Performance Management
We’ve advised many employees who are being performance managed, have had allegations of poor performance made against them, or have been placed on a formal performance improvement plan (a PIP). Here is what a fair process looks like and how to protect yourself.
We understand that being on a performance management plan causes uncertainty, worry and stress. We also find that businesses sometimes use performance management for the wrong reasons: not because the employee has genuine performance problems, but as a path to an exit, or in response to something the employee did, such as making a complaint. That can be unlawful. We have helped many clients resolve performance management issues. We can help by:
- advising you on the steps to take to protect your rights;
- helping you respond to the concerns and complete the plan successfully, so the performance management ends; and
- putting you back in control by enforcing your rights, which can reduce the anxiety that performance management often brings.
What Is Performance Management?
Performance management is a process for telling an employee that their work is not meeting the required standard and giving them a genuine opportunity, with support, to improve. It can be informal, through feedback and conversations, or formal, usually through a written performance improvement plan (a PIP) with regular check-ins.
A fair PIP usually has these features:
- Specific concerns, with examples, not general criticism such as “attitude” or “not a team player”.
- Clear, measurable standards that are realistic for your role, your hours and the resources you have.
- Support: training, resources, supervision or adjustments that give you a real chance to meet the standards.
- A reasonable timeframe to improve (see below), with regular meetings and written feedback.
- Honesty about the stakes: if your job is at risk, you should be told so.
- An open mind: the outcome is not decided before the plan begins.
Check whether your employer has a performance management policy. If the business is departing from its own policy, raise that with management in writing.
If your performance has been affected by illness, injury, disability, or family or caring responsibilities, tell your employer. It may need to consider reasonable adjustments, and taking action against you because of those matters can be discrimination or a breach of the general protections.
Do I Have The Right To Say No To Being Performance Managed?
Generally, no. You must follow your employer’s lawful and reasonable directions, and taking part in a reasonable performance process is usually one of them. Refusing can itself lead to disciplinary action.
There are limited situations where you can object, for example if you are being asked to do something unlawful or manifestly unreasonable. Do that carefully and with advice. If you believe the plan was started because you made a complaint or inquiry about your employment, took leave, or because of a protected attribute such as a disability, pregnancy or your age, it may be adverse action for a prohibited reason. You may then be able to bring a general protections claim even while you are still employed. Get advice before taking any such step.
You can put your view in writing. If you disagree with the concerns, say so politely and specifically, and give examples. That record matters later.
How Long Does Performance Management Last?
There is no fixed period set by law. What is reasonable depends on the role, the kind of problem, how complex the work is, and how long it takes to show improvement. A period that is too short to show real improvement, or targets that could never realistically be met, suggest the plan was not a genuine chance to improve.
In our experience, formal plans most often last between 3 and 6 months, with review meetings along the way, although some are shorter or longer. Smaller employers tend to run shorter, less formal processes; larger employers usually have longer, more structured ones. Check your employer’s policies to see what they say about performance management and how long it lasts.
Do I Need To Work To Address The Issue?
Yes. Act reasonably and make a genuine effort to address the concerns. If you are unsure what the concerns are, or they are vague, ask in writing for specific examples and clear expectations. Keep your own record of the work you do, the feedback you receive and any support that was promised but not provided.
Even if you believe you are being performance managed for an ulterior motive, the best approach is usually to respond reasonably to every issue raised and get advice on your strategy. If you are placed on a plan with no reasonable basis, get legal advice early.
Can My Employment Be Terminated If I Don’t Pass The Performance Management Plan?
Yes, it can. But if you are covered by the unfair dismissal laws, the Fair Work Commission looks at whether there was a valid reason, whether you were told the reason and given a real opportunity to respond, and, for a performance dismissal, whether you had been warned about the unsatisfactory performance before the dismissal (s 387 of the Fair Work Act 2009 (Cth)). A general encouragement to improve is not a warning. The warning should identify the specific concern and make clear your job is at risk if it is not fixed.
You may have an unfair dismissal claim if, for example, you were not warned, were not given a reasonable opportunity or support to improve, or the criticism of your performance was wrong. You may have a general protections claim if you were put on the plan, and then dismissed, because you exercised a workplace right or for another prohibited reason. If you are dismissed, you have 21 days to lodge a claim (28 days for an unfair dismissal claim in the WA state system; see our WA state system guide).
Dismissal is not the only outcome. Alternatives include an extension of the plan, further training, a transfer, redeployment or, in some cases, a different role. Termination is generally treated as a last resort.
Ghost-Write Documents On Your Behalf
We can prepare documents that respond to the alleged performance problems. We can ghost-write them, which means we prepare them and you send them to your employer. Your employer will not know you are receiving legal advice, because our name does not appear on them.
Negotiating For You
We can help you negotiate with your employer for a transfer to another team or redeployment elsewhere in the business. If needed, we can advise and represent you in negotiating a mutual separation, which may involve you resigning in exchange for a payment. We prepare the settlement documents to protect your rights and advise you on what a fair amount would be.
Starting Proceedings If Needed
We can advise you on the steps to protect your legal rights. Sometimes employees are placed on performance management plans unlawfully, for example in breach of the general protections in the Fair Work Act. We can start proceedings for you while you are still employed or after you are dismissed. Claims we commonly bring for clients who have been performance managed include:
- unfair dismissal claims;
- general protections claims, including claims not involving dismissal; and
- unlawful termination claims (for employees outside the national system).