She refused a performance plan, and lost her job and her claim

What happened

Angela Kokke had worked for Momentum Energy for about four years. In late 2023 employees complained about her behaviour, including that she was rude and intimidating, and the company was concerned she had ignored directions to work in the office.

On 6 February 2024 the company’s network manager put her on a one-month performance plan and required her to meet him about it. A performance plan (often called a PIP) is a set period in which an employer spells out its concerns and what it expects to change. He also directed her to join online work meetings called ‘connections team chats’ and to work from the office, rather than from home, on Tuesdays and Wednesdays while the plan ran.

Ms Kokke replied that the letter was ‘completely unnecessary and unlawful.’ Over the following weeks she complained that the workplace was unsafe, that her team had caused her mental health problems and that the manager was trying to micromanage her. She said she would not meet him and would not come to the office unless she deemed it safe. A second manager replied that the company considered the workplace safe, there were no details to support her allegation, and the plan would proceed.

The plan and the show cause letter

A letter dated 14 March 2024 set the plan to run from 19 March to 16 April 2024. It said that if she could not comply with any part of the plan for medical reasons, she should provide information from her doctor by 18 March so the company could consider adjustments. It also warned that failing to follow lawful and reasonable directions might result in termination.

She said she was not required to provide health information, and none arrived. She called it the company’s ‘supposed plan’ and said she would not agree to its ‘one-sided and arrogant claims and directives’. She came to the office on Tuesday 19 March but did not join the team chats, stayed away on Wednesday 20 March, and did not accept the plan.

On 20 March the company asked her to show cause why she should not be dismissed. She replied that she would not agree to the plan, that mental health problems meant she did not have to join the chats, and that the directions were not valid. On 27 March 2024 the company ended her employment immediately. It said she was not entitled to notice, but paid her four weeks’ pay.

Was she dismissed at all?

Ms Kokke applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Momentum said it had not dismissed her: her refusals were a repudiation of her contract (conduct showing she no longer meant to be bound by it), which it had simply accepted.

Deputy President Colman agreed she had repudiated her contract, but found she was still dismissed. Under s 386 the question is whether the employment ended on the employer’s initiative. Repudiation alone does not end the employment at the employee’s initiative, though it might where the employer has no real choice. Here Momentum could have kept her on. Unattractive as that was, it was Momentum’s decision to end her employment, not hers, so she could bring the claim.

Why the dismissal was fair: the legal test

The central question was whether the dismissal was harsh, unjust or unreasonable, which the Commission decides by weighing the factors in s 387. The first is whether there was a valid reason related to the employee’s capacity or conduct.

The Deputy President found a valid reason. Ms Kokke refused to accept the plan and to engage with the company’s efforts to address its concerns, and refused two other directions he found lawful and reasonable: to attend the office on set days and to join the team chats. She said these clashed with her health, but he found ‘there is simply no medical evidence that substantiates this.’ He found no evidence that the company or its managers behaved inappropriately towards her, and nothing to suggest the plan was unreasonable.

Openly defying her employer’s directions breached a fundamental term of her contract, so it was serious misconduct, and Momentum was entitled to dismiss her summarily, that is, without notice.

The process factors favoured the employer too. She was told the reason, and the show cause process gave her ample opportunity to respond. She had also been warned of the consequences of her conduct. He found the dismissal ‘plainly not unfair’ and dismissed the application.

The appeal

On 12 September 2024 a Full Bench refused Ms Kokke permission to appeal, finding no arguable error. Her medical letters from 2022 and 2023, it said, showed the Deputy President’s assessment ‘was plainly correct’, and a newer letter did not show she was unable to attend the office.

What this means for you

Being put on a performance plan can feel unfair, but this case shows that refusing to take part is risky. Directions to engage with a plan, attend meetings or work from the office on set days can be lawful and reasonable, and refusing them can be misconduct.

If a health condition genuinely stops you complying, give your employer the medical evidence it asks for by the deadline, and ask in writing for adjustments. Disagreeing with a plan is not the same as refusing it: you can take part while putting your concerns in writing or making a formal complaint. Consider getting advice before refusing a direction. If you are dismissed, an unfair dismissal application must be lodged within 21 days after it takes effect.