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Performance Management

Performance Management and Unfair Dismissal Applications

There is little as frustrating for a manager than an employee that constantly under performs or behaves inappropriately. When this happens, it is important that a correct and fair process is followed to deal with the issues.

When it comes to dismissing an employee, there is a chance that they may seek compensation or reinstatement through the protections afforded to them under unfair dismissal legislation and as such, it is important that employers are prepared.

The Fair Work Commission will seek to establish if the termination, and its process, was:

  • Harsh
  • Unjust
  • Unreasonable

As such, it is imperative that employers prepare themselves at each step to ensure that, should they end up fronting the Commission, they are able to defend their decision to dismiss.

Follow a process

It is important that employers have a consistent performance management process in place across the business.

Regular feedback should be provided to employees and issues should be addressed promptly. As a result, there should be a mechanism for managers to meet with the employee and address the conduct or performance issue immediately after it occurs, bringing to their attention the specifics of the matter and allowing the employee an opportunity to respond.

Remember that procedural fairness is key, so ensure that you provide sufficient notice to the employee of any performance management meetings and the opportunity to bring a support person.

Document, document, document

It is vital that managers keep notes of any issues and the way that these matters are addressed with the employee in question.

Notes of dates, times and any other specifics relevant to these matters should be kept by managers and taken during performance management meetings with employees. Furthermore, once verbal warnings have been issued, a formal performance management process comprised of written warnings should be undertaken.

Written warnings should include details of the ongoing performance management conversations had in the past and the reasons why it has become necessary to address these issues via written warnings.

If the issue is related to performance, it may also be necessary to issue the employee a Performance Improvement Plan to monitor their progress.

How do I decide?

A question we at Liquid HR often get is: “How many warnings do I need to issue before I can dismiss an employee?”.

There are no hard and fast rule dictating what is appropriate; it is highly dependent on what the issue is, the seriousness of the matter and other mitigating factors. For example, where an ongoing performance issue may warrant a verbal warning and three written warnings, a malicious breach of Work Health & Safety protocols, or a serious misconduct matter could warrant termination.

It is important that you follow your performance management process and seek the appropriate HR or legal support where necessary.

When it’s time

Deciding on the appropriate time to terminate an employee is never easy, but timing is essential to ensure that the risk to the organisation can be minimised.

Prior to the termination, you should ensure that you have followed all internal performance management processes and consulted all relevant parties. Also, ensure that your documentation relating to the matter is in order.

Mitigating the risk of a costly Unfair Dismissal claim can also be to ensure that you are compliant under section 387 of the Fair Work Act 2009 (Cth):

  • There is a valid reason for the dismissal
  • And procedural fairness was considered

To ensure this, it is important that you meet with the employee to discuss the most recent issue that has led to the decision to terminate and provide them the opportunity to respond.

If the employee presents mitigating circumstances, it is important that you give these due considerations prior to terminating their employment. Remember that there may be different personal circumstances that must be considered for each employee including mental or physical illness, family responsibilities and domestic violence that could be temporarily impacting an otherwise good employee.

If you do decide to terminate, you must issue the employee with confirmation of the termination in writing and the reasons why you have come to this decision.


Remember that it is important to be consistent when performance managing employees. A claim that ends up within the Fair Work Commission could be difficult to defend if different standards have been applied across different parts of the business or toward different employees.

When you are dealing with a poorly performing or behaved employee, it is important that the process is applied evenly and that matters of similar magnitude are dealt with in a similar manner.

Mostly, it is important that the business is able to demonstrate that the process followed was fair, just and reasonable and that the employee was given ample opportunity to improve their conduct or performance at every step of the way.

For more information on the topic, please contact us on 1300 887 458 and speak with one  of our HR Consultants. If you are interested in learning more about our HR services, including HR Outsourcing, HR Consulting, HR Advisory Services, contact us at