6 steps to help avoid an unfair dismissal claim


It goes without saying that an unfair dismissal claim is costly and time consuming, not to mention the effect it may have on other staff and the organisation’s reputation. Here are six ways to help manage an underperforming employee.

1. Clearly define the performance issues

Identify the issues in terms that can be objectively proven. For example, you might think an employee has an ‘attitude problem’, but what does that really mean? The issues need to be referenced against key requirements of the employee’s job. For example, is the employee with an attitude problem failing to meet a key job requirement to effectively communicate with staff, clients and suppliers? Can you prove this by citing specific incidents?

2. External contributing factors

Identify possible reasons for underperformance such as workplace bullying, poor mental health or inadequate support and take these into account in developing the appropriate response.

3. Protected attributes or activities

The Fair Work Act’s general protections scheme and anti-discrimination laws protect an employee from being disciplined for a number of reasons including poor health, industrial activities or because of raising employment queries or complaints. Consider whether your performance issue relates to these protected areas and quarantine the performance reason as much as possible. For example, if poor mental health is contributing to underperformance, think about reasonable measures to overcome this incapacity.

4. Developing a performance improvement plan

A fair and reasonable performance improvement plan clearly sets out what has to be achieved and how achievement will be measured and demonstrated. It also gives an employee enough time and support for it to be achieved. It should warn the employee of disciplinary consequences, including possible dismissal, if not achieved. The plan should be developed after consulting with the employee (a support person is not essential for this discussion but don’t deny a request to have one). The plan needs to be genuine – the Fair Work Commission is very good at identifying a ‘tick and flick’ process.

5. Responding to unsatisfactory progress

If the employee fails to meet the plan, you need to be able prove this. If considering dismissal, you need to tell the employee this and ask them to meet with you to discuss the situation (and give the employee the option of having a support person present). You need to explain why you believe the plan is not being met and refer to evidence to support your assertion. Indicate that you believe this provides grounds for dismissal. Ask the employee to respond and consider their response before making a final decision.

6. Is dismissal a proportionate response?

Dismissal for justifiable reason, after adopting a fair and reasonable process, may still be ruled unfair by the Commission if it’s considered harsh. You should be able to show that you considered alternative options, such as a further warning or extension of the performance improvement plan, and be able to justify why you didn’t think this was appropriate.

This article is part of a four-part series on constructive dismissal. Keep reading about constructive dismissalmanaging misconduct and bullying

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6 steps to help avoid an unfair dismissal claim


It goes without saying that an unfair dismissal claim is costly and time consuming, not to mention the effect it may have on other staff and the organisation’s reputation. Here are six ways to help manage an underperforming employee.

1. Clearly define the performance issues

Identify the issues in terms that can be objectively proven. For example, you might think an employee has an ‘attitude problem’, but what does that really mean? The issues need to be referenced against key requirements of the employee’s job. For example, is the employee with an attitude problem failing to meet a key job requirement to effectively communicate with staff, clients and suppliers? Can you prove this by citing specific incidents?

2. External contributing factors

Identify possible reasons for underperformance such as workplace bullying, poor mental health or inadequate support and take these into account in developing the appropriate response.

3. Protected attributes or activities

The Fair Work Act’s general protections scheme and anti-discrimination laws protect an employee from being disciplined for a number of reasons including poor health, industrial activities or because of raising employment queries or complaints. Consider whether your performance issue relates to these protected areas and quarantine the performance reason as much as possible. For example, if poor mental health is contributing to underperformance, think about reasonable measures to overcome this incapacity.

4. Developing a performance improvement plan

A fair and reasonable performance improvement plan clearly sets out what has to be achieved and how achievement will be measured and demonstrated. It also gives an employee enough time and support for it to be achieved. It should warn the employee of disciplinary consequences, including possible dismissal, if not achieved. The plan should be developed after consulting with the employee (a support person is not essential for this discussion but don’t deny a request to have one). The plan needs to be genuine – the Fair Work Commission is very good at identifying a ‘tick and flick’ process.

5. Responding to unsatisfactory progress

If the employee fails to meet the plan, you need to be able prove this. If considering dismissal, you need to tell the employee this and ask them to meet with you to discuss the situation (and give the employee the option of having a support person present). You need to explain why you believe the plan is not being met and refer to evidence to support your assertion. Indicate that you believe this provides grounds for dismissal. Ask the employee to respond and consider their response before making a final decision.

6. Is dismissal a proportionate response?

Dismissal for justifiable reason, after adopting a fair and reasonable process, may still be ruled unfair by the Commission if it’s considered harsh. You should be able to show that you considered alternative options, such as a further warning or extension of the performance improvement plan, and be able to justify why you didn’t think this was appropriate.

This article is part of a four-part series on constructive dismissal. Keep reading about constructive dismissalmanaging misconduct and bullying

Leave a reply

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More on HRM