Ensuring performance management processes are regularly reviewed and compliant with current employment legislation will help employers protect themselves from claims that stem from outdated or poorly handled performance management processes.

Overlooking these processes could expose employers to a multitude of legal pitfalls, which may include claims for: 

• unfair dismissal  
• discrimination 
• breach of contract  
• adverse action. 

Under the provisions of the Fair Work Act 2009 (Cth), all constitutional corporations are at risk of potential unfair dismissal claims.  

Employers with 15 or more employees have a six-month qualifying period within which employees will not be able to access unfair dismissal remedies, and employers with less than 15 employees will have a 12-month qualifying period. 

In reviewing performance management processes, employers should consider the following areas: 

Communication 

What are the expectations of performance? Have these been clearly articulated to employees? Are they documented? Have employees been verbally warned that their performance is substandard? 

Written warnings 

Employers should always consider putting warnings in writing. This prevents any ambiguity over what may/may not have been said to the employee. They should clearly articulate that failure to show improvement may lead to termination of employment. 

Time frames 

Have employees been given an opportunity to respond to issues regarding performance? Does the process give a reasonable period to demonstrate improvement?  

It is important to note that what might be deemed to be reasonable in one situation may differ in others, so it is important to treat each situation on a case by case basis.  

Training 

Is the provision of additional training or assistance feasible? Will it afford the employee a genuine opportunity to improve their performance?  

By developing processes that are sensible and reasonable, employers can reduce the potential of claims being made and enhance the ability to defend a claim that has been brought against them.  

For additional information, contact CCIWA’s Employee Relations Advice Centre on 9365 7660 or advice@cciwa.com.