WHAT IS UNDERPERFORMANCE?

Employees are expected to perform the tasks assigned to them to the standards set by the employer. Standards of work performance vary from time to time because businesses modify their operations, procedures and processes to increase their productivity.

WHY DO EMPLOYEES UNDERPERFORM AT WORK?

Employees underperform when they are unsure of or uninformed of the employer’s standards or expectations. It is possible that when the employee was hired, the employee’s abilities were mismatched with the duties and of the role or position they were given.

WHAT CAN EMPLOYERS DO WHEN THEIR EMPLOYEES UNDERPERFORM?

Employers can put underperforming employees under performance management. Performance management is a process which includes any or all of the following steps: The employer privately meets with the underperforming employee and informs and clarifies for them what the employer’s expectations, goals and standards are. The employer discusses the underperformance of the employee, specifically detailing to them the areas where they do not meet the employer’s expectations or standards. The employer and the employee discuss strategies for the employee to improve their performance including training or retraining of the employee.

WHAT CAN AN EMPLOYER DO WHEN AN EMPLOYEE PERSISTS IN UNDERPERFORMING ?

When employees’ underperformance persists despite training, retraining and performance management, the employee must, generally speaking, give the employee a warning that if their performance does not improve, they are at risk of dismissal.

IS PERFORMANCE MANAGEMENT BULLYING?

The objective of performance management is to ensure employee productivity and minimise employee turnover. However, sometimes employees who are placed under performance management make allegations that the performance management constitutes bullying.

General Protections Claims

What are general protections?

General protections are outlined in Chapter 3, Part 3-1 of the Fair Work Act 2009 (Cth) and include:

protection from adverse action because you have, you have exercised or propose to exercise a workplace right under section 340 of the Fair Work Act 2009 (Cth);
protection from coercion under section 343 of the Fair Work Act 2009 (Cth);
protection from your employer exerting undue influence or pressure in relation to a decision about the terms and conditions of your employment under section 344 of the Fair Work Act 2009 (Cth);
protection from being misled about your workplace rights or your ability to exercise such rights under section 345 of the Fair Work Act 2009 (Cth);
protection from engaging in industrial activities, being misrepresented about your ability to engage in industrial activities, or being a member of an industrial association (such as a union) under sections 346, 348, 349 and 350 of the Fair Work Act 2009 (Cth);
protection from discrimination from your because of your:
- race;
- colour;
- sex;
- sexual orientation;
- age;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities;
- pregnancy;
- religion;
- political opinion;
- national extraction; or
- social origin under section 351 Fair Work Act 2009 (Cth);
protection from being dismissed by your employer because you were temporarily absent from work because of an illness or injury under section 352 of the Fair Work Act 2009 (Cth);
protection from an industrial association, or an officer or member of an industrial association demanding payment of a bargaining fee under section 353 of the Fair Work Act 2009 (Cth);
protection from an industrial association or a business discriminating against an employer because of the type of document which sets out the employees’ terms and conditions of employment under section 354 of the Fair Work Act 2009 (Cth);
protection from coercion to make a decision whether or not:
- to employ or engage a particular person or independent contractor; or
- allocate particular duties or responsibilities to a particular employee or independent contractor;
- or designate particular duties or responsibilities to a particular employee or independent contractor under section 355 of the Fair Work Act 2009 (Cth); and
protection from sham arrangements, including;
- misrepresenting employment as an independent contracting arrangement under section 357 of the Fair Work Act 2009 (Cth);
- dismissing or threatening to dismiss an employee to reengage them to perform the same or substantially the same work as an independent contractor under section 358 of the Fair Work Act 2009 (Cth);
- misrepresentation to engage a worker as an independent contractor under section 359 of the Fair Work Act 2009 (Cth).

What is general protections application?

A general protections application is an application which is made because adverse action is taken because you had one or more of the protections as outlined above.

