The Workplace Coach

You might be thinking that if you can show there’s been a history of underperformance, and that you’ve addressed it with the employee and there’s been no improvement, then you might be justified in terminating their employment. You would probably be right however if you want to avoid being hauled in front of the Fair Work Commission for unfair dismissal there are a few additional things you might want to think about.

In a recent Fair Work Commission decision regarding an application for unfair dismissal, 17 May 2024, JF Camenzuli vs Companion Systems Pty Ltd , Commissioner Hunt was very clear that an employee being dismissed for unsatisfactory performance must be given a warning, and that it is not a warning at law unless it satisfies the following:

“… The purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement.

An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.”

This essentially provides a procedural guide that outlines the necessary steps to go from managing the unsatisfactory performance to a dismissal. Simply put, an employer must ensure and be able to demonstrate that:

1. the employee clearly understood where their job performance was not meeting the necessary standards;
2. the employee was offered the necessary assistance, training or support to remedy the situation;
3. the employee was provided with a reasonable period of time to achieve and sustain the necessary standard of performance; and
4. the employee was very clear that failure to achieve and sustain the necessary standard of performance could put their employment at risk.

The full decision makes a very interesting read (if you are into that sort of thing). Spoiler alert, the Commissioner found in favour of the applicant and determined that the dismissal was unfair. The applicant was awarded a significant financial compensation.

If you are working through any performance or conduct matters and need some expert advice, just drop us a line here at The Workplace Coach.