Employment Law Trivia – Did you know…?
1. Poor Performance isn’t ‘Misconduct’
Under the Fair Work Act 2009 (Cth), poor performance and misconduct are treated differently. Misconduct can justify summary dismissal in serious cases, but performance issues generally require a process of feedback, support and reasonable opportunity to improve before termination is defensible.
2. Contracts and Policies can create binding obligations
If performance management processes or KPIs are written into contracts or policies, failing to follow them can expose an employer to breach of contract or adverse action claims. It’s critical to ensure contracts are carefully drafted and policies include a disclaimer to denote that they are not contractually binding.
3. Documenting the Performance Management process protects you
The Fair Work Commission often places weight on contemporaneous notes and records when assessing unfair dismissal claims. A lack of documentation from the employer can make even a fair process look unfair.
4. Probation doesn’t mean risk-free termination
Even during probation, employees are protected from unlawful dismissal (eg discrimination or adverse action). Employers should still follow a fair performance management process and shouldn’t assume that probation means risk-free termination.
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