NSW Negative Performance Review Without Evidence - Defamation?

[John_ABC]

Like most large organisations, my employer has 6 month performance reviews. Most of the reviews I have sat through over the past 13 years are based not on facts but by conjecture established by my employer based of my immediate supervisor’s recollections and their involvement in what I have done.

Technically my supervisors are involved to a very limited degree in my work (less than 5%). Every time I’m rated good or bad, no factual evidence is given supporting the findings, just hearsay. As the reviews go on to my company record it forms part of work reputation within the organisation and therefore impacts my chances at promotion.

Can I sue under Employment Law, and win, for defamation where a negative performance review has been given that is without clear cut evidence?

 

[Sophea]

Without knowing all the facts and circumstances it is impossible to state whether you could win a defamation case against your employer for a negative appraisal. However, there are cases which have suggested that negative statements made between managers about employees which are unfounded and have the impact of damaging the employee's reputation may provide grounds for a defamation claim. Check out this case note for more info: Could your HR emails trigger a defamation claim?

Although the circumstances are not the same, it suggests that defamation may be established in cases of managers making representations to other managers about employees.

Also check out these articles on what you need to prove to establish a case for defamation: Defamation Law Archives - Legal Blog - LawAnswers.com.au

 

[JS79]

Hi John,

Have you thought about writing a letter to the supervisor regarding your performance reviews? Have you asked them to explain any negative comments they have made and why they made them?

You could always look at appealing to your employer to have a performance review undertaken by another person if you believe that your supervisor is biased towards you.

At the end of the day, if they have evidence to back up what they have written in the performance review then it would be unlikely that you would be able to sue for defamation.

Good luck.