I have been placed on a PIP and have been given unachievable targets. I feel like I have been set up to fail. What are my rights?

I have been placed on a PIP and have been given unachievable targets. I feel like I have been set up to fail. What are my rights?

Performance Improvement Plans and the Fair Work Act 2009 (Cth):

Occasionally employees find themselves in a situation whereby their employer places them on a Performance Improvement Plan or PIP. While the Fair Work Act 2009 (Cth) does not provide for PIP’s directly, you may be protected in the event of an unfair dismissal,[1] and other workplace rights such as making a complaint or inquiry in relation to your employment.[2]

The Fair Work Ombudsman provides a guide for managing under performance which includes the following steps for employers:

  1. Identify the problem
  2. Assess and analyse the problem: you should be advised of a meeting ahead of time to allow you to prepare and to organise a support person or union representative to be present.
  3. Meet with the employee to discuss the problem: you should walk away from a meeting understanding ‘what the problem is, why it is a problem, how it impacts on the workplace, and why there is a concern.’
  4. Jointly devise a solution: ‘where possible, it is important that a solution is jointly devised with the employee.’
  5. Monitor performance.[3]

If a PIP does not follow these guidelines:

Ideally, a PIP should be in place to give employees an opportunity to improve their performance over a period of time.  A PIP should clearly show the areas where you can improve, a timeframe for improvement and steps you can take to get there.[4]  If you believe the expectations set through the PIP are unreasonable, you have the right to make a complaint or inquiry in relation to your employment. Making a complaint or inquiry is considered a protected workplace right, this means it is unlawful for your employer to take adverse action against you for exercising your workplace right.[5]

Warnings and Unfair dismissal:

Although a PIP is not in itself considered a warning, official warnings can often follow a PIP; especially one where the targets are unreachable. A dismissal is considered unfair if it is ‘harsh, unjust or unreasonable’ inter alia.[6] The Fair Work Commission will consider ‘whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal.’[7] It is important to note that there is no legal requirement which states how many written warnings an employee must receive prior to dismissal for poor performance. The Fair Work