Worker fired for 'unsatisfactory performance' argues he did not underperform

A worker recently filed an unfair dismissal claim against his employer over an unsatisfactory performance review and an alleged flawed notification process.

The worker, Syed Rizvi, was employed by Salini Australia Pty Ltd (Respondent) from 7 June 2021 until he was dismissed on 27 January 2023 on grounds of unsatisfactory performance.

He filed an application before the Fair Work Commission (FWC), claiming that he was unfairly dismissed. He said that he did not underperform, that the many aspects of the procurement process he was held accountable for were outside his control, that his workload was excessive, and that the performance improvement process (PIP) he was subjected to was unfair.

On the other hand, the employer said he was dismissed due to poor performance following a PIP and a warning being issued to him.

Worker rejects performance improvement process

The worker, previously employed as a procurement officer on the Snowy Hydro 2.0 Project, had responsibilities at the Lobs Hole construction site, following up on purchase orders and coordinating with operational staff.

Issues arose when performance expectations were set, leading to a performance review resulting in a below-expectations rating.

A PIP was implemented, outlining concerns such as slow task completion, lack of initiative, frequent breaks, and punctuality issues.

The worker refused to sign the PIP but attended weekly meetings to discuss progress. Despite efforts, the worker received a written warning and, ultimately, termination after failing to meet PIP requirements.

In his defence, the worker highlighted challenges, lack of training, and unreasonable workload expectations. He also accused the employer's procurement manager of having an intimidating management style.

The worker further argued that the termination was sudden and followed the issuance of a warning within a short timeframe. Former employees attested to a toxic workplace culture, blaming the said procurement manager.

Meanwhile, the employer argued that the dismissal was justified due to consistently poor performance, with the worker failing to follow up on purchase orders, provide feedback, and adhere to work schedules.

Opportunity to respond to performance review

"An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person," the FWC said.

"Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern."

"This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality,” it added.

"The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to [the worker] before his dismissal was effected."

What is a valid warning?

According to the FWC, a warning must clearly identify:

• the areas of deficiency in the employee’s performance;
• the assistance or training that might be provided;
• the standards required; and
• a reasonable timeframe within which the employee is required to meet such standards.

The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”

“There is no doubt, based on the evidence set out earlier, that the [worker] was warned about this performance and that the matters set out in this subsection were met,” the FWC said.

While there was a short period of time between the issuing of the warning letter issued on 17 January and the [worker's] dismissal on 27 January, the Commission said that it was satisfied "that the prior events in terms of the PIP meant that the contents of the warning letter could not have come as a surprise to the [worker."

"It ought to have been a relatively straightforward matter to immediately address at least some of the concerns, such as punctuality and notification to his manager if he was absent," it added.

Thus, the FWC said that there was no unfair or unjust dismissal. The worker's application was dismissed.