ERA explains what employers need to do when managing underperformance
The Employment Relations Authority (ERA) recently dealt with a case involving allegations of unjustified dismissal and disadvantage in a workplace setting.
The case highlighted several key employment law issues including performance management processes, handling of bullying complaints, and procedural fairness in dismissals.
A worker claimed that he faced multiple disadvantages in his employment, including not being consulted about changes to his reporting structure, experiencing bullying from his manager, and being placed on an unjustified Performance Improvement Plan (PIP).
He further argued that his eventual dismissal was unjustified and that the PIP was merely a vehicle to remove him from the workplace.
The employer strongly denied these allegations, maintaining that they had followed proper processes throughout the employment relationship. They also argued that some of the worker's complaints were raised well outside the statutory time limit for personal grievances.
The worker began employment with the University of Canterbury in June 2017 as an electronics and software design technician. The role required providing specialist electronics and software support to meet department needs, with the worker initially reporting to a technical services manager.
In July 2019, a senior technician's role was re-evaluated and re-banded to electronics manager, following internal university processes. By August 2021, reporting lines changed so the worker reported directly to this newly appointed electronics manager.
The working relationship was initially positive, though disagreements emerged around the worker's preference to purchase pre-built electronics rather than build hardware in-house. The university preferred building hardware because purchased items were often "not tailored to the requirements of the students, or was too costly."
In July 2022, the worker lodged a formal complaint about the electronics manager's behaviour. A university professor tasked with reviewing the complaint noted a "lack of specificity in the examples and details provided."
During a meeting about the complaint, the worker was "unable to provide sufficient specific examples to substantiate his claim of inappropriate behaviour." He also requested the electronics manager not be informed of the complaint, which complicated resolution efforts.
The university engaged a law firm to review the complaint, which concluded the examples provided were "unlikely to establish a breach or would amount to bullying or harassment." The worker then requested mediation, which occurred in October 2022.
By March 2023, formal performance concerns led to a proposed Performance Improvement Plan. The university appointed another engineer to oversee the PIP, as he had appropriate technical knowledge and was considered "a perfect choice given his level of technical knowledge and calm demeanour."
The PIP outlined five concerns: not adhering to priority work, not achieving milestones within reasonable timeframes, submitting poor quality work, failing to provide progress updates, and being uncontactable during work hours.
The PIP implementation letter clearly stated: "It is important that you understand, if your performance does not improve, it may be necessary to hold a Disciplinary Meeting where disciplinary action may follow."
The engineer overseeing the PIP met with the worker daily, sometimes up to 10 times per day. However, performance issues persisted. During the first month, only 10 of 29 assigned tasks were completed.
After three formal review meetings, the worker received a first written warning followed later by a final written warning. The PIP was extended from 12 to 23 weeks to provide additional improvement opportunity.
The university's executive director eventually took over as dismissal became a possible outcome. In the termination letter, he explained: "I have considered alternatives to dismissal including reinstating the Performance Improvement Plan to give you further opportunity to lift your performance to the required standard. However, I am confident that [the worker] has been provided with sufficient time and support to improve [the worker's] performance to the required standard having already extended the PIP from 12 weeks to 23 weeks in duration."
The ERA found the complaints about the manager's appointment and reporting line changes were raised outside the statutory 90-day time limit without exceptional circumstances to justify late consideration.
The bullying claims were dismissed, with the ERA finding the university had "responded to [the worker's] complaint by investigating and trying to address it." They noted the university had been "responsive to [the worker's] concern about reporting to [the electronics manager] and put a temporary reporting line in place."
The worker argued the PIP was "a foregone conclusion" because the university "did not want to continue employing him and the PIP was a vehicle aimed at achieving that purpose." The ERA rejected this view.
For the PIP complaint, the ERA determined the university had "acted fairly and reasonably in the PIP process," citing comprehensive documentation, regular meetings, extension of timeframes, and provision of technical support.
In its conclusion, the ERA stated: "I find that [the university] acted as a fair and reasonable employer. It followed a fair and reasonable process during the PIP, and [the worker's] performance not having improved to the required standard, only dismissed after following a fair and reasonable disciplinary process throughout which [the worker] was represented by the [union]."
The ERA affirmed that "a fair and reasonable employer will consider alternatives to dismissal," confirming the executive director had considered this before determining it wasn't viable given the extended opportunity already provided. All claims were rejected.
