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Presenters
2
Joe Murphy
Director
Nigel Ward
CEO + Director
3. Agenda
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Fundamentals
1. Types of performance
management
2. Systemic performance
management cycle
3. Ad Hoc performance
management
4. Why employees
underperform
5. Alignment on acceptable
behaviour
6. Performance process
7. Counselling basics
Termination/Unfair Dismissals
1. Termination
2. Making a decision to terminate
3. Unfair Dismissal (who is in)
4. Unfair Dismissal (who is out)
5. Genuine Redundancy
6. Small Business Process
7. General Process
8. Remedies
9. FWC Test
10.FWC Consideration
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Types of performance
management
1. Systemic performance management systems
2. Ad-hoc positive feedback
3. Reactive performance management for general
underperformance or arising from a specific serious
incident
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Systemic performance
management cycle
On-Going
Dialogue –
“Delivery on
Promise”
Review
Performance to
Objectives (Values
and Outcomes)
Review Feeds
into
Remuneration
Process
Review Feeds
into
Development
Process
Setting Objectives
(Values and
Outcomes)
1. How simple can it
be?
2. The “conversation”
is more important
than anything else!
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Ad-hoc positive feedback
• Specific: Talk very specifically about what you saw the
person do. General motivational clichés like “good team
player” will have a lukewarm effect
• Immediate: Obviously praising someone for something
he/she did nearly a year ago is a waste of time because the
best acknowledgment is immediate - “Catch” someone in
the act of doing well and compliment the behaviour on the
spot
• Personal: Use the person’s name and express your own
appreciation for the job well done (how you feel)
• Spontaneous: Never script compliments or they won’t
sound authentic
6 Week Rule
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Why do people underperform?
Bad Egg
Theory rarely
applies
• Unclear direction
• A lack of training
• Lack of information provided to
the employee
• What the employee sees as a lack
of ‘fairness’ in the way the
management deals with them
• A ‘personality clash’
• Boredom
• Overwork and tension
• Lack of Motivation
• Workplace culture
8. Alignment – setting standards
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You must be on the same page - have a coherent
understanding of what is acceptable and what is not
acceptable in the workplace
9. Grading Behaviour
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Serious & Wilful Misconduct
Serious Misconduct
Misconduct
Unacceptable performance
Under performance
Silly stuff
Summary
Dismissal
Formal
Counselling
A Chat
(+ a Diary
Note)
Situation + Context
10. Process
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Situation + Context
Establish
the Facts
Put facts
and
position to
employee
Allow
employee
an
opportunity
to respond
Consider
response
and explain
company
view about
it
Explain
what action
you are
taking
Implement
action
Employee not
required for work
but remaining on
pay
Support person
Performance
Improvement Plan
Investigate
11. General Sequence of Warnings
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1. Verbal warning
2. First written warning
3. Final written warning
4. Show cause meeting
5. Dismissal
6. This sequence will vary according to the gravity
of the conduct, the person’s employment
history and their personal circumstances
12. Formal Counselling – Written
Warnings
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1. State the problem/issue
2. Detail the corrective action required
3. Warn of the intended action if the employee
does not correct his or her behaviour
4. Refer to previous warnings
5. Decide date to review performance
6. Signed and dated by manager and employee
7. Retained by manager and copy provided to
employee
13. Termination of employment
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Redundancy
Abandonment
of
employment
Resignation
Termination on
Notice
Constructive
dismissal
Summary
dismissal
Termination
of
Employment
Employee initiated
Employer initiated
14. Making a decision to terminate
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Making a decision to terminate employment is a
serious matter.
In making a decision you need to consider two
questions:
• Is there a valid reason for the termination
• If there is, are there any mitigating
circumstances that should impact your
decision
15. Legal Risks – Unfair dismissals
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Small business (<
15) SBFD Code no
compliance
Service > 12
months
Award Covered
Service > 6 months
Agreement
Covered
Service > 6 months
Earning < $138,900
Service > 6 months
Service > 12
months SB
WHO IS
INCLUDED? Forced to resign
No Genuine
Redundancy
16. Legal Risks – Unfair dismissals
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< 12 months
employment
Small business
employer (< 15)
< 6 months
employment
Employer > 15
Some casuals, fixed
term, specified task,
seasonal
Genuine Redundancy
Outside lodgement
requirement
i.e. > 21 days
unless exceptional
circumstances
Non-award/agreement
> $138,900
WHO IS
EXCLUDED?
Voluntary
resignation
17. Genuine Redundancy
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Redundancy
exemption
Only applies if
• Employer no longer
requires job to be
performed by anyone
• Compliance with EA /
award consultation
obligations
• No reasonable
redeployment available
within employer business
or related company
18. Unfair dismissal small business
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Claim is filed within 21
days of dismissal with
FWA
Employer to respond
with Small Business
Jurisdictional objection
Conciliation optional
(by telephone)
Arbitration on
jurisdiction
19. Unfair dismissal claim process
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Claim is filed within 21
days of dismissal with
FWC
Employer to respond
Conciliation
(by telephone)
Arbitration
20. Remedies for unfair dismissal
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Re-instatement/re-
employment with back pay
Re-instatement or
Re-employment
Compensation – up to
26 weeks pay
REMEDIES
Note: costs may be ordered if claim made vexatiously, or without reasonable cause
or had no reasonable prospect of success
21. The test for whether a dismissal
is unfair
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Was the termination:
“harsh, unjust or unreasonable”?
Section 387 Fair Work Act 2009 (Cth)
22. Issues FWC Considers
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1. Substantive fairness – need ‘valid’ reason:
• based on conduct or performance
• must be sound, defensible and based on fact – not
capricious, fanciful or spiteful
2. Procedural fairness - a consideration of ‘due process’:
• what steps were taken prior to dismissal?
• was natural justice afforded?
3. Employee’s personal circumstances:
• Length of tenure, age, prospects of reemployment, family
situation
23. Other risks
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1. Fair Work Commission - Anti-Bullying
Application
• Unreasonable performance management
2. Fair Work Commission - General Protections
Application
• Action alleged to be taken because of
discriminatory ground
• Action alleged to be taken because of
workplace right
25. Contact us
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NEWCASTLE
Suite 402, Level 4
Watt St Commercial Centre
Newcastle NSW 2300
Phone : 02 9458 7005
www.ablawyers.com.au
BRISBANE
10 Felix St
Brisbane QLD 4000
Phone : 02 9458 7005
www.ablawyers.com.au
Nigel Ward,
CEO + Director
Nigel.ward@ablawyers.com.au
Joe Murphy,
Director
Joe.murphy@ablawyers.com.au
SYDNEY
10/140 Arthur St,
North Sydney
NSW 2060
Phone : 02 9458 7005
www.ablawyers.com.au
