Managing underperformance is a difficult process and employers should always bear in mind that personal or other extenuating circumstances may be impacting a particular employee’s performance.

Any decision relating to performance management or disciplinary action should take these circumstances into account, and should not fall foul of the employer’s obligations at law, such as the unfair dismissal or general protections provisions of the Fair Work Act 2009 (Cth), or Australia’s anti-discrimination legislation.

For example, under both state and federal anti-discrimination legislation, employers have obligations to make reasonable adjustments for employees with a disability unless doing so would impose unjustifiable hardship on the employer. A failure to make such reasonable adjustments may amount to discrimination.

As long as these various obligations are met, then employers will have a solid basis for maintaining that any decision relating to performance management or disciplinary action was appropriate and fair.

In a recent unfair dismissal case before the NSW Industrial Relations Commission (NSWIRC), an employer relied on the reasonable adjustments it had made for an employee with a disability in response to the employee’s claim that it had breached the Disability Discrimination Act 1992 (Cth) by terminating his employment for poor performance.

In Narayan v Industrial Relations Secretary on behalf of the Department of Communities and Justice, Corrective Services NSW [2020] NSWIRComm 1014, the NSWIRC accepted the employer’s evidence that it had made a number of reasonable adjustments for a sentence administration officer who had recently been diagnosed with type 1 diabetes. Those reasonable adjustments were directed towards assisting the employee during a performance management process.

The reasonable adjustments were made following advice from an independent medical examiner (IME) that the employee’s medical condition was likely to have an impact on his work for several months, and in particular, his levels of concentration and attention. Whilst the IME considered the employee to be fit for his role, he recommended that the employee avoid more complex tasks and be provided with intermittent sick leave as needed.

The employer’s reasonable adjustments therefore included:
  • providing the employee with self-paced learning for less complex tasks and more complex tasks in accordance with his capacity for the day;
  • relaxing the requirement to provide medical certificates for all absences;
  • permitting the employee to use recreation leave at short notice;
  • converting unauthorised leave to flex or recreation leave; and
  • providing further training and re-training.

The NSWIRC found that notwithstanding these reasonable adjustments and the additional time provided to the employee to improve his performance, his performance did not improve and eventually warranted dismissal.

Lessons for employers

This decision is a good example of how employers can manage poor performance without breaching their obligations under anti-discrimination legislation, or giving rise to an unfair dismissal or general protections claim.

Reasonable enquiries should be made to ensure that an employer understands the reasons for an employee’s poor performance. If an employee’s disability is affecting their performance, reasonable adjustments should be made to ensure that they are given every opportunity to improve before commencing disciplinary action.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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