You have someone on your team who isn’t performing, and you’re trying to work out what to do next. Before you go anywhere near a formal process, stop and ask yourself some honest questions first.
Have you given this person clear expectations about what the role actually requires? Have you provided regular feedback, both on what they’re doing well and what needs to improve? Have you built a relationship where they feel comfortable raising questions or concerns with you? Have you given them the training, information and resources they need to do the job well? And have you approached the situation with genuine curiosity, seeking to understand what’s going on before jumping to conclusions?
If you can honestly answer yes to all of those, then you’re in a position to have a more formal performance conversation. If you can’t, start there.
What the law requires
Before you take any formal steps, you need to understand your obligations under the Fair Work Act 2009. If the situation ultimately leads to termination, and the employee has passed their minimum employment period, you’ll need to demonstrate that the dismissal wasn’t harsh, unjust or unreasonable.
The minimum employment period is six months for businesses with 15 or more employees, and 12 months for businesses with fewer than 15 employees. Once an employee passes that period, they have access to the unfair dismissal jurisdiction.
The Fair Work Act sets out exactly what the Commission weighs up. Was there a valid reason for the dismissal? Did the employee know what that reason was? Did they get a genuine chance to respond? Were they warned before any decision was made? And were they allowed to bring a support person to any relevant discussions?
It’s also worth knowing the risk of adverse action claims under the Fair Work Act 2009 (Cth). Adverse action occurs when an employer takes action against an employee, including dismissal, demotion or changing their role in a way that disadvantages them, because the employee has exercised a workplace right, such as making a complaint, taking leave, or raising a concern. Even where performance issues are genuine, the timing and manner of how you manage them matters. If formal action follows closely after an employee has raised a concern or accessed a workplace entitlement, you can find yourself defending an adverse action claim even where the performance concerns are legitimate. If you’re unsure about the timing or context of what you’re dealing with, take advice before proceeding.
What to do in practice
Start by inviting the employee to a meeting. Give them 24 to 48 hours notice, and make clear they’re welcome to bring a support person. I recommend inviting them verbally first, then following up in writing. Keep it straightforward: let them know you want to discuss some performance observations and give them the opportunity to respond.
In the meeting, outline your observations clearly and use specific examples where you have them. Then let the employee respond. Listen to what they say. When they’ve had their opportunity to speak, close the meeting so you can take some time to consider what you’ve heard.
Come back to the employee later that day or first thing the following morning. Tell them your assessment and what happens next. The outcome will depend on the situation, ranging from a coaching conversation through to a formal warning, or in serious misconduct situations, potentially termination. If you’re considering immediate termination for serious misconduct, take HR advice before you act.
Whatever the outcome, be direct with the employee about what’s required going forward. Work together on a plan that actually gives them a chance to succeed. What do they need? Is there further training? Is there someone who can support them day to day? Set a follow-up date, usually somewhere between two and four weeks, to review progress.
If there’s no meaningful improvement, you may be looking at a further warning or, ultimately, termination. But the process only works if it’s genuine. Performance management isn’t a procedural box you tick before making a decision you’ve already reached. The goal is to give the person a real opportunity to turn things around. If they don’t, you’ll have a clear record that shows you did everything reasonably expected of you as an employer.
A final note
Most of the unfair dismissal cases that end up before the Fair Work Commission fall into one of two categories: employers who waited too long and had no documented record, or employers who moved quickly without giving the employee a genuine chance. Both are avoidable.
If you’re dealing with a performance situation and you’re not sure how to handle it, or when to escalate, get in touch and we can talk through where things are at.