Performance management: Choose your moment wisely

A recent tribunal decision in Queensland highlights how important it is for employers to understand the dos and don’ts of performance management. In Ram v Yes Distribution Pty Ltd and Anor[1], the employer, an Optus reseller, required a sales employee to move to their Townsville store when forced to close their Cairns store for business reasons. The catch, however, was that during discussions with the employee about this relocation the employer chose to raise performance issues as part of the discussion. The employee subsequently claimed that she had been discriminated against on the basis of family responsibilities and that her family commitments prevented her making the move from Cairns to Townsville.

In the Queensland Civil and Administrative Tribunal, Member Dr Cullen found against the employee and dismissed her discrimination claim. She held that the employer had genuine business reasons for the restructure of its stores and that the request was not unreasonable despite the employee’s inability to move because of her family.

Avoid discrimination claims: Stay focused

Importantly, however, Member Cullen provided some useful and insightful observations about the conduct of the employer and the consequences of its actions. The employer, when discussing the restructure with the employee, should have limited the focus to one that was clearly based only on the relocation and the needs of the business. Member Cullen commented that by raising performance management, it “perhaps left Mrs Ram [the employee] with a feeling that she was being kicked on her way out the door.”[2] As a consequence of its actions, the employer had to defend itself against a discrimination claim.

The important message for employers here is that this type of claim potentially could have been avoided if the situation was handled differently. In this case, human resources style and management, or lack thereof, created a situation where the employee believed she was discriminated against.

Be constructive

Best practice performance management should be integrated as part of a broader business plan that involves robust and well implemented policies. Both the process and the substance are important. For example, if meeting with an employee to discuss a problem with their work performance consider carefully your approach and style. In practice we commonly hear of aggressive and unreasonable tactics that are then perceived as bullying.

Performance management should be a constructive process which allows the employee plenty of opportunities for response and engagement. Consider a defined (and communicated)  timeline and action plan to ensure any issues are resolved.

As highlighted in this case study, ensure you do not blur the issues. Performance management should be dealt with transparently, consistently and carefully. It can be an invaluable tool to improve performance if handled well but can also backfire if handled inappropriately.

BlandsLaw can help provide your business with well drafted workplace policies and ensure that these are implemented appropriately. We can also advise on individual situations when problems do arise.

Sarah Waterhouse, BlandsLaw, Paralegal



[1] [2012] QCAT 605 (27 November 2012).

[2] Ibid, para 10.

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