‘So what are you telling me is that I’m damned if I do and damned if I don’t. That can’t be right?!’
‘Yep,’ I replied. ‘It is one of the great failings of the system. If you go through it step by step, and tell them about the issues, they may complain. But if you ‘skip to the end’ and don’t tell them, then you will be in trouble.’
‘I’m not saying that any complaint arising from the step by step approach will be accepted, but if they want to challenge what you are doing then that is what they will argue. It is the classic between a rock and a hard place situation. Damned if you do and damned if you don’t.’
‘Okay’ came the reply from the client. ‘Got it. Now which approach is likely to be the least damning.’
‘Now we’re talking’ I responded. ‘This is where I come in.’
The subject of the discussion was the age-old difficulty caused when conducting a performance management exercise with an employee who then alleges that there is little wrong with their performance and that they are being victimised. It is the ‘you are picking on me’ defence.
As any experienced HR manager or workplace lawyer will tell you, if an employee is the subject of performance management leading to the potential for their dismissal, the expectancy of the Fair Work Commission will be that they have been given adequate warnings and notice to enable them to improve pre-dismissal. Failure to provide such information will ordinarily result in the dismissal been found to be unfair.
While this is of course good practice, often as the reality of their failings starts to hit home, the employee sometimes comes out fighting. An employee will assert that the process and the issues that the employer is seeking to address amounts to bullying, nit-picking or inconsistent treatment. It is not performance management. Only harassment.
It can become further complicated if the employee asserts that the origin of this treatment is caused by an earlier workplace complaint or bullying. If the employee is able to demonstrate this, then the burden is on the employer to demonstrate that the subsequent process is not in response to that complaint.
A ‘workplace right’ is generally defined under the Fair Work Act 2009, and exists where a person:
- is entitled to a benefit or has a role or responsibility under a workplace law, workplace instrument (such as an award or agreement) or an order made by an industrial body;
- is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument;
and that person has the capacity under a workplace law to make a complaint or inquiry to a person or body to seek compliance with that workplace law or workplace instrument or if the person is an employee, in relation to their employment.
Therefore it is pretty wide. It is often very easy for an employee to point to such an issue and suggest this to be the cause of their performance management. Thus, the need for the employer to be satisfied that it is not.
Generally, as long as the performance management program that the employer follows complies with its own internal procedures and amounts to reasonable management action taken in a reasonable way, then the employee is unlikely to be successful in arguing that they are being victimised or even bullied. It doesn’t avoid the fight though.
Case law from the Fair Work Commission confirms that any reasonable management action taken does not have to be perfect, only lawful and rational. To determine this, the action must be subjected to ‘an objective assessment in the context of the circumstances and the knowledge of those involved at the time.’
Such action is not to be challenged on the basis that the employee believed it to be unreasonable or that a more reasonable course of action in retrospect could have been taken.
In my experience, it is about the employer being able to demonstrate why it behaved as it did in specific circumstances with the information available to it at that time. If the employer is able to do this, then a distinction can be drawn between any earlier workplace complaint and the subsequent management action.
When managing poor performance follow a few key steps to ensure that you are able to demonstrate the reasonableness of the action taken.
Begin by identifying where the employee’s performance is substandard. Be sure to be able to demonstrate this with examples or metrics. Where appropriate, point to the employer’s policies or standards to demonstrate the shortfall. These can also include job descriptions, earlier appraisals, agreed KPIs or even comparisons with the performance of colleagues in similar roles. Care is obviously required when using the latter.
Next, decide on what amounts to a reasonable period in which to improve. Set a realistic target. Time frames that are not realistic cannot subsequently be said to constitute reasonable management action.
At the same time give some thought as to how performance is to be monitored and measured going forward. Ensure that where possible the future assessment is kept objective. Subjective assessments will always run the risk of the employee complaining of inconsistent treatment or victimisation.
Finally, consider whether there are any additional risk factors that increase the likelihood of the complaint. Has there been an earlier workplace complaint of the type I discussed above? If so build into the process additional safeguards so as to enable the business to demonstrate the separation of the two issues.
Once these issues have been considered and properly thought through, then meet with the employee:
· follow the relevant company policies and procedures;
· explain clearly the deficiencies in the employee’s performance;
· back this up with evidence;
· set a reasonable time for improvement; and
· make the employee aware of what the consequences of failing to improve will be.
Invite the employee’s responses and explanations, and consider them. Properly consider them. A common mistake is to disregard any response without appreciating that it may offer a valid explanation for the performance issues or notice of circumstances which themselves may be covered by the general protections provisions within the Fair Work Act.
Also, consider what additional support may be required to assist the employee to improve.
Document the discussion and provide written confirmation of what was discussed. Whether this amounts to written warning will depend on upon the relevant internal policy and where the business is at within that policy.
Manage the process and ultimately take the action that is required. Employers who adopt this approach will usually be able to demonstrate that they took reasonable management action.
‘But what if the problem is simply that the employee doesn’t give a damn?’ my client asked.
‘Damn, that is a tricky one’ I replied. ‘Damned tricky.’