Employer actions to address performance issues reviewed in recent cases

1 – In Choi v Country Fire Authority [2013] FWC 469, the FWC needed to deal with a claim that the performance management process constituted bullying or unfair treatment of a CFA business analyst. The employee had been the subject of a number of informal meetings with her manager who advised she needed to improve her work performance. With no improvement detected, the manager then implemented a performance management plan to address performance and behaviour problems but this action met with employee claims of bullying. Commissioner Roe found the processes used by CFA were procedurally fair and the termination justified.

On the issue of the performance management process, the Commission held that while this would be stressful for the employee, this was compounded by her constant denial of problems and “failure to constructively engage” with the process. “Just because performance management is stressful does not make it inappropriate or unfair.”

2 – in Comcare v Martinez (No 2)[2013] FCA 439, Justice Robertson was called upon to assess if performance management of a manager constituted workplace bullying. Following a period of underperformance, the manager commenced weekly discussions, initially at the worker’s desk and then more formally and in a separate room. After some time, Ms Martinez went off work claiming psychological injury and bullying by her manager.

Robertson J. distinguished the actions of the manager in undertaking performance management to bullying, commenting “Feedback provided appropriately with the intention of assisting you to improve your work performance, behaviour, or directing and monitoring workflow, does not constitute bullying if it is conducted in line with approved processes.”

3 – in Hards v Town of Bassendean [2012] WAIRC 01106, the Western Australian IRC confirmed the dismissal of a local government employee who directed unacceptable and disrespectful emails to his line manager, then to the CEO and then to Councillors. Commissioner Jennifer Harrison found Hards had breached council’s Code of Conduct by intentionally deciding to use derogatory and disrespectful content and tone in emails sent to his line manager and then the CEO. She also found that by criticising the manner of the CEO’s investigation into his conduct and then passing this on to Councillors, Hards had been attempting to undermine and indirectly pressure the investigative process. In doing so, he had “destroyed the necessary trust and confidence required between an employee and employer.”


Action Required by employers 

The above cases, especially from the Federal Court, highlight that tribunals seem to be increasingly willing to both:

  • endorse the right of employers to use performance management to deal with sub standard performance or conduct; while,
  • closely and critically scrutinise employee allegations that performance management constitutes or is a direct causation factor to bullying.

While the cases still appear to place the onus on employers to prove managers are addressing performance/conduct issues with their staff in “a proper and reasonable way”, provided this standard can be achieved, the message should be that managers will be expected to identify and deal with staff having problems achieving acceptable levels of performance or behaviours.

Some suggested actions will include:

1. Review your performance managment policies to ensure they include:

–          Appropriate processes – to ensure procedural fairness and confidentiality

–          Identification processes – on how to fairly identify staff needing to be subject to PM processes;

–          Escalation procedures – when recurrent or unresolved performance or behaviour problems need to be raised to a higher level in your organisation.

2. Review the way managers are trained and briefed on performance management policies and procedures, with an emphasis on understanding what sub-standard performance or behaviour is and the importance of complying strictly with the required procedures.

3. Implement mentoring/coaching sessions with new or first line managers to assist them to experience what an effective performance management session can achieve (O’Connell provides such a service for Departments/Councils)


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