A draftsperson who refused to take part in a performance review process and refused to cooperate with HR was validly dismissed, the Fair Work Commission has ruled.

The employee had repeatedly claimed that his job performance was “good enough” and that the actions of management and HR amounted to a witch hunt and an attempt to deny him a pay increase.

Facts of case

After about six months of employment, the employee was told at a probation review meeting that he needed to improve his job performance, with various mistakes and shortcomings pointed out to him. These comprised both technical shortcomings and interactions with other employees.

The employer claimed that the worker's performance had improved very little since he commenced work. It asked him to sign a performance review form and agree to a performance improvement plan, and said that his pay would not increase until he did so. After he repeatedly refused to do so, he was dismissed about two weeks later.

The employee had demanded to be left alone and insisted that his performance was “good enough”. He accused the HR manager of victimising him and other work colleagues of bullying him, giving the latter as the reason why he avoided communicating with them.

He claimed that he refused to sign the performance review documents because he believed the employer would use them to deny him a pay increase and to dismiss him. His employment contract provided for the pay increase upon satisfactory completion of probation.

Decision

The FWC upheld the employee’s dismissal, giving the following reasons:
 

• The employee failed to back up his accusations of bad faith by the employer, tried to blame others, and refused to try to improve his job performance.
• There was substantial evidence of unsatisfactory job performance.
• The employer had legitimate concerns about his performance and conduct, and followed a procedurally fair process to try to address them.

The bottom line: This employer had legitimate concerns and provable well-documented evidence that the employee’s performance was unsatisfactory and that he was uncooperative. Therefore, its directive that he agree to a performance improvement plan was a lawful and reasonable one, which he refused to comply with. These combined factors provided a “serious” valid reason for dismissal.

Read the judgment

An v Glass Expansion Pty Limited [2020] FWC 1771, 3 April 2020