Can you fire a worker who was put on a performance management plan?

The Fair Work Commission (FWC) dealt with a case of a worker who argued he was unfairly dismissed from work after undergoing a performance improvement plan. In its defence, the employer argued that the worker resigned on his own, so there was no unfair dismissal.

The worker was employed as an administrative officer at a hospital from 28 August 2017 to 10 May 2023. Around November 2022, the employer placed the worker on a performance improvement plan concerning the use of appropriate templates and improving the level of service provided to patients.

After a while, a second performance improvement plan was executed relating to data entry and the proper and safe use of equipment.

Several months later, when the patient services manager explained to the worker that she had continuing issues regarding the worker’s performance, the latter responded by saying that he did not want to be “performance-managed.”

The manager insisted that she and the worker meet the following day. However, the worker emailed the manager saying he was leaving work because he was feeling unwell.

He further sent an email that day stating, “This email will letting you know that work place stress is affected me in a way that my medical condition is getting serious. They are pushing to a point where I have to resign due to present culture.”

Several meetings occurred about the worker’s performance management plan and, ultimately, the worker advised that he would not be entering the plan and that he was resigning.

The employer contended that, while it raised the prospect of resignation with the worker, it was not an ultimatum but a possible consequence of his failing to improve his performance.

It further noted that the company genuinely wanted to resolve the issues regarding the worker. Hence, it put the worker under a performance management plan.

However, despite such claims, the worker asserted that he was forced to resign from his employment due to “unavoidable circumstances, pressures, and stressful environment.”

Ultimately, the Commission was satisfied that the worker was not dismissed nor forced to resign from his employment.

“Faced with the possibility of further performance management, [the worker] made a choice: not to participate in that process and instead to bring the employment relationship to an end,” the FWC said.

Moreover, the intent of the employer to place the worker on a performance management plan was of good intention, according to the Commission.

It also said there was no evidence to establish that the company had formed any intention to bring the worker’s employment to an end.

“Resignation was not the only choice available to [the worker],” the FWC stated. “He could have chosen to remain in employment and participate in the performance management plan. He could have met the performance concerns and had them resolved, just as he had done in connection with the first performance improvement plan.”