Conventional wisdom has it that to have a chance of winning an unfair dismissal case, employers need to have every single issue, discussion, HR meeting and counselling session documented within an inch of its life. But that isn’t necessarily so. 

A large employer recently won a case after it demonstrated to the Fair Work Commission (FWC) that it had chosen an informal method to an employee’s performance management. Rather than adopt the standard approach of constantly threatening the employee with the sack if he failed to improve, and documenting each session for posterity, his managers frequently showed him the way to do things and, at a personal level, told him what the company’s expectations were. 

Only after a period of nearly a year of this did management lose patience, formally documenting a performance improvement process. At this juncture the employee’s response was to act as if everything that had been done informally beforehand, hadn’t occurred.  

When there was no immediate improvement, the employee was dismissed.  

The FWC accepted that the employer had tried, via informal means, to improve the employee’s performance. Most importantly, the FWC said “While useful from an evidentiary perspective, performance management need not occur in a formal documented manner in order for an employer to rely on it as the basis for the termination of an employee’s employment on the grounds of poor performance.” 

It is true that the employer was obliged to attend the tribunal and defend its position. No doubt this was disruptive to the business for the time involved. But the informal approach it took to performance management sits more comfortably with many employers than the standard “improve or be sacked” style.  

And the FWC, rather than deprecate that approach, upheld it, based on the honest testimony of those managers who had tried, in vain, to help the employee improve. 

Keeping a record of performance management is good practice, no question. But it is not fatal to any case if this hasn’t been done forensically, as this case ably demonstrates.  

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