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VIC Employment Law - Subjective Non-tangible Performance Review Criteria?

Discussion in 'Employment Law Forum' started by MarkMark, 15 June 2015.

  1. MarkMark

    MarkMark Member

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    Good morning,

    My company is going through staff performance reviews this month. Their assessment criterion is how much an employee embraces the company's values. This is assessed subjectively by the employee's manager as you can't really put a hard number on things such as trust or passion.

    I was wondering if this was legitimate under employment law.

    Thank you.
     
  2. Ivy

    Ivy Well-Known Member

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    Hi there,

    Employment law is fairly vague in the area of performance reviews. Broadly, employers have to treat their employees fairly, without discrimination, arbitrary adverse action (eg demotion, dismissal) or bullying.

    If the performance review process is unreasonable and creates severe mental anguish, the company could be up against worker's comp claims. If someone gets demoted or dismissed or doesn't have their contract renewed because of an arbitrary performance criteria that subjectively and unreasonably determines them to not fit with the "vibe" of the company, then the company could be facing a claim through the Fair Work Commission (or applicable state body depending on the nature of the employment).

    Employers also have to remain consistent with their own workplace policies, employment contracts and enterprise agreements.

    So the company may be able to conduct this assessment of your passion and trust, however if the outcome is unfair, there is adverse action or you are discriminated against then they could be breaching employment law. I imagine that implicit racially, sexually and ageist discriminative cultural norms could easily result in discrimination through performance reviews based on the fluid and inherently subjective criteria you mentioned.
     
  3. MarkMark

    MarkMark Member

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    Thanks for that Ivy.
     

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