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Performance improvement process: employer got it right

A tribunal has rejected an employee's unfair dismissal claim.
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Performance improvement process: employer got it right

Performance improvement process: employer got it right

2 October 2020

By Mike Toten

A tribunal has rejected an employee's unfair dismissal claim, finding that an employer’s performance improvement and dismissal processes were “properly instituted and undertaken”.

Facts of case

Technology company Nokia had employed a 60-year-old technician for about six years, who supervised a telephone exchange site for one of its major clients. Nokia received several complaints about his work, including: having an “abrasive” manner, issues with attendance, sleeping in his office, having a very untidy office (backed up with photos, and likened by a Nokia manager to a “boy’s bedroom”), playing games on his phone, not completing some maintenance tasks such as cleaning and compliance, and insulting the English-speaking skills of Nokia employees in India.

When the complaints continued, his manager contacted Nokia’s HR department.

It proceeded as follows:
  • Investigated several of the complaints, then issued a first written warning
  • placed the employee on a Performance Improvement Plan (PIP) that identified three objectives: (1) attitude and professional behaviour, (2) productivity, and (3) focus on job-related activities. Measurement criteria included: no complaints re attitude or use of phone for personal matters, meeting work deadlines (eg for reporting) and 100% attendance when required to be at work. The PIP set dates for future reviews on progress.
  • When a co-worker complained about the condition of his office about one month later, he received a final written warning.
  • When Nokia received a complaint that the employee had removed underfloor cables and equipment without the client’s permission (he had requested it but not received it), it investigated the matter, concluded that a serious breach of procedure had occurred, then dismissed him.
  • The PIP existed for more than a year, during which Nokia held several meetings with him to discuss performance. It noted improvement in some respects, but no change in others.
  • Nokia clearly notified him of the reason it was considering his dismissal, gave him an opportunity to respond to it, and clearly considered his response before making its decision.

The employee claimed as follows:
  • Re sleeping in his office and using his phone for personal matters – he often had to work 18-hour days without breaks (on average, once a week), yet also had a lot of free time while on the job. The PIP included setting out some work duties (such as safety-related matters and completing reports) that could be done during his “down time”). He provided evidence that he had suffered from a sleep disorder and had required surgery to overcome it.
  • He admitted that the final incident that led to dismissal was a mistake.

Re the messy state of his office, the FWC concluded that the employee had become apathetic about it, and it indicated that he did not care about his obligations to customers.


The FWC found that the PIP had not been harsh or over-critical. The employer had a valid reason to dismiss the employee relating to both job performance and conduct, and had met its requirements to implement the dismissal fairly. The employee had more than one year to improve his performance and conduct, but continued to attract complaints from others. The FWC rejected the employee’s claim.

The bottom line: As the FWC has endorsed this employer’s approach to dismissing an employee fairly, other large employers are advised to note and adapt the processes it followed.

Read the judgment

Hogendorn v Nokia Solutions and Network t/a Nokia [2020] FWC 4476, 25 August 2020

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