We all try and see the best in people, right? We have been told
that if you compliment and encourage people their behaviour will
improve, correct? So, shouldn't a performance review emphasise
the positive to get the best out of your staff? Yet, in a recent
decision of the Fair Work Commission, an employer was penalised for
not being more brutally honest in performance reviews.
In this case before the Fair Work Commission, there had been a
long history of negative attitudes and behaviours by two employees.
The employer allowed this to be handled "informally" by
line managers over a number of years. There were no
"formal" disciplinary processes to deal with
this negative attitude. Further, over a course of a number of years
the employees had been assessed as being "satisfactory"
by the employer in repeated performance reviews.
Finally, after many years, the team leader recommended the
behaviour of the two employees (i.e. their persistent negative,
hostile and aggressive behaviour in team meetings) be
Subsequent to this investigation, the employees were terminated.
However, both employees lodged unfair dismissal applications.
In response, the Fair Work Commission found against the company
and ordered the reinstatement of the two employees, despite a long
history of a negative attitude by them.
There are a number of reasons for the reinstatement.
However, a fundamental problem for the employer was that in
their annual performance reviews of the two staff, the line manager
did not document the employees' persistent negative attitude.
Accordingly, the Commissioner was happy to rely upon these
performance reviews as assessing the employees as
The lesson from this case is that if there are issues with the
employee's conduct, even though you want to bring out the best
in them, it is critical that you raise such poor behaviour with the
staff member during performance reviews and document it in written
form. If you fail to communicate their deficiencies to a poorly
performing or improperly behaving employee, it may well come back
to haunt you, if you subsequently move to terminate their
In short, honesty is the best policy in performance reviews.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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