In a decision that provides reassurance for compliant employers, the Fair Work Commission has dismissed a former employee’s unfair dismissal claim, stating “It is unfortunately easy to respond to performance or disciplinary allegations, with counter allegations of bullying, but such counter allegations have to be substantiated otherwise they may not be accepted.”
The case involved an employee who claimed she had been forced to resign due to “mental harassment” and bullying by the employer. The employer responded by stating that:
“the applicant has simply taken extreme exception to being brought into a procedurally fair and reasonable performance meeting, being issued a first written warning and being placed on a performance management plan. Any unsubstantiated claims of harassment and bullying made after the fact are a direct result of her objection to being taken through a fair and reasonable performance management process.”
Deputy President Hamilton effectively agreed with the employer, taking into account the timing of the allegations by the employee and the fair and reasonable performance management process that had been followed by the employer. This included:
- The employee had attended a meeting at which the performance concerns were outlined to her
- The employee was provided with an opportunity to respond to the concerns
- The employer kept detailed records of incidents giving rise to the conduct concerns, the meetings with the employee and subsequent actions taken
- The employee’s bullying allegations were made after she had been placed on a Performance Improvement Plan
In dismissing the employee’s application, Deputy President Hamilton found that the meetings with the employee had been properly conducted and that a fair and reasonable performance management process had been followed by the employer.
Lessons for Employers
This case confirms that an employer who can demonstrate that they have followed a fair and reasonable performance management process is well placed to defend an unfair dismissal claim from a disgruntled employee.
In managing an employee’s performance, employers should ensure:
- The performance concerns are discussed with the employee, with specific details of the concerns outlined and clear instructions for required improvement
- The employee is provided with an opportunity to respond to the concerns
- The employee is given time and opportunity to improve and to address the concerns
- The employee is provided with procedural fairness (eg notice of requirement to attend a meeting and offer of a support person)
Employers should also keep detailed records of meetings and other matters surrounding the performance concerns as this may need to be relied upon in the event that disciplinary action and/or termination is challenged by the employee.
1. Sunanda Soni v Berwick Waters Early Learning Centre Pty Ltd  FWC 4149 (7 August 2020)