As published in CK Momentum Issue 4 (Click here to download)
Terminating employees for performance based issues can be difficult for employers to navigate at the best of times. An employer’s right to terminate because
of poor performance has not been helped by a number of myths that have taken hold in this area…
Take for example the hold in this area… “3 strikes and you’re out” rule which many employers follow believing it will protect them from unfair dismissal
claims. That is simply wrong, and slavish adherence to these “rules” often leads the employer to overstep the mark between a reasonable dismissal and
a dismissal that is harsh and unjust, and leaves the employer exposed.
In reality, there is no one “rule” to follow when dismissing employees, particularly where the dismissal is performance based. The process need only be
fair and reasonable in the circumstances of each particular case.
Employment and Industrial Relations Lawyer, Laura Gercken, provides the following tips to help minimise your risk of an unfair dismissal claim:
- Action incidents of poor performance with the employee by:
- IDENTIFYING each specific manifestation of poor performance;
- MEETING with the employee (and any support person requested by the employee to attend). Preferably, there should be 2 people from the employer
at that meeting;
- TELLING the employee the conduct or performance is not acceptable and that it will be monitored over a specific period of time (usually at
least 1 month);
- WARNING the matter is serious and that if performance is not improved, disciplinary action may follow, including termination of employment;
- ENSURING that the employee is given a WRITTEN STATEMENT (preferably under letterhead) setting out each of the performance issues discussed,
and remedial action the employee is expected to take; and
- MONITORING the employee's ongoing performance as the employee must be given an opportunity to improve their performance. This is critical in
any assessment of whether or not a dismissal is "harsh, unjust or unreasonable" for the purposes of an unfair dismissal claim.
- If there is no improvement in performance or further incidents occur, then you should again follow the procedure in respect of the ongoing issues and
any new issues that have occurred since the first meeting with the employee. Provide the employee with a further letter setting out each of the
matters discussed at the second meeting and give them an opportunity to respond to the issues raised and offer a suitable plan moving forward to
improve their performance.
- If the employee does not provide a suitable plan and you feel the employment relationship is no longer tenable, then you can terminate their employment.
Many variables can impact on the process, including:
- the seriousness of the performance issues and the consequences of the performance issues to both the employee and the employer (eg health and
- the nature of the business;
- the tasks performed by the employee within the business; and
- the length of time that the employee has been employed.
Importantly, don’t rush the process, as the time provided to employees to improve performance is often a critical factor when assessing whether or not
a dismissal is “harsh, unjust or unreasonable”. Getting the process right will minimise fall out and help you to withstand claims for reinstatement
or compensation of up to 6 months’ wages.
Needless to say, if in doubt seek advice.
ClarkeKann is a commercial law firm with offices in Brisbane and Sydney. Our expertise covers commercial & corporate transactions, employment & IR, financial services, litigation, risk management and insolvency, property transactions and resources projects, across a range of industries. For a full list of our legal services, please visit our website at www.clarkekann.com.au
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