Performance Management


Under-performance should be addressed promptly and in a balanced and fair manner with employees. Employees are often unaware that they may be performing poorly due to a lack of clear goals or workplace policies.


In some situations performance standards may not have even been discussed with the employee and the employee does not know whether they are doing a good job because no counseling or feedback on their performance has been provided.


Employees should be given an opportunity to respond to any allegations of poor performance in discussion with the employer or relevant manager and a clear plan of action should be jointly devised with the employee to implement a solution.


It is important that an employer allows a reasonable time-frame for the employee to improve and that dates for further meetings are set to review the performance improvement plan.

Employees should keep written notes of any discussions with employers in case these are needed for future legal action. If the employer fails to disclose that the under-performance may result in disciplinary action (including termination) and give adequate warnings there may be a claim for unfair dismissal given the employee was not advised of this being a disciplinary rather than a performance process.


If an employee is unfairly or unreasonably targeted for performance management, this may form the basis of a bullying or general protections claim.  We can assist with any performance management questions you might have about the process and if this is reasonable under the circumstances.




Workplace Bullying


If performance management is carried out in an unreasonable or unfair manner it may be considered bullying. Bullying in the workplace is repeatedly acting in an unreasonable or inappropriate way towards an individual employee or group of workers. The behaviour must also create a risk to health and safety.


Examples of bullying may include behaving aggressively, deliberately excluding someone from work-related events or information, displaying offensive material, teasing or practical jokes or making unreasonable work demands.


If this is happening to you it is important that you keep written notes of these occurrences including when it happened (date and time) and what was said or done.


On 1 January 2014 the Fair Work Commission introduced a new anti-bullying jurisdiction. This allows employees (including outworkers, students gaining work experience, contractors or subcontractors and volunteers) to apply for an order to make the bullying stop.


Bullying behaviour isn’t necessarily related to a person or group’s characteristics like their religion, sexual orientation or race. If the bullying is due, in whole or in part, to an employee’s race, sex, age (or another prohibited ground) there may be good grounds for a claim alleging discrimination.


We can provide support and advice about these legal and personal issues during this difficult time. Contact us for a free, no obligation discussion regarding your own situation.



Workplace Discrimination


Discrimination in the workplace occurs when an employee is treated less favorably, unfairly or differently because of a specific quality or attributes that that the employee has, or is believed to have. These include attributes such as:





Sexual orientation


Physical or mental disability

Marital status

Family or carer's responsibilities



Political opinion

National extraction

Social origin.


Some examples of unfair treatment may include denying access to training programs, refusing opportunities for promotions, transfers or other employee benefits, setting unfair conditions or termination of employment.


Employees are protected from workplace discrimination by a number of state and federal legislative instruments. If this is happening to you, speak to us about your options and seek legal advice.



General Protections


General protections protect the workplace rights and freedom of association of people in the workplace. Some of the rights that are protected include:


Wages, leave and other workplace rights

Union activities


Absence because of illness or injury

Sham contracting arrangements


These are just some of the more common rights that are protected. Speak to us about your situation before you make a general protections application.


Your employer must not dismiss you for using or trying to exercise your workplace rights. Also, your employer must not dismiss you for making a complaint or an enquiry about these rights. If they do dismiss you for any of those reasons, it is possible to make a general protections application. You have to apply to the Fair Work Commission within 21 days after the dismissal takes effect.


It is possible to make a general protections application even if you have not been dismissed. Sometimes these types of claims are called ‘adverse action claims’. Adverse action can be taken against an employee or potential employee and may include:


refusing to give legal entitlements

changing a job to their disadvantage

being treated differently to others

not hiring them

offering them different (and unfair) terms and conditions, compared to other employees.


‘Workplace rights’ can be given a broad interpretation and it is important to carefully consider your legal options before making a claim. Contact us and get legal advice before you make an application.


You may also have the option of making a complaint to the Australian Human Rights Commission or the Anti-Discrimination Board in your State or Territory.



Sexual Harassment


Sexual harassment is a type of sex discrimination. If you have been sexually harassed at work by an employer, workmate or another person in a working relationship with you, you can make a complaint to the Australian Human Rights Commission.


Unlike workplace bullying, sexual harassment in the workplace does not have to be repeated, it can be a single instance of unwanted or unwelcome sexual behaviour.


Sexual harassment can take many different forms including via mobile phones, email and social networking websites. In addition to seeking legal advice you should also keep notes of any unwanted or unwelcome behaviours as they happen to you.


Your employer may have policies or procedures that deal with work health and safety including harassment. If you make a complaint about the harassment you are protected from adverse action by the General Protections provisions of the Fair Work Act 2009. A written complaint is preferable as this can later be adduced as evidence if the matter is escalated.


We understand that sexual harassment can be particularly distressing for both male and female victims. We will support you and help you to claim compensation for lost wages, hurt, distress, pain and suffering.



Unfair Dismissal


Unfair dismissal occurs when an employee has been dismissed from their employment in a harsh, unjust or unreasonable manner. A dismissal can also occur when an employee has been forced to resign due to the conduct of an employer. This is often referred to as ‘constructive dismissal’.


Employees are protected from unfair dismissal if they have been employed for at least 6 months. Employees working for a small business have to be employed for at least 12 months before they can make an application for unfair dismissal. A small business is defined as a business that employs less than 15 employees.


There are a number of other exceptions that apply in respect of when an employee can make an unfair dismissal application. Speak to us to see if you are eligible to make a claim.


If you have been employed for over 12 months and you have not been made redundant or dismissed for serious misconduct, then before you are terminated and in order to make the dismissal ‘fair’, the employer should:


warn the employee

provide the employee with a reasonable amount of time to improve their performance or conduct

give the employee a reasonable chance to rectify the problem, and

advise the employee of the reason for dismissal and give the employee an opportunity to respond.


Your application for unfair dismissal must be lodged within 21 days after the dismissal takes effect. The Fair Work Commission is very strict with these timeframes and out of time applications are rarely accepted.


When your application is lodged with the Fair Work Commission, a copy of this is sent to your employer. The employer is then contacted by the Fair Work Commission and asked to provide a response.


The majority of unfair dismissal matters are resolved at a telephone conciliation conference, which is a voluntary telephone meeting between the employee, the employer and a conciliator from the Fair Work Commission. A legal representative for either side may be present and/or speak on behalf of the represented party.


If your matter cannot be resolved at conciliation it will proceed to a conference or hearing before a Member of the Commission and a decision will be made as to whether your dismissal was harsh, unjust or unreasonable.


There are a number of considerations that the Fair Work Commission will take into account when making an unfair dismissal decision. Call us for a free, no obligation consultation about your matter.





In some limited circumstances an employee may make an unfair dismissal if a redundancy is not considered genuine.


A redundancy may not be considered genuine if:


your employer re-fills your position with a new employee

there is another job at that workplace or at an associated entity that you could be transferred (redeployed) to but your employer does not do this

your employer does not consult with its employees before making positions redundant


If you were made redundant as a result of exercising a workplace right or for a prohibited reason such as taking parental leave, you may be eligible to make a general protections or discrimination claim. Please contact us to discuss your options as there are strict time limits on making claims such as these.





Performance Management


Workplace Bullying


Workplace Discrimination


General Protections


Sexual Harassment


Unfair Dismissal




© Labour Pains Legal 2014