We can all agree that under performance at work can’t be ignored. It impacts teams, clients, and culture. However, managing it poorly – or without procedural fairness – can be even more damaging.
In a recent case, the Fair Work Commission (FWC) highlighted how things can go wrong even when employers follow internal policies and issue multiple warnings.
A teacher was dismissed after years of documented performance and conduct issues, including formal warnings and a performance improvement plan. On paper, the employer did many things right.
But they still lost the case: Click here for more details.
The FWC found that the dismissal was harsh and unjust – even though it agreed there was a valid reason to terminate. The defining issue was that the process lacked procedural fairness.
The result? A $14,000 pay out for unfair dismissal, plus legal fees and time to defend the claim and a negative impact on the employer’s reputation.
Good policy alone is not enough
Many organisations believe that having HR policies and documented procedures are enough to protect them in the event of a dismissal. But this case proves that policies are only as good as their application.
In this instance, the employer had issued multiple warnings over an extended period and initiated a performance improvement plan. But the breakdown occurred in how the process was implemented:
- The distinction between ‘performance management’ and ‘conduct management’ was not clear, leaving the teacher uncertain about expectations and consequences.
- Feedback was not provided on the teacher’s interim reflections, which meant he couldn’t gauge progress during the performance improvement plan.
- The employer failed to clearly communicate when the performance plan had ended – leaving the process looking incomplete and inconsistent.
- The teacher wasn’t given an opportunity to respond to the allegations or the preliminary decision (often known as a ‘show cause’ meeting) before termination.
This case highlights a critical truth: good policy must be supported by a fair, transparent, and well-executed process. Procedural fairness is a legal obligation that requires leaders to engage in meaningful two-way communication where the employee can respond to issues, demonstrate objectivity, and ensure employees understand and are supported through every stage.
The human and legal cost of getting it wrong
When procedural fairness is overlooked, the consequences go beyond legal and financial risk.
- Reputational harm: Legal rulings like these are often made public. Negative headlines damage the brand, making it harder to attract and retain top talent.
- Precedent for future claims: Mishandling one dismissal case can open the door to broader scrutiny of management practices. Other employees may seek to challenge as well.
- Manager confidence: Without proper training, managers may either avoid performance management altogether or push forward without understanding legal risk.
I believe this isn’t just about the law; it’s about culture. How well an organisation manages under performance says a lot about its values.
Ensuring better outcomes
At EEO Specialists, we have trained many organisations to manage under performance professionally, fairly and with empathy. Our Under Performance Management Workshop provides leaders and HR professionals with legal and practical training to:
✔ Understand why these conversations can be difficult.
✔ Manage difficult conversations confidently by modifying verbal and non-verbal communication.
✔ Create performance improvement plans that are clear, fair, and effective.
✔ Understand what procedural fairness is and how to ensure it is engrained into the process.
✔ Minimise the risk of a successful bullying claim when performance managing an employee.
✔ Minimise legal risk and build a culture of accountability.
We believe managing under performance isn’t just a legal necessity, it’s about treating people with dignity, clarity, and fairness.
This recent FWC case is a timely reminder that having a valid reason to terminate is not enough. We must also demonstrate clarity, fairness, and regular and clear communication with the employee.
As leaders, we owe it to our people and our organisations to get this right. You can equip your managers with the skills, confidence, and clarity they need to manage under performance effectively and lawfully. Because in today’s workplace, fairness isn’t optional; it’s essential for continued success.
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The author, Franca Sala Tenna, is a lawyer and acknowledged workplace behaviour and compliance expert. She is also the Founder & Director of EEO Specialists, and Online Compliance Training.