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Manage an underperforming employee

We will help you address underperformance in a way that is fair to the employee and safe for the business.

Most underperformance has been going on for a while before anyone rings a lawyer. That is the first problem. The conversations were had informally, nothing was written down, and the employee has no record of ever being told there was an issue. A dismissal on that history is difficult to defend, whatever the performance was actually like. We help employers run a process that fixes the performance where it can be fixed, and stands up where it cannot.

Speak to a lawyer What is included

A standard that can be measured

The employee is held to something specific rather than to a general sense of dissatisfaction.

A real chance to improve

The process gives the employee support and time, which is what makes any later decision defensible.

A file that explains itself

Every step is recorded, so the reason for the decision is evident without reconstruction.

What does managing underperformance actually involve?

Underperformance is a failure to do the job to the standard required. It is not the same as misconduct, which is a breach of the rules rather than a shortfall in capability or output. The distinction matters, because the two are managed differently and confusing them causes most of the trouble.

A performance process has a shape. The standard has to be made clear and the gap identified specifically. The employee has to be told, and given a real chance to improve. Support has to be offered as well. The Fair Work Act 2009 (Cth) (the Act) does not prescribe a formula. The Fair Work Commission does look at whether the employee was warned and given an opportunity to respond. A performance improvement plan is the usual vehicle, and it works only if the standards in it can be measured.

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How many warnings do I have to give?

There is no fixed number. What matters is that the employee was told clearly their performance was not acceptable. They must also be told what had to change, and given a reasonable chance to change it. One well-documented warning can be enough. Three vague conversations often are not.

How long should a performance improvement plan run?

Long enough for the improvement to be realistic, which usually means four to twelve weeks depending on the role. A senior role with longer cycles needs longer. A plan that is too short looks like a formality, and that is how it will be characterised later.

Can the employee bring someone to the meeting?

Yes, and you should offer it. An employee is entitled to have a support person present at a discussion about their employment. Refusing that request is one of the specific things the Commission looks at when assessing whether a dismissal was unfair.

What if the performance problem is really a health issue?

Then it stops being a performance matter and becomes something else. Managing an employee for performance where the underlying cause is illness, injury or disability can expose you to a discrimination or general protections claim. Get advice before you continue the process.

Address it properly now, or defend it later

Tell us what the performance issue is and what has been said so far. We will tell you what the record needs to look like before any decision gets made.

Doing nothing about it is also a decision

Someone on your team is not doing the job, and it is affecting the people who are. You have raised it, probably more than once, and nothing much has changed. What you have not done is put any of it in writing.

You would rather be fair than combative, and that instinct is the right one. It is also the reason most employers end up with no record of a problem everybody knew about.

We will advise on whether the issue is performance or conduct, because they are managed differently.
We will help you define the standard and the gap in measurable terms.
We will prepare the performance improvement plan and the meeting structure.
We will advise on the record to keep at each review.
We will advise on your options if performance does not improve.

You have had the conversation, more than once

The work is late, or it is wrong, or the customers have started mentioning it. You have spoken to them, kindly, and there was a brief improvement. The rest of the team has noticed that nothing has actually changed, and a couple of them have said so. You are now weighing whether to keep managing it or to end it, and you are not sure the file supports either choice.

What's included in your performance management service

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Advice on whether the matter is performance or misconduct.
Role standard and performance gap definition.
Performance improvement plan preparation.
Meeting structure, notice and support person guidance.
Warning letters and review records.
Advice on the decision and the risk if performance does not improve.

What an undocumented performance problem costs

The failure here is rarely the decision. It is the record behind it. Take an employer who dismisses for poor performance and cannot produce a written warning, a clear standard, or a note of one conversation. There is no evidence the employee was ever told. The Commission is left with the employer’s account against the employee’s, and that is not a contest an employer wins easily.

The costs compound well before that. Good employees see that poor work carries no consequence and adjust their own effort down. A team that has been carrying somebody for a year stops saying so. By the time it is dealt with, the business has lost more in output and morale than the dismissal or the claim will cost.

How we get the performance fixed or the exit made safe

We start with what the job actually requires and where the gap is. Vague standards are the most common reason a performance process fails, because an employee cannot be held to something nobody has defined. We help you write the standard in terms that can be measured.

Then we build the process. A meeting the employee is told about in advance and can bring a support person to. A written plan with specific targets and a realistic period to meet them. Support that is genuinely offered, so it cannot later be said the employee was set up to fail. Reviews recorded at each stage. Most matters improve here, which is the point of doing it. Where they do not, you reach the decision with a file that explains itself.

How a performance process runs

The employee gets a fair chance, and the business gets a record.

Define the standard

We work out what the role requires and where the shortfall is, in terms specific enough to be measured.

Run the plan

We prepare the improvement plan, the meeting structure and the written record at each review point.

Decide on the record

If performance does not improve, you make the decision supported by a file that shows the process was fair.

Advice that fixes the performance where it can be fixed

This is one of the most draining things a business owner deals with. The reason is that the fair thing and the safe thing pull in different directions. Being decent about it means giving people time. Protecting the business means writing things down. Employers often feel the second undermines the first.

It does not. A written standard and a plan the employee can actually meet is the fairest version of this conversation, not the coldest. We act for employers on performance processes, and on the claims that follow the ones run badly. That tells us which steps get tested afterwards and which never do.

Our great lawyer guarantee

Six principles we hold to, whatever you bring us and however long it takes.

Take the time

We listen carefully to understand what you want to achieve, then step you through the advice and the documents.

Share our knowledge

We pass on as much as we can, so you can make your own informed decisions.

Stick to our knitting

We only do what we are good at, so you never pay for our learning.

Work as one team

Someone is always available to answer your question or point you the right way.

Fair pricing

A fixed or capped quote for advice and documents, so you do not carry the price risk.

It is your show

We are in it for a front row seat to witness your success, not for our egos.

Get the process right before the decision

Tell us what the performance problem is and what has already been said. We will tell you what the file needs to contain, and how to run the next conversation so it counts.

Speak to a lawyer 1300 654 590