Do I have the right to say no to being performance managed?
You are obliged under the law, and most likely under contract, to follow the reasonable and lawful directions of your employer. This means that if your employer instructs you to undergo performance management, and provided it is reasonable, you have to cooperate with your employer to undertake the performance management procedure.
A simple answer to this question is that, in most cases, you do not have the right to refuse to be performance managed.
There are limited circumstances where you can refuse, such as if you are being required to do something that is illegal, or manifestly unreasonable. Such a refusal should be done carefully and with consultation from your legal advisor.
You may also be able to takes steps to challenge your performance management if your employer performance manages you in breach of the general protections provisions. We recommend obtaining proper legal advice before taking any such action.
How long does performance management last?
This varies depending on the individual circumstances. Performance management could be as short as a month and it could be as long as a year. It depends on the alleged deficiencies and the time needed for the employee to have a reasonable opportunity to improve.
We find that the average length of performance management lasts between 3 to 6 months.
We find that the size of your employer has an effect on how long the performance management lasts. Smaller employers tend to undertake performance management quicker, whereas larger employers undertake a longer performance management process.
Check internal policies and procedures to see if your employer has any processes about performance management, including how long it can last.
Do I need to work to address the issue?
You should act reasonably to attempt to address the concerns your employer has.
If you are unsure what the concerns are or if they are ambiguous, ask for specific examples and further clarification.
Sometimes employees are placed on a performance management plan when there is no reasonable basis to do so. In that situation, it is a good idea to get legal advice.
Even if you believe you are being performance managed for an ulterior motive (such as management trying to take steps to terminate your employment, even when there are no deficiencies in your performance), the best approach is to respond reasonably to all the performance management issues raised and to get advice on the best strategy to adopt moving forward.
Can my employment be terminated if I don’t pass the performance management plan?
Yes, your employment can be terminated.
If you are terminated, you may have rights to file an unfair dismissal or general protections claim.
For example, you may lodge an unfair dismissal claim if you were not given a reasonable opportunity to improve your performance, or if the performance issues made against you by your employer were not true.
You may lodge a general protections claim if you were placed on a performance management plan (and subsequently terminated) because you exercised a workplace right or due to other prohibited reasons as set out under the Fair Work Act 2009.
Other alternatives to your employment being terminated are verbal written warnings, transfer, redeployment, or demotion in some circumstances. Generally, termination is seen as a last resort.
Misconduct at a work-related social event is a valid reason for dismissal
Excessive personal texting for a private side business whilst at work a valid ground for dismissal
Sexually harassing conduct weighs against harshness of dismissal
Insubordination caused by disagreeing with employer’s actions is a valid reason for dismissal
Evidence of mild autism is insufficient to excuse sexually harassing conduct
Dismissal for carrying on a consensual romantic affair with student, unfair and unreasonable
Dismissal for posting Hitler moustache on Facebook, not unfair or unreasonable but harsh
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations
He said, she said: Marital breakdown—not a valid cause for redundancy or dismissal for cause
