Managing underperformance comes with legal risks because Australian Parliaments protect employees from unfair and unreasonable disciplinary action

This means that your employees have legal rights that allow them to challenge the way they are treated in relation to performance issues.
We have developed a clear program that supports you to:

  • Understand the legal risks involved in managing under performance
  • Develop a legally effective performance management process; and
  • Put other relevant policies and procedures in place to minimise your legal risk when managing underperforming employees

Step One:
To effectively and legally manage an employees performance, you must be able to understand whether you are dealing with underperformance or misconduct.


  • Failure to meet sales targets
  • Inability to properly communicate to customers or employees
  • Failure to meet deadlines
  • Failure to perform required tasks to an acceptable standard, eg writing letters poorly with spelling mistakes when letter writing is a large part of the job; and
  • failure to complete required paperwork.

Misconduct usually involves deliberate or intentional behaviour in contravention of a particular standard of conduct or behaviour in the workplace.
For example;

  • sexual harassment;
  • issuing false medical certificates;
  • consistent absenteeism; and
  • working in an intoxicated state.

Performance Management TIP

Managing under performance incorrectly can result in legal action being taken against you. Employees have four key statutory protections available to them;

  • Unfair dismissal
  • general protections
  • anti-discrimination laws
  • the Fair Work Act anti-bullying scheme

Flowchart on whether your employee can make an unfair dismissal claim