Fair Work Centre — For Employers
Performance management done properly protects your business and gives struggling employees a genuine chance to improve. Done poorly, it becomes the centrepiece of an unfair dismissal claim.
The Problem
The Fair Work Commission consistently applies the same test when reviewing performance-based dismissals: was there a valid reason, and was the process fair? Both elements are assessed against the standards set out in the Fair Work Act 2009.
If an employee was never told clearly what “good” looked like, or how they were falling short, the Fair Work Commission is unlikely to find their eventual dismissal was fair.
A performance improvement plan on paper isn’t enough — employees need a realistic timeframe, clear support, and a genuine chance to meet the standard before termination.
Managing one underperforming employee strictly while ignoring the same issue in others opens the door to discrimination or unfair treatment claims.
Verbal warnings that are never followed up in writing are effectively invisible if a dismissal is later challenged — memory alone won’t hold up as evidence.
How We Help
Fair Work Centre helps Australian employers build performance management processes that give employees a genuine chance to improve — while properly protecting the business if termination becomes necessary.
How It Works
Call 1300 161 828 or book a free initial advice call before your next review meeting.
We help you set expectations and build a documented improvement process.
Get a fair, well-documented process — whatever the ultimate outcome.
A short advice call now can prevent a costly unfair dismissal claim later.
Membership
Common Questions
There’s no fixed legal number, but the Fair Work Commission generally expects at least one clear, documented warning that identifies the specific issue and a genuine opportunity to improve before dismissal. More serious or repeated issues may need more than one warning.
A solid PIP includes specific, measurable performance expectations, a realistic timeframe to improve, what support the employer will provide, and clear consequences if the standard isn’t met. It should be reviewed and documented at regular checkpoints, not just issued and forgotten.
Generally no, unless the failure is serious enough to amount to misconduct (such as a significant safety breach). Ordinary performance issues require a warning and improvement process first — skipping straight to dismissal is one of the most common reasons claims succeed.
If the PIP was genuine, well-documented, and gave a realistic opportunity to improve, dismissal at the end of an unsuccessful PIP is far more likely to be considered fair. The quality of the process matters just as much as the final decision.
You need a consistent standard and process, even if individual circumstances differ. Applying performance standards inconsistently across similar situations is a common trigger for discrimination or unfair treatment claims.
No — they’re legally distinct. Performance issues generally require a supportive improvement process, while misconduct may justify a disciplinary process or even summary dismissal in serious cases. Treating the two the same is a frequent and costly mistake.
No. Fair Work Centre is an independent private advisory service for employers. We are not associated with or authorised by the Fair Work Ombudsman, the Fair Work Commission, or any government authority.
Fair Work Centre is an independent private organisation providing advisory services to employers only. It is not associated with or authorised by the Fair Work Ombudsman, the Fair Work Commission, or any government authority.
Speak to an Employment Lawyer at Fair Work Centre
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