1. Unfair performance reviews
1. Unfair performance reviews
Unfavourable performance reviews are often upsetting, even when fair. However, being the subject of an unfair performance review presents specific challenges for executives and employees.
For someone who senses being the target of an unfair performance review, common concerns may relate to:
- Bias or perceived bias by a manager;
- Undue weight given to isolated or ‘one-off’ issues;
- Inadequate weight given to measurable achievements;
- Vague concerns that are not properly identified;
- Unequal treatment and opportunities; and,
- Lack of transparency about ratings and information sources.
If you receive an unfair performance review at work, taking the time to understand your options and how to respond can be a good first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible. Without professional support and guidance, people can sell themselves short by not doing all that can to respond to an unfair performance review.
Key Questions:
Can an unfair performance review be a sign of workplace bullying?
Workplace bullying occurs when one worker repeatedly behaves unreasonably towards another worker, which creates a risk to health and safety. The risk of work-related bullying is increased when managers are unpredictable, afford little decision-making amongst employees, and provide little constructive feedback and direction. The risk of an employee being singled out, disrespected, belittled, or the subject of bad faith decisions is heightened in such environments. An unfair performance review may be evidence of workplace bullying if it falls into this category.
It is important to keep in mind that workplace bullying involves repeated conduct. Also, it is to important to keep in mind that ‘reasonable management action’ is a complete answer to workplace bullying allegations. Reasonable management action is only protected if carried out “in a reasonable manner”. As such, if an unfair performance review is considered ‘unreasonable’ based on the evidence, and the employee has been subject to other unreasonable conduct by their manager, an unfair performance review may be a sign of workplace bullying.
Can a negative performance review be disputed?
Many businesses and organisations have rules or guidelines addressing performance review processes, which may outline how a performance review can be disputed. Such frameworks may come from particular laws, industrial instruments, employment contracts, or internal policies and procedures. A failure to follow such rules may open up a basis to challenge a negative performance review.
What is a performance improvement plan (PIP)?
A performance improvement plan (PIP) is a written document that outlines key performance criteria, how an employee is not meeting expectations, and what steps are necessary to improve their performance. If performance does not improve in a reasonable time, employers generally signal that disciplinary action will be taken.
In Australia, the Fair Work Act 2009 (Cth) creates an expectation that employees will be given a fair opportunity to address performance concerns. Employers often use the implementation of a PIP, and the failure by an employee to adequately address underperformance, as a way of justifying dismissal decisions.
2. Responding to unfair performance reviews
2. Responding to unfair performance reviews
There is no ‘template’ response to unfair performance reviews
There is no template response to an unfair performance review. All responses should factor in the particular legal framework that applies to the workplace, the information and nuances involved in the performance review, and individual circumstances.
While there are many different approaches a person may take when faced with an unfair performance review, it often boils down to three thoughts:
- Accept the review and address the areas of concern
- Dispute the review to try to have it changed
- Begin looking for another job
1. Accepting the review
Accepting an unfair performance review may be what some people decide is their best choice. When people feel uncertain about their ability to raise concerns, or, perhaps, the validity of those concerns, not seeking to ‘ruffle features’ can seem like a safe decision. There may be hope that the performance concerns can be addressed. While there may be potential benefits to accepting a negative review, there are potential risks, including:
- being placed on a performance improvement plan (PIP)
- increased difficulty in later disputing the review as unfair
- decreased prospects of promotions and bonuses
- possible continuation of unreasonable decisions or conduct
- added evidence for disciplinary decisions in the future
While accepting an unfair performance review may prevent any immediate disputes, one possibility is it weakens the employee’s position and job security, exposing them to potential adverse decisions in the future.
2. Disputing the review
Disputing the performance review may refer to matters going to procedural fairness or the accuracy of the ratings.
A workplace may have rules about conducting performance reviews. If a manager fails to follow the process properly, it can open up a basis to dispute the result. There can sometimes be sound reason to argue that procedural fairness has been denied in such circumstances. Sometimes, managers make mistakes concerning data, overlook an important contribution, or do not consider necessary context.
Deciding to dispute an unfair performance review is obviously a big decision. While it can lead to an unfair review being set aside or amended, there are risks involved. Obtaining advice on how to dispute a review can be a critical step to ensure your response is strategic and advances your interests.
