NSW Unfair Dismissal - Justifying Termination Due to Unsatisfactory Performance?

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John U

Active Member
23 November 2016
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I am a white collar professional working (under an Enterprise Agreement) for an organisation that has publicly declared that it is undergoing extensive change, but am currently being accused of unsatisfactory performance, which I believe is merely a ruse by my employer to terminate me cheaply, without declaring redundancy and making a severance payment that I would be entitled to under the EA.

I am wondering:
  1. What evidence does an employer need to provide to justify termination due to unsatisfactory performance rather than workplace change? (both are covered by the EA)
  2. What should I do to maximise the chance that I receive what I am potentially entitled to? (approximately 1 year of severance pay)
My performance has never been described as being unsatisfactory until now, and while in performance development meetings I have been asked to aim for higher performance in certain areas, those aims have always seemed aspirational and standard management practice of trying to drive higher performance, rather than requirements or indications of what performance is deemed to be satisfactory.

I'm a mid-range performer compared to other similar employees in my team, but the employer would clearly prefer to retain the top performers after the change process, and so can enact change just by elevating performance expectations to terminate employees that it doesn't want.

If I appealed unfair dismissal (for unsatisfactory performance) through Fair Work Australia, then the remedy that I might receive would be much less than my potential severance payment.

Thanks
 
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Rod

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1. Written evidence, or extremely good witnesses.

2. If you get written warnings, refute and correct as much as you can in writing to employer. Don't just accept their warnings without a good response. Push back as much as possible.

Under no circumstances tell them you know your rights, it may make them more careful.
 
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John U

Active Member
23 November 2016
7
1
34
1. Written evidence, or extremely good witnesses.

2. If you get written warnings, refute and correct as much as you can in writing to employer. Don't just accept their warnings without a good response. Push back as much as possible.

Under no circumstances tell them you know your rights, it may make them more careful.

Thanks for that
 

LMA

Member
22 November 2016
4
1
4
I have managed performance management processes before (not to avoid severance, due to genuine non-performance). Generally there needs to be some areas of improvement identified and clear, time-bound objectives set to meet certain performance measures.

Do you have annual performance reviews? It would be very difficult to justify poor performance if annual reviews had not indicated an issue.
 
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John U

Active Member
23 November 2016
7
1
34
I have managed performance management processes before (not to avoid severance, due to genuine non-performance). Generally there needs to be some areas of improvement identified and clear, time-bound objectives set to meet certain performance measures.

Do you have annual performance reviews? It would be very difficult to justify poor performance if annual reviews had not indicated an issue.
Thanks LMA. I've had performance reviews, but more like every 2 years than annually. They did not indicate an issue to me - the worst comment that I've received was that my performance in an area was "low" but it was never described as being inadequate or unsatisfactory, and was amidst comments about other areas being "good".

Are there any key words that are conventionally used to flag/"indicate an issue"?
 

Matthew Lynch

Lawyer
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18 July 2016
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Are you saying that multiple employees are undergoing the same performance review as you are?

Have you received any warning letter that your employment is at risk of termination if you do not improve?