Performance Management
Problems At Work 

Performance Management

We understand that being on a performance management plan can cause uncertainty, worry and stress. We also find that businesses sometimes unlawfully place employees on a performance management plan, where the motives for performance management are not because the employee has genuine performance issues, but for some other reasons (which may be unlawful). We have assisted many clients successfully resolve performance management issues. We can assist you by:

  • Advising you of the steps to take to protect your rights.
  • Advising you on how to successfully complete the plan, address the issues raised, so you can stop being performance managed.
  • Help put you back in control by enforcing your rights – this may help you reduce the anxiety and stress often associated with performance management.

What Is Performance Management?

Performance management is essentially giving an employee an opportunity to improve their performance. It can be done formally or informally.

A more formal method is using a document, usually called a “performance improvement plan” or a PIP. This sets out all the alleged deficiencies.A performance improvement plan usually has regular check-ins to evaluate whether improvements are being made.

On the other hand, a more informal method of performance management involves conversing with the employee and providing progressive, informal feedback.

You should check if your business has a policy on how performance management occurs. If the business is deviating from the policy, you should query and raise this with management.

Larger organisations often have more formal performance management procedures. Smaller organisations tend to be less formal. The primary objective of performance management is to communicate to an employee that they are not performing their job correctly. It also aims to offer them an opportunity to improve, as well as provide assistance in their improvement

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.

Ghost-Write Documents On Your Behalf

We can prepare documents on your behalf which respond to the alleged performance deficiencies.

We can ghost-write documents for you, which means that we’ll prepare the documents and you send them to your employer. In this circumstance, your employer will not know that you are receiving legal advice as our name does not appear in any of the documents.

Negotiating For You

We can assist you in negotiating with your employer for a transfer to another department or to be redeployed elsewhere within your employer’s enterprise. If needed, we can advise and represent you in negotiating a mutual separation. This may involve you resigning in exchange for financial compensation. We will prepare all the settlement documents to ensure that your rights are protected and advise you on the quantum of compensation that is fair.

Starting Proceedings If Needed

We can advise you on what steps you need to take to protect your legal rights.

Sometimes employees are placed on performance management plans unlawfully, such as in circumstances where it is a breach of the general protections provisions of the Fair Work Act 2009.

We can commence proceedings on your behalf if you are terminated or while you are still employed.

We often lodge the following claims in circumstances where our clients have been performance managed:

  • Unfair dismissal claims;
  • Unlawful termination claims;
  • General protections claims.