Skip to content

Dangers of General Protections – 5 tips to traverse legitimate performance management amongst a sea of employee complaints

Dangers of General Protections – 5 tips to traverse legitimate performance management amongst a sea of employee complaints

Legitimate performance management because of an employee’s work performance can be a long process.

However, it is integral to do so, as performance management is about looking for improvement in performance of an individual employee.  Yes, it also provides procedural fairness and natural justice but for many giving employees a chance to understand the standards and targets required so they can reach and surpass expectations is what we all hope.

In saying this, there are also times where legitimate performance management is complicated and intertwined with bullying complaints, safety complaints, illness and issues about general working conditions.

A recent example

The case of Forde v Asphalt Labour Hire Pty Ltd [2024] FedCFamC2G 1381 provides an example of where a convoluted working relationship can still be traversed and lead to a positive outcome for the Employer.

Carl Forde was employed by Asphalt Labour Hire Pty Ltd from 8 November 2017 to 28 July 2023. He claimed that during his employment, he was subject to adverse action in contravention of sections 340 and 351 of the Fair Work Act 2009 (Cth). Mr Forde’s employment terms were governed by the Roadsafe Asphalt Enterprise Agreement (Asphalters) 2021. He started as a Small Patch Crew member and was later promoted to Foreman in March 2022.

Mr Forde made several complaints during his employment, including:

  • A travel allowance complaint in February 2021 (TA Complaint)
  • A safety complaint following an injury in May 2021 (Pit Injury Complaint)
  • Complaints about the expiry of first aid certificates in September 2021 and April 2023 (First Aid Certificate Issue)
  • A complaint about working conditions on a freeway in March 2023 (Freeway Conditions Complaint)
  • A bullying complaint against another employee in June 2023 (Bullying Complaint)

Mr Forde received a ‘Letter of Concern’ on 22 May 2023 (Warning Letter 1) due to issues with training employees and completing administrative tasks. Mr Forde’s employment was terminated on 28 July 2023 due to alleged job failings and unsatisfactory performance.

Employee’s arguments for a breach of General Protections

The Court found that Mr Forde exercised workplace rights when he made the TA Complaint, Pit Injury Complaint and the Bullying Complaint.

The Court concluded that the adverse actions taken against Mr Forde included his dismissal from employment and the issuance of a warning letter.

However, the Court determined that the decision to terminate Mr Forde’s employment was based on his work performance and not because of his complaints or inquiries, family or carer’s responsibilities, or mental health disability.

The Court found the following:

  • Mr Forde failed to establish that he had a mental health disability. There was insufficient evidence of an identified disability or its manifestations.
  • The decision-makers acted on genuine concerns about Mr Forde’s work performance in dismissing him and issuing warning letters, not because of any complaints or inquiries he had made.
  • There was no evidence that Mr Forde was dismissed or issued warnings because of his family or carer’s responsibilities.
  • The evidence supported Employer’s contention that Mr Forde was dismissed and issued warnings due to documented performance issues.

5 Key Learnings from Forde v Asphalt Labour Hire Pty Ltd [2024] FedCFamC2G 1381

Here are 5 key learning for Employers and Human Resources.

  1. Employers must ensure that any adverse action taken against an employee, such as dismissal or issuing warning letters, is based on documented and genuine performance issues rather than any complaints or inquiries made by the employee (if that is of course the reason for the dismissal). In this case, the dismissal of Mr Forde was found to be due to long-standing and documented concerns about his performance and conduct, not because of his complaints or inquiries
  2. It is crucial for employers to clearly identify and document the decision-makers involved in any adverse action against an employee. The court found that Mr Mantinaos and Mr Kurt were the decision-makers in Mr Forde’s dismissal, and their reasons were scrutinised to ensure they were lawful.
  3. Employers should maintain thorough and contemporaneous records of performance issues and the reasons for any adverse actions taken. Mr Kurt’s preparation of a document summarising the reasons for Mr Forde’s dismissal, which referenced specific job performance issues, was significant in demonstrating the legitimacy of the dismissal
  4. Employers must address and document any complaints or inquiries made by employees, ensuring that these are not the basis for any adverse action. The court found that Mr Forde’s various complaints and inquiries were not the reasons for his dismissal or the issuance of the Warning Letter.
  5. Employers should ensure that any warnings or disciplinary actions are clearly communicated and documented, specifying the performance issues and the potential consequences if improvements are not made. The firs warning letter issued to Mr Forde was found to be a legitimate action based on his failure to train his team members properly.

Our Employment Lawyers at South Geldard Lawyers have essential expertise in preventing these issues occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on 1800 329 448 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au.  All Employers receive an obligation free consultation.