IR & LEGAL UPDATE MANAGING UNDERPERFORMING For instance: IT IS ALSO IMPORTANT EMPLOYEES • Was your employee given prior notice THAT A FAIR AND What do you do with employees of the actual performance issues in TRANSPARENT who underperform? question? HIA is often asked for advice about how to • Did they have an opportunity to respond PERFORMANCE deal with unfair dismissal claims brought by to the issues raised regarding their MANAGEMENT PROCESS IS former employees who were dismissed for performance? UTILISED SO THAT THE poor performance. • Did they have a reasonable opportunity to improve their performance? REASONS FOR THE A misconception amongst many It is also important that a fair and DISMISSAL ARE CLEAR employers is that you only need to have transparent performance management a ‘valid’ basis for firing or dismissing process is utilised so that the reasons for doing the same job for a long time without the employee. However, even gross the dismissal are clear. Your processes criticism or warning the view may be taken incompetence may not be enough. In order do not need to be overly complex or that your business did not in fact expect to successfully defend an unfair dismissal convoluted, but the key thing is to be able a certain level of performance from the claim, or to prevent a claim arising in the to demonstrate that your employee was employee. A number of practical steps can first place, it is important that your business afforded procedural fairness and that the be implemented within your business to have in place clear processes and termination was not arbitrary. manage underperformance: procedures to issue appropriate warnings 1.In the first instance, you should identify to poorly performing employees and How should performance issues the performance issues in question to provide them with opportunities be dealt with? (including the dates on which they to improve. If your employee is not meeting the occurred, what took place and if there When will a dismissal be ‘unfair’? expectations of their position then it is were any witnesses present). An unfair dismissal will occur when an important that you communicate your 2.Have a formal meeting with the employee has been dismissed from their job concerns directly with that employee. employee. Make sure that you are not in a ‘harsh, unjust or unreasonable manner’. Allowing poor performance to fester and seen to ambush the employee with the In addition to considering whether there continue, rather than directly addressing meeting – advise them of the purpose was a valid reason for termination, the it, not only impacts on productivity and of the meeting beforehand, and invite Fair Work Commission will also examine workplace morale but may expose you to them to have a support person from whether the employee was ‘fairly’ treated in a greater risk of an unfair dismissal claim. your business present. At the meeting a procedural sense. For instance, if your employee has been you should: BUILDING NEWS ISSUE 3/2018P11