Facing a performance management issue? The Fair Work Ombudsman has free online training to help you.

The Fair Work Ombudsman -- the commonwealth government agency with responsibility for enforcing employment regulations -- has wide-ranging powers to investigate and prosecute breaches of employment standards.

Notwithstanding these wide-ranging enforcement powers, I think it is fair to say that the FWO prefers to educate and support organisations to comply with the law and rectify any breaches voluntarily rather than rushing to prosecution.

To this end, the FWO provides a range of high-quality education and other resources to help businesses understand how to interpret and apply employment standards in the workplace. While the material provided by the FWO doesn't count as legal advice, given they are the regulator I think that their view about what is good practice is a pretty good starting point.

Which brings us to performance management, an area that causes much grief and uncertainty for many businesses. Dealing with under-performing employees is not only emotionally difficult, but can also be risky from a compliance point of view -- the consequences of a workplace bullying or unfair dismissal claim can involve significant disruption and costs to a business.

The FWO has released a training package on handling performance management as part of its online learning platform. This is a free resource that provides a sound approach to tackling the issue in a methodical way. As part of the course, participants are able to access a toolkit of practical resources that will be of benefit to experienced practitioners and new managers alike. The resources include:

  • Checklist for implementing a performance system
  • Performance agreement template
  • Performance review discussion plan template
  • Managing underperformance – the initial steps checklist
  • Managing underperformance – the formal steps checklist
  • Performance improvement plan template
  • Underperformance meeting plan template
  • Letter of first/second warning template
  • Letter of final warning template
  • Small Business Fair Dismissal Code and checklist
  • Termination of employment letter template
  • Termination of employment letter template – serious misconduct

If you are in a situation where you may need to deal with employee performance issues, I recommend you have a look at these resources from the FWO.

What is a 'genuine redundancy' and why does it matter?

Termination of an employee's employment due to redundancy -- including, for example, where an organisation is restructuring for financial or operational reasons -- can require different considerations and processes than are required in the case of a dismissal for other reasons.

A claim to Fair Work Australia for unfair dismissal will not be successful if the reason for dismissal was 'genuine redundancy'. However, employees who are dismissed by reason of redundancy are usually entitled to additional termination payments.

This means that it is important to understand what is involved in a 'genuine redundancy'.

Section 389 of the Fair Work Act 2009 states,

Meaning of genuine redundancy

(1)  A person's dismissal was a case of genuine redundancy if:

(a)  the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b)  the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2)  A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a)  the employer's enterprise; or

(b)  the enterprise of an associated entity of the employer.

The Fair Work Ombudsman provides the following explanation of the legislation:

A genuine redundancy is when:

the person’s job doesn't need to be done by anyone

the employer followed any consultation requirements in the award or registered agreement.

A dismissal is not a genuine redundancy if the employer:

still needs the employee’s job to be done by someone (eg. hires someone else to do the job)

has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement or

could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

This is helpful in understanding what an employer should do when contemplating dismissing an employee due to redundancy. As a minimum, employers should be able to show that:

  • The employee's position has gone and won't be filled by another person;
  • If the employee is covered by an award or registered agreement, any consultation requirements in the award or registered agreement have been followed;
  • There has been a genuine consideration about whether the employee can reasonably be redeployed to another job within the business or any associated entity and no suitable job was identified.

If an employee's employment is terminated due to redundancy it is important to correctly calculate the additional entitlements that apply.

In complex or contentious cases it is advisable to seek expert advice, but in the first instance employers can access free resources from the Fair Work Ombudsman that are designed to assist in meeting obligations in this area. These resources include: