Performance Management
At MV Law, we understand that employees can be both the greatest asset and the biggest challenge for any business. While positive employee relations drive success, having clear, effective policies and processes for conduct, performance management, and termination is essential to maintaining that success and fostering strong workplace relationships. Conversely, inadequate performance management and termination practices can lead to disputes, increased absenteeism, low morale, and even costly legal claims.
Our focus at MV Law is to help you prevent workplace conflict and promote productive relationships by developing tailored performance management and termination policies that suit your business needs. When disputes do arise, our experienced employment lawyers are skilled in managing and resolving complex matters and associated claims efficiently and effectively.
We also provide guidance to ensure your workplace standards of conduct are clearly defined, communicated, and consistently enforced. We help you foster a culture where expected behaviours are modelled and upheld at every level of your organisation.
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How do we manage poor performance before considering termination?
Performance management refers to the systematic process through which employers set and clarify expectations for employees, guide and review their work performance, develop capability, recognise achievements, improve performance, and, where necessary, resolve unsatisfactory performance.
In most cases, employers managing underperforming employees in Australia must adhere to both legal requirements and best practice processes to ensure procedural fairness, minimise risk of unfair dismissal claims, and support fair workplace outcomes. This requires the employer to promptly raise concerns with the employee, issue specific, written warnings reiterating the deficiencies, the steps required for improvement, the support offered, and a reasonable timeframe for improvement, give the employee a genuine chance to respond and improve, and actively monitor performance.
Not always. Some forms of misconduct, known as serious misconduct, can justify dismissal without notice. If misconduct does not meet the high threshold of serious misconduct, the employee should warn the employee and give them an opportunity to improve.
A PIP plan should set out clear, achievable standards and objectives, how performance will be measured, the duration of the plan, review intervals, available support and the consequences of failing to achieve set targets, including possible disciplinary action or dismissal.
There is no strict statutory requirement in Australia prescribing the exact duration of a Performance Improvement Plan (PIP) for underperforming employees. However, both procedural fairness and best practice principles require that the duration of a PIP be reasonable, taking into account industry standards, the nature of the employee’s role, and what is necessary to provide a genuine opportunity for improvement before any disciplinary action, including dismissal, is considered.
If an employee does not improve after being provided a proper opportunity to do so via a procedurally fair process, the employer may terminate the employee’s employment.
Yes, poor performance in a workplace governed by the Fair Work Act 2009 (Cth) can justify dismissal if specific legal requirements are met to ensure the fairness of the dismissal process.
There are many things that can go wrong in a performance management process, and an employment lawyer can advise the employer about the employee’s rights and responsibilities and the proper process for managing their performance. This is why, if possible, employers should seek advice as early as possible in an underperformance process.
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