WA Salary reduced due to performance

[Arno1981]

I've been employed with my current employer since March 2019. They sponsored my work visa as well as my Permanent Residency visa.

All was going well (I received much praise for my work, skill and knowledge) until 13 December 2019 when my employer highlighted poor performance. The reasons were objectives not met during the first 9 months. In this discussion I acknowledged that my focus were on implementing operational procedures instead of completing strategic objectives. My employer and I agreed that I would refocus on strategic objectives.

In the first week of January 2020 my employer conducted an impromptu performance assessment highlighting performance problems. I did not receive a copy of this assessment and no performance plan was discussed.

In the second week of January my employer had a follow up meeting on the December 13 discussion to add statements about the "lifestyle I've built" and rigid work hours (which are more than what my contract stipulates). I again reiterated my renewed focus on completing strategic objectives.

I've been working 70 hour weeks since January to try and achieve the strategic objectives, but as I was not making progress I approached my employer and indicated that I need help prioritising tasks to align them with the company's objectives and ensure I deliver results. My employer indicated which objective to focus on.

On 25 February I again approached my employer to request a "reset" in order to prioritise the strategic objectives and create an agreed action plan to prioritise the strategic objectives and realign my focus with that of the business.

Yesterday my employer indicated that my performance had not improved, that I had not achieved any objectives and that I deliver work equivalent to someone earning $80,000 a year. As such my salary will be reduced from $150,000 a year to $80,000, will be incrementally adjusted back to $150,000 as I complete objectives.

I have not formally received a warning (I do consider the 13 December 2019 meeting as a verbal warning) and I have not been placed under performance review or performance management. The salary cut will add significant financial stress and possibly personal financial ruin.

I am concerned however that pushing back may result in dismissal or redundancy, and that this may affect our Permanent Residency.

Is anyone able to provide guidance in this scenario? Thank you in advance.

 

[STEVP]

Hi, have you checked with your contract with the employer? If there is any provision in the contract about the reduction for poor performance or the failure to achieve the objective, the reduction might not amount to a breach of contract. But if not, if the contract said nothing about the reduction and has a guarantee of the payment, this might amount to a breach of contract. But it is a little bit complicated, if there is such performance policy in the company. In this circumstances, the question might be whether those kinds of policy are part of your contract. For this part, legal advice is recommended. And also, you could check which award, if there is any, applies to you through the fair-work infoline, to see whether the reduction has made the salary less than the prescribed number in an award (which is not very likely, since you still earn $80,000 per year). And if you are a full time employee, the maxim working hour is 38 hours per week, and you could refuse the unreasonable additional working hours required by your employer.

About the dismissal, your performance might be used as a valid reason to dismiss you, especially when there is performance review and previous warning about your performance, and the chance for you to improve your performance. Those things might be taken into account when the FWC assess whether the dismissal is unfair or not.

As for how this might affect your PR, I have no idea. But if you have already got your PR status, the dismissal might not affect it. Still, recommend you to check it with a lawyer.

 

[Arno1981]

Hi, thank you for the detailed reply. I confirmed with an immigration agent that my PR status will be unaffected, so that eliminates that worry.

I am employed full time, 40hrs per week. My contract shows my annual remuneration plus super, no conditions around that.

Regarding performance, my contract simply states that remuneration may be affected by many factors, and then lists a whole bunch including "your individual performance". However, I have not had a single document presented to me that stipulates objectives to meet, nor have I been put on a performance management plan, and my requests for help has not yielded any. Thus, no objective assessment of my performance exists, only subjective opinion which surely cannot form the basis of a salary reduction?

 

[STEVP]

Well, generally, your employer has the right to assess their employee's performance. There is no need for your agreement to it. But if you think these is no such objective standards, and the employer do not act in good faith, it is possible that he has breached the contract. But it is really a complicated thing as for whether such conduct amounts to breach of the contract in common law. Or if you think you have been targeted or picked out for some unlawful reasons, like discrimination or because of your exercise of workplace right, this may fall into the regime of general protection disputes. You could find more details of it in FWC website.

 

[Rod]

From an employment perspective your remedy is to claim breach of contract and/or constructive dismissal.

From a PR perspective you may want to just keep quiet and continue working so you don't lose PR.

I can't tell which is more important, your money, or PR. Whichever is more important tells you what direction to take.