If you are an employee who has been presented with a Performance Improvement Plan (PIP), you should be aware that this step may be the first in a series of formalities that ends with the termination of your employment.
In a best case scenario, a PIP is a genuine attempt by your employer to get you back on track and address problems in your performance or behaviour that are holding you back, but sometimes, the PIP process is used by an employer to start a paper record that may be used as evidence to support your dismissal.
You may suspect that a PIP is part of a termination plan if you have been presented with a PIP after exercising workplace rights or if you have recently returned from maternity or personal leave or if you have been an employee of the company for many years and never had a problem before. In these situations, you may suspect that an unreasonable PIP is being used by your employer to get rid of you and you really have only three choices – resign, agree to participate in the plan, or refuse the PIP and be prepared to be dismissed.
Accept the PIP
If you choose to accept the PIP, this may be an opportunity to engage with your employer and resolve any issues with them. You may even be able to negotiate some variations to the plan or challenge the employer on its details. However, if the PIP is not genuine attempt by your employer to improve your performance or behaviour, you may still find your employment is terminated at the end of the plan.
For this reason, if you have been provided with a PIP that is punitive or designed to set you up for failure, you should seek legal advice as soon as possible. It is hard for an employee to challenge an unfair PIP at the time of termination because the evidence seems to suggest that you accepted the terms of the PIP and then was unable to meet them.
If you believe that your employer is targeting you unfairly or that they are using the PIP as a pretext to terminate your employment, you should call us (02) 9199 8597 or email us as soon as possible. We can review the circumstances of your case and provide you with an honest assessment of your legal rights and options, so that you can understand what to do next.
Resignation or Refusal to accept the PIP
Under Australian law, an employer can terminate an employee’s employment if there is a valid reason for doing so. Poor performance is one such reason and refusing to comply with a lawful and reasonable direction issued by the employer is another. However, before an employer can terminate an employee for poor performance, they must follow a fair and reasonable process. This process may include providing the employee with a PIP to help them improve their performance. If you resign upon being presented with a PIP or refuse to comply with a PIP (even if you are suspicious about your employer’s bona fides), your employer may take disciplinary action against you, which could include termination of your employment.
Depending on the facts of your case, you may be able to bring an action before the Fair Work Commission for:
- unfair dismissal;
- constructive dismissal on the grounds that your resignation or dismissal from employment was ‘forced’ because of the employer’s conduct; or
- an adverse action claim within the meaning of section 342 of the Fair Work Act 2009 (Cth).
In such cases, the circumstances of your termination or resignation will be assessed along with the actions of your employer.
How can we help?
When presented with a PIP, the best course of action for an employee is not always straightforward, and it is important for employees to understand their legal rights and obligations in this situation. If you have been provided with a Performance Improvement Plan by your employer that you think is unjustified or unwarranted, call us as soon as possible on (02) 9199 8597 or email us to find out what your options are. \
The information contained in this post is current at the date of editing – 3 October 2024
