Can I Fire Someone for Not Carrying Out Their Job Properly?

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Table of Contents

• Recognising Underperformance
• What is a “General Protections Claim”?
• What Does This Mean For Me?
• If I Should Not Fire Someone Right Away, What Should I Do?
• What Does Managing Someone’s Performance Involve?
• What Happens If My Employee’s Performance Does Not Improve?
• Key Takeaways
• Frequently Asked Questions 

If you have to fire someone, there are many issues you will need to consider before making this decision. If the issue is that your employee is not carrying out their job properly, you may be able to fire them. However, you should assess each situation on a case-by-case basis. You should try and manage your employee’s performance first and consider whether there is any risk that you will face a “general protections” claim. This article outlines what a general protections claim is and how you can avoid facing a claim. You can do so by managing an employee’s underperformance fairly. 

Recognising Underperformance

Underperformance is when your employee is repeatedly not meeting the requirements of their role. Their requirements should be in the:

• employee’s position description;
• employment agreements;
• key performance indicators; or 
• company policies. 

You must distinguish underperformance from misconduct. Stealing from you, or assaulting other employees, although obviously a breach of general workplace standards, is misconduct and should be dealt with differently to underperformance. 

What is a “General Protections Claim”?

Under the general protections provisions of the Fair Work Act 2009 (Cth) (‘the Act’), employers are prohibited from taking adverse action, such as dismissing an employee because that employee has a protected attribute or has engaged in a protected activity. These are, but are not limited to:

• the employee’s workplace rights;
• industrial activities; and 
• other protected grounds, including race, gender, age, religion and disability. 

If your employee alleges that their dismissal breaches the general protection provisions, they may apply to the Fair Work Commission following the dismissal. Remedies for breaches of the general protections provisions include, but are not limited to, reinstatement and compensation. Compensation for violation of the general protections provisions is uncapped and may consist of compensation for hurt and humiliation suffered by the employee as a result of their dismissal. 

It is also essential to be aware that the general protection provisions are civil remedy provisions to which pecuniary penalties may attach in case of a breach, including concerning knowingly involved individuals.

What Does This Mean For Me?

If one of your employees is turning up to work late or not doing the work that you usually expect of them, there may be an underlying reason. It is essential to be aware that if the Act protects this underlying reason, then you may be at risk of a general protections claim if you take adverse action against them.

If your employee brings a “general protections” claim against you, the Commission will look at whether one of the protected attributes or activities (e.g. taking reasonable time off for family responsibilities) was the real reason you fired the employee. In this sense, the critical focus for the Commission will be: “why was the employee fired?” was it because of the protected attribute or activity?

You will fall foul of the law if you fire your employee because of one of the protected grounds. However, the  Commission will consider all the evidence surrounding the dismissal, including the employee’s particular circumstances and your reasons for firing them.

For example, you may have fired an employee while they were injured and temporarily away from work because of that injury. However, if their injury and temporary absence were not the reason why you fired them, and in fact, you fired them because they were not doing their job properly, you may be able to argue that you haven’t broken the rules under the Act. However, if their sick leave was one of the reasons for their dismissal (along with their poor work performance), you might be in breach of employment laws. For example, if their decision to take leave was a “substantive and operative” reason for firing them.

If I Should Not Fire Someone Right Away, What Should I Do?

The simple answer to this question is performance management. If your employee is not meeting the expectations of their role, you should consider implementing a process to manage their performance. 

In their performance management plan, you should clearly state the following: 

• how you will manage the employee’s underperformance;
• the time frame for monitoring their performance; and 
• the consequences for failing to meet the targets set out in the performance management plan.

Performance management will help you gather evidence to mitigate the risk of losing against a “general protections” claim. It makes good commercial sense to tackle underperformance head-on. By meeting with the underperforming employee to understand why they are not doing their job properly, you can implement appropriate measures to ensure they complete their work efficiently. Ultimately, the longer you leave the issue, the more likely it will impact the productivity of the wider workplace.

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What Does Managing Someone’s Performance Involve?

The Commission has published guidelines about the best way to deal with underperforming employees. If you are unsure where to start, you should review these guidelines and adapt them to your particular workplace and the circumstances of the employee in question.

The best way to improve performance includes:

• identifying  and analysing the problem (e.g. consider why your employee is unmotivated to fulfil the requirements of your role);
• meeting  with the employee in private, where you give them a chance to explain why they have been underperforming; and
• jointly developing a specific plan to improve performance, such as by introducing flexible arrangements for someone with significant career responsibilities.

As an employer, you might also consider providing additional training to your staff members to help improve their performance. 

What Happens If My Employee’s Performance Does Not Improve?

If your employee has failed to meet their targets in their performance management plan, you might hold another meeting with the employee or issue an additional warning. You might need to take disciplinary action if you cannot change their employment duties or provide additional training.

However, before you take disciplinary action, you should ensure that you:

• have a valid reason that relates to your employee’s workplace conduct; 
• follow a fair process that includes issuing your employee with a warning and giving them reasonable time to improve their performance; and 
• consider seeking independent legal advice from an experienced employment lawyer. 

Key Takeaways

Underperformance is when an employee is not doing their job properly or behaves in an unacceptable way at work. While underperformance can provide grounds for dismissal, this should be your last resort. You could face a General Protections Claim with the Fair Work Commission if you dismiss your employee for the wrong reasons. 

• take steps to identify why your employee is unmotivated to fulfil the requirements of the job role;
• meet with the employee in private to give them a chance to explain why they have been underperforming; and
• jointly develop a performance management plan to improve performance. 

If you have any questions about dealing with an underperforming employee, LegalVision’s experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

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