Often international businesses and employers are not aware of the strict laws in place for performance management in Australia protecting Australian employees. International businesses with Australian offices or Australian staff often get themselves into trouble when performance managing, making redundant or terminating Australian staff. International businesses should be aware of the protections in Australian law and adopt a policy for performance management that is fair to employees and compliant with Australian law.

Performance Management of Local Staff

Poor performance vs poor conduct

Australian employment law differentiates between poor performance and poor conduct. Poor performance is a failure to complete work, tasks or duties to the required standard.

Poor conduct is misconduct in the workplace such as consistently being late to work, acting inappropriately among other staff or other forms of misconduct.

Dealing with minor poor performance

Minor issues of poor performance should be dealt with through informal counselling. A minor issue of poor performance may be an employee being late on a few consecutive deadlines.

Informal counselling should take place between a manager and the employee. The manager should express their concern before the employee is given the chance to respond, talk about any issues they are having and a plan should be established with the manager to assist the employee to better performance.

Using the above example, an employee who is missing deadlines may talk about feeling overworked or that they are struggling with a certain task. A plan to improve performance may include better time management or delegating some tasks to another employee to assist the poorly performing employee to better perform.

Minor issues should be dealt with in a similar way, with formal counselling used to provide the employee with an opportunity to respond to concerns and improve conduct.

Serious performance and serious misconduct issues

Formal counselling should be used when issues of misconduct or issues of performance are more serious. Formal counselling requires written notice to be sent to the employee prior to the meeting. This notice should include:

  • Notice that the employee is required to attend a formal counselling meeting
  • The date and location of the meeting
  • The names and positions of the people attending the meeting
  • That the employee is entitled to bring a support person if they wish
  • Outline of the reason for the meeting (issue of performance or conduct)
  • A brief outline of the process that will be adopted at the meeting

At the meeting, once concerns have been outlines, the employee should be provided with an opportunity to respond.

If the meeting is in regards to poor performance, during the course of the meeting, a formal performance improvement plan should be established, setting out goals and timeframes for the employee.

If this plan is not complied with, another formal notice of counselling should be sent, a new plan established and the process repeated. Once two performance plans have been made and not complied with, only then may termination be considered.

These requirements for performance management in Australia should be followed by overseas businesses managing employees in Australia to avoid unfair dismissal claims, ensure staff are treated fairly and that the business is protected.

For more information, download our Managers’ Toolkit from https://jfmlaw.com.au/managers-toolkit/.