuss the Applicant’s employment in a less formal way in July 2011 and then November 2011. The Applicant did not respond positively to these criticisms. The Respondent then put in place an open and transparent performance management process which involved the Applicant.
What are the lessons?
The Commission ultimately concluded that there was a valid reason for the termination of the Applicant’s employment. The Respondent made an assessment of the Applicant’s performance after a detailed review of the Applicant’s performance and having put the Applicant on notice that he was not performing to the standard required of a Senior Technical Officer. The Applicant was afforded procedural fairness.
It is always good practice to ensure that position descriptions are up to date and valid and where appropriate, have performance measures attached to them. A formal and consistent performance review should occur at least annually with all of your employees, using the position description as the basis for whether the employee has adequately performed in the role. It is difficult to dismiss an employee for poor work performance when they have had no performance reviews, or have had favourable reviews when they shouldn’t have.
We can assist you with preparation of position descriptions and to organise a fair performance review process to help measure and report on employee performance.