Example of Unfair Treatment at Work

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By: Carly Stebbing
Categories: Discrimination Working Mum

Performance Management Action

You have been handed a performance management plan and asked to sign it before next week. It feels like it came out of nowhere, and that it is unfair treatment. You’re not even sure your boss can do this to you. What do you do? This article will discuss the performance management action your employer can implement, if it is unfair, and how to best respond to it.

What is performance management action?

An employer is permitted to review your performance at work, at regular intervals. If they identify deficiencies in your performance, an employer is entitled to implement a performance management action (PMA) to enable you to improve. A PMA may also be known as a personal improvement plan or a performance management plan.

Generally speaking, a PMA is implemented after an employee has received a verbal and/or written warning in relation to their performance or conduct. However, this first step is not legally necessary.

You should confirm if there is anything in your contract of employment that expressly provides for a PMA, and confirm whether it has been complied with. You can also do the same with any applicable policy or procedure of your employer.

If there are reasonable grounds for an employer to implement a PMA, an employee who refuses to participate may be failing to follow a reasonable and lawful management direction. Failure to follow a direction can be grounds for termination of employment, or summary dismissal.

However – the issuing of a PMA is not automatically a reasonable a lawful management direction. In some circumstances, a PMA will not be reasonable. It may be an example of unfair treatment at work.

Resolution123 have assisted clients who have experienced a PMA as part of bullying behaviour from their employer.

What is reasonable?

Before signing a PMA, you must determine if it is a reasonable and lawful management direction that you must follow. The primary question will be: is the management action reasonable?

An employer’s behaviour in implementing a PMA will not be considered bullying if it is reasonable management action carried out in a reasonable manner. A properly executed performance management plan is an example of reasonable management action.

In James Willis v Capital Radiology Pty Ltd, the term “reasonable” was considered:

A requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed.

While being put on performance management action may seem unfair and unreasonable, determining whether the action was reasonable requires an objective assessment of the action, in the context of the circumstances and knowledge of those involved at the time. This includes:

  • The circumstances that led to and created the need for the management action to be taken;
  • The circumstances while the management action was being taken; and
  • The consequences that flowed from the management action.

This includes the specific attributes and circumstances of the situation, including the emotional state and psychological health of the employee.

In summary, the reasonableness of the PMA will be determined by:

  1. The connection between the conduct of the employee and the management action;
  2. If the action is proportionate to the conduct; and
  3. The manner and method of implementing the PMA.

What should you do if you think the performance management action is unfair?

Performance management is not an uncommon process, and not should not be feared. If done correctly, it can be an opportunity for employees to work with their employer on improving their skills and performance in a supportive environment.

However, there are instances where PMA can be genuinely unfair and unreasonable. If this is the case, there are options available.

The first step is to sit down and discuss with your employer the reasons why you believe the PMA is unfair, and why you do not agree with it. If you do not believe it is a reasonable and lawful direction, you need to justify why. It is useful to use illustrative examples of your performance and any other evidence that indicates that there is no connection between the conduct alleged, and you.

You are also entitled to ask for changes to the PMA – for example, you might consider negotiating timeframe for delivery, or expectations placed on you. You might also consider escalating your concerns to senior management or HR.

If this is not successful, you can consider lodging an application with the Fair Work Commission (FWC) in response to the PMA being implemented. Depending on the circumstances the appropriate step may be a stop bullying application or a general protections application.

Conclusion

For more information regarding performance management action, or if you have been treated unfairly at work click on the link unfair treatment at work.

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About Carly Stebbing
Carly is an entrepreneur and workplace rights advocate who founded Resolution123. Resolution123 uses technology to match employees that need quick, simple and affordable legal advice with experienced workplace lawyers

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