Worker resists performance improvement plan, calls it 'unnecessary, unlawful'

The Fair Work Commission (FWC) recently dealt with a case involving an unfair dismissal claim by a worker against her employer, a major energy company. The dispute centered around the worker's refusal to participate in a performance improvement plan and follow other workplace directives.

At the heart of the matter was a clash between the employer's efforts to address workplace concerns and the worker's firm belief that these actions were unnecessary and unlawful.

The case highlights the delicate balance between an employer's right to manage performance and an employee's rights in the workplace.

Employee performance concerns

In late 2023, the employer received complaints about the worker's behaviour, describing it as rude and intimidating. There were also concerns about the worker ignoring directives to work from the office.

As a result, the network manager informed the worker in February 2024 that she would be placed on a one-month performance plan.

The plan required the worker to attend specific meetings, participate in online work meetings known as 'connections team chats', and work from the office on Tuesdays and Wednesdays during the plan period.

However, the worker responded by calling the company's letter "completely unnecessary and unlawful." She raised various complaints about the workplace and management, claiming the environment was unsafe and had caused mental health issues.

The worker also accused the network manager of trying to micromanage her and stated she would not attend any meetings with the manager or come to the office unless she deemed it safe.

The customer care manager later responded, stating that the workplace was considered safe and that there was no evidence to substantiate the worker's allegations against the network manager.

Performance plan implementation and resistance

Despite the worker's objections, the employer proceeded with the performance plan in March 2024. The customer care manager outlined specific requirements, including participation in team chats and office attendance on Tuesdays and Wednesdays. The worker was also informed that failure to comply with these directives could result in termination.

The employer's letter stated that if the worker was unable to comply with any aspect of the plan for medical reasons, she needed to provide information from her medical practitioner by 18 March 2024. This would allow the company to consider whether adjustments to the plan were needed.

The worker continued to resist, stating she disagreed with the plan and would not comply with directives she deemed unsafe or unreasonable. She also asserted that she was not required to provide any information about her health.

On 19 March, the worker attended the office but did not participate in the required team chats. She also failed to attend the office the following day as directed.

Dismissal and legal challenge

Following the worker's continued non-compliance, the employer asked her to show cause why she should not be dismissed. The worker maintained her position, refusing to agree to the performance plan and citing mental health concerns as a reason for non-participation in certain activities.

She also listed various grievances and complaints, including allegations of 'gaslighting' and 'victimisation'. On 27 March 2024, the employer terminated the worker's employment, citing her failure to comply with lawful and reasonable directions.

The termination letter stated that the company was accepting the worker's repudiation of her contract. Despite not being required to do so, the employer decided to pay the worker four weeks' pay, essentially as a payment in lieu of notice. The worker then filed an unfair dismissal claim with the Fair Work Commission.

Fair Work’s analysis and decision

The FWC considered the circumstances surrounding the dismissal, applying the criteria set out in section 387 of the Fair Work Act. While the Commission found that a dismissal had occurred, it ultimately determined that the termination was not unfair.

The Commission emphasised that there was a valid reason for the dismissal related to the worker's conduct:

"[The worker] refused to accept the company's performance plan, and refused to engage with its efforts to address the concerns it held about her behaviour. [The worker] also refused to follow other directions of the company that in my view were both lawful and reasonable."

Importantly, the FWC noted that the worker had not provided any medical evidence to support her claims that health issues prevented her from complying with the performance plan or workplace directives. The Commission stated:

"[The worker] was invited to provide the company, by 18 March 2024, with any medical evidence that might indicate that she could not comply with the performance plan for health reasons. She did not do so."

In assessing the fairness of the dismissal, the Commission observed:

"[The worker] subjectively believes that she has been wronged, but in my view, she has lost perspective. This is partly because she believes, as she said to [the employer], that she is not required to accept anybody else's perceptions. Yet she expects other people to accept hers."

The FWC concluded that the dismissal was neither harsh, unjust, nor unreasonable, emphasising the seriousness of the worker's conduct:

"[The worker] openly defied the directions of her employer, including its efforts to address concerns about her conduct. This was a valid reason for the company to dismiss her. It also constituted serious misconduct, because it was a breach of a fundamental term of the contract of employment."

This case serves as a reminder of the importance of complying with reasonable workplace directives and the potential consequences of failing to do so.