Adverse action is defined under section 341 of the Fair Work Act 2009 (Cth) and includes, but is not limited to:

An employer:
- Dismissing an employee;
- Injuring an employee in their employment;
- Altering the employee’s position to their prejudice; or
- Discriminating against an employee and other employees of the employer.
A prospective employer:
- Refusing to employ a prospective employee; or
- Discriminating against a prospective employee in the terms or conditions which the prospective employer offers to employ the prospective employee.
A principal (in the case of an independent contractor):
- Terminating the contract;
- Injuring the independent contractor in relation to the terms and conditions of the contract;
- altering the position of the independent contractor to the independent contractor’s prejudice;
- refusing to make use of, or agreeing to make use of, services offered by the independent contractor; or
- refusing to supply, or agreeing to supply, goods or services to the independent contractor.
A prospective principal (in the case of an independent contractor):
- refuses to engage the independent contractor; or
- discriminating against the independent contractor in the terms or conditions on which the principal offers to engage the independent contractor;
- refusing to make use of, or agreeing to make use of, services offered by the independent contractor; or
- refusing to supply, or agreeing to supply, goods or services to the independent contractor.

What is an adverse action claim?

Sometimes a general protections application is used interchangeably with an adverse action claim.

What are employee’s workplace rights protections under the Fair Work Act 2009 (Cth)?

An employee is protection from adverse action because where they have, exercise or propose to exercise a workplace right under section 340 of the Fair Work Act 2009 (Cth).

Workplace rights include:

an entitlement to the benefit of, or having a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body;
an ability to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
an ability make a complaint or inquiry:
- to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
- in relation to your employment.

Process or proceeding under a workplace law or instrument

Process or proceeding under a workplace law or instrument includes under section 341(2) of the Fair Work Act 2009 (Cth):

a conference conducted or hearing held by the FWC;
court proceedings under a workplace law or workplace instrument;
protected industrial action;
a protected action ballot;
making, varying or terminating an enterprise agreement;
appointing, or terminating the appointment of, a bargaining representative;
making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
agreeing to cash out paid annual leave or paid personal/carer’s leave;
making for flexible working arrangements;
dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
any other process or proceedings under a workplace law or workplace instrument.

Complaint or inquiry in relation to employment

In the 2014 Federal Circuit Court case of Evans v Trilab Pty Ltd the court found that the making of such complaints and inquires only needs to have an indirect nexus to the Applicant’s employment and may be a complaint or inquiry about a workplace process or the conduct of another person which has implications or concerns for an employee’s employment.

How much are settlements in general protections claims?

Settlements can include monetary (which can include past and future financial losses and damages for hurt and humiliation or medical expenses) and non-monetary terms (such as changing a termination to a resignation, providing you with a statement of service as well as entering into a deed of settlement and release).

In the 2018-2019 financial year, 58% of general protections involving dismissal were resolved at conciliation at the Fair Work Commission stage. Of those matters, 25% included monetary compensation and 49.5% involved monetary and non-monetary settlement.

Of those which did not resolve, 26% were issued with a certificate so they could make a general protections court application.

In the 2016-2017 financial year, the Fair Work Commission 58% of matters which involved monetary compensation at conciliation involved a settlement of between 0-$5,999, 28% resolved for monetary compensation between $6,000 to $19,999, 7% resolved for monetary compensation between $20,000 to $59,999 and 2.4% resolved for monetary compensation between $60,000 to $100,000.

What To Consider Before Lodging A General Protections Claim

Before making a general protections claim you need to consider if you are eligible to make a general protections claim. Only national system employees can make a general protections claim.

There are 2 types of general protections claim which are available, a general protections claim involving dismissal and a general protections claim during employment.

Process for Dismissal Based Claims

If you are making a dismissal based claim this needs to occur within 21-days of being terminated, or if you were given no choice but to resign, from the date the resignation took effect in the Fair Work Commission. The matter will then be listed for a telephone conference. If the matter does not resolve at conference, after receiving a certificate from the Fair Work Commission, you have 14 days to file within the Federal Court or Federal Circuit Court, following which the matter is usually listed for mediation.

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