Employee questions dismissal over underperformance report

The Fair Work Commission (FWC) has ruled over an unfair dismissal claim that questioned the underperformance report that brought about an employee’s termination. The report contained allegations of "bullying " incidents during the process.

The employee was a quality and safety data officer at one of the public health services in the Australian Capital Territory. He was dismissed for underperformance but he argued that aspects of the underperformance process were “unreasonable” and the decision to dismiss him was “unfair both procedurally and substantively”.

The dispute started when the manager asked the employee to discuss his performance. She sent an email directing the employee to attend a meeting with her and a representative from people and culture.

The manager’s email referred to “continuing concerns” regarding his performance, which had been raised in an informal capacity and noted that his work was “below the expected standard”.

Following the meeting, the manager issued a “performance record” in a letter to the employee with concerns relating to “missing deadlines, his quality of work, delayed outputs, not appropriately reporting leave and inability to locate reports”.

The employee responded and disagreed with “almost all the performance issues raised”. According to records, the manager continued to monitor his performance but “did not see any improvement”.

Later, the manager initiated an underperformance process with an action plan to improve. The action plan had four key goals: improved communication; meeting deadlines; managing work requests and workloads; and quality of work.

After the action plan, the manager concluded that he had “not adequately maintained the required performance standard during the action plan period”.

The employee then took unplanned leave and met with senior management and alleged bullying from the underperformance process. He alleged that “the process itself has been exploited to facilitate bullying” and has been “engineered to push [him] out of the workplace”.

While still on personal leave, the employer’s chief operation officer informed the employee that his employment would be terminated due to his unsatisfactory work.

Before the FWC, the employee claimed unfair dismissal but the employer said “the processes and steps leading to the dismissal were abundantly transparent and fair”.

The employer added that dismissal was “proportionate” since the employee was “unwilling to recognise and remedy the deficiencies and shortcomings in his performance”.

The FWC ruled that the employee had not demonstrated “consistent, satisfactory performance” and was a valid reason for dismissal.

In its decision, it said the employer “had genuine concerns” with his performance, stating said concerns were “valid to raise with an employee and expect to have rectified.”

Thus, the FWC said there was no unfair dismissal. The decision was handed down on 01 February.