Managing an underperformer is one of the more challenging tasks that managers face in workplaces. It takes time, it often requires tough conversations and if it isn’t done properly, it can backfire on managers, teams and organisations. But follow a fair process and it can get results one way or another, ideally improved performance.

The recent decision of the Fair Work Commission in Sunanda Soni v Berwick Waters Early Learning Centre Pty Ltd [2020] FWC 4149 highlights the importance of following a fair and proper performance management process in order to avoid a successful workplace bullying claim by the underperforming employee. In that case, the employee claimed she was bullied when she was placed on a Performance Improvement Plan (PIP). The employer denied the bullying allegations, claiming the employee had, “simply taken extreme exception to being brought into a procedurally fair and reasonable performance meeting”.

The employer was able to produce written records that showed it had raised numerous issues with the employee regarding her behaviour, and ultimately, the Fair Work Commission found that the employer had acted appropriately and had not “bullied her out”. Deputy President Hamilton commented that performance management discussions can certainly be unpleasant but, “they are common and necessary, and do not constitute bullying or inappropriate conduct”.

The case is a good and timely reminder of the key steps and safeguards employers need to consider when embarking on a performance management process, not only to increase the chances that the employee will ultimately be able to turn their performance around, but also to ensure that any counterclaims of bullying by an offended employee can be defended.

Before commencing a performance management process, consider the following tips which will assist in ensuring the process is fair, transparent and effective:



Be Prepared

To ensure you get the most out of any conversation about an employee’s performance, take the time before meeting with them to plan the discussion. Putting together an agenda outlining key points and feedback will ensure you stay on track and in control of the conversation. Consider the timing and location of the discussion – it’s important to have these discussions in a discreet setting and the timing can make or break a performance discussion. Avoid having performance discussions just before the employee is about to go on annual leave, for example. Consider whether they may be on a deadline, or consider what time of day is likely to be best – if there’s a reasonable chance the employee will be upset or distressed by your feedback, holding the discussion at the end of the day when they can easily head home without causing a scene might be a sensible approach.

Be Clear

A common mistake when managing underperformers is the failure to provide clear, specific examples of the areas in which the employee’s performance isn’t up to scratch, and to clearly articulate what “good” looks like. There is a tendency for managers to avoid giving negative feedback, as it can often feel harsh. While this can make the conversation feel more comfortable in the short term, in the long term you are not doing the employee any favours. As Brene Browns says “Clear is Kind. Unclear is Unkind”. A fair and authentic performance conversation will be honest, clear and constructive. It is also important to ensure the examples you provide are evidence based, rather than opinion based – objective, rather than subjective. Consider what information or data you can provide to the employee which will clearly demonstrate to them that their performance is not up to scratch.

Be Fair & Open

As important as it is to be well prepared for a performance conversation and to have thought about the outcomes you are seeking, it is equally important to listen genuinely to the employee’s perspective, before deciding on next steps. The employee may disclose issues that are affecting their performance (for example, personal struggles, mental health concerns or other medical conditions) that you were completely unaware of. It’s important to ensure the employee has a fair hearing and these matters need to be taken into account when working out next steps. This was one of the steps noted in the Soni case above – the employee in that case was clearly given an opportunity to respond at all stages of the process, which meant the Fair Work Commission took the view that the process followed by the manager in that case was reasonable.

Keep Records

Tackling the tough conversation that you have been putting off is the first step – but don’t waste all that effort by failing to document what was discussed and agreed. There is a good chance that the conversation may be the start of a more formalised process, and so a written record, such as a PIP, will be an important tool and point of reference for further discussions down the track. It may also be useful as evidence in the event there is a claim or dispute by the employee at a later date, and the process comes under scrutiny.

Seek Expert Advice

Whilst it is critical to be brave enough to tackle performance concerns head on rather than avoid them, these conversations must be undertaken with proper care and caution. As discussed in the Soni case, a relatively common by-product of performance conversations handled poorly are complaints of workplace bullying or victimisation.

Before embarking on a performance conversation where risk factors are at play, you must ensure a best practice approach and avoid any potential exposure to an unfair dismissal or bullying claim. When looking for expert advice in this area, make sure that you talk to a Human Resources professional that has experience in Performance Management.

Ultimately, the desired outcome of any performance management process should genuinely be to assist, support and facilitate the employee to achieve the standard of performance required of them in their role. Investing the time to improve performance and retain the employee will ultimately save you the costs associated with moving someone on, finding a replacement and training that replacement – think up to 1.5 times the employee’s salary!

By following the steps above, not only will you be more likely to achieve that outcome and save costs, but in the unfortunate event that the employee is still unable to meet the required standard, you will be in a stronger position to defend any potential unfair dismissal or bullying claims.

If you need assistance or advice relating to Performance Management in your workplace, get in touch with Cecilia White, Director HR Consulting, Perks People Solutions.