3. Looking for another job
Sometimes, following an unfair performance review, people may simply start looking for another job. One thing that some people try to control is the reputational damage from a negative review. Instead of simply resigning, it can sometimes be possible to engage in ‘without prejudice’ negotiations to resolve a dispute over an unfair performance review. It can see an employee reach a commercial settlement with their employer, affording the employee the resources, time, and space to pursue other opportunities.
The benefit of negotiated resolutions
When faced with an unjust situation, it is understandable why you may wish to be vindicated. We all like to be right. However, workplace disputes create real risks for both employers and employees. Sometimes after working through both the risks and rewards of different options, reaching a negotiated settlement to a dispute can start to look attractive to both sides – it’s the bird in the hand instead of the two in the bush.
Sometimes, resolving contested performance issues on confidential terms is possible. While not a ‘win’, it can give an employee facing negative reviews or performance management an ‘exit lane’ away from a protracted fight. Where appropriate, such settlements can afford reputational protections and commercial terms that make it financially viable for the departing employee to exit the workplace.
Initiating confidential ‘without prejudice’ negotiations with an employer is generally undertaken by a lawyer on behalf of an employee. Power imbalances may otherwise impede discussions between the employer and employee, particularly at a time when an employee has received an unfavourable performance review.
Confidential settlements are not always possible
While confidential negotiations and settlements are not always possible or appropriate, their use as a complementary strategy in trying to resolve disputes can see quick resolutions to situations that may otherwise take months to resolve. Handled incorrectly, allegations of contractual breaches, or worse, can be made.
Seeking to reach a mutual agreement or negotiated settlement generally requires a clear understanding of your legal rights, obligations and options. Agreements of this kind often involve certain guarantees, indemnities or waivers, which can have real consequences when breached. Again, this highlights why it is prudent for ‘without prejudice’ negotiations to be handled with care and with the benefit of legal advice.
3. Unfair performance management
3. Unfair performance management
Following an unfavourable performance appraisal, an employee may be the subject of performance management, including a performance improvement plan (PIP). Unfair performance management stacks the cards against you. Instead of using performance management to improve outcomes, it gives legitimacy to termination of employment.
If you face performance management, caution is necessary in setting expectations. Unfair performance management can involve a range of issues, including:
- Unreasonable performance expectations
- Unequal treatment in setting performance standards
- Vague performance criteria (i.e., opinion driven)
- Unachievable and inflexible timelines
- Targets set with no employee consultation
If you believe you are being set up to fail, you may be the subject of unfair performance management. While PIPs may be an effective tool for managing underperforming employees, inapt or unfair plans can do the opposite of their stated purpose. As an employee, challenging unfair performance management can be difficult. Seeking advice and guidance from a lawyer or union representative can ensure your rights are protected.
Dismissal from a workplace can have far-reaching consequences. It can impact your reputation, livelihood, and financial security. For this reason, it is prudent for people to get legal advice when faced with unfair performance management.
4. The role of a lawyer in responding
4. The role of a lawyer in responding
Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact unfair performance management can have on a person. This firm helps to defend executives and employees who face an unfair situation at work and wish to act against it.
Facing performance concerns at work is a serious matter that can have significant consequences on your employment and professional reputation. While it may be tempting to handle the response independently, hiring a lawyer to assist you in responding may be a prudent decision for several reasons.
1. Legal expertise and knowledge
A lawyer brings extensive knowledge of employment law and the legal frameworks governing workplace disputes, including performance management concerns. This expertise can help you understand your rights and your employer’s obligations, ensuring that your response is both legally sound and strategically effective.
2. Tailored and strategic responses
Lawyers are skilled in crafting tailored responses to problems. They can highlight procedural flaws, present mitigating factors, and provide evidence that supports your case. Their ability to provide strategic legal advice can significantly enhance the soundness of your decisions, potentially preventing any missteps.
3. Navigating complex issues
The legal implications of performance issues can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. This includes understanding the potential outcomes, knowing when to negotiate for a settlement, and recognising when to escalate the matter to a legal tribunal if necessary.
4. Profesional communication
Facing allegations of underperformance at work is inherently stressful. The potential threat to your livelihood can be unsettling. A lawyer can alleviate some of this stress by aiding communications with your employer, advising you on your rights, and providing a clear path forward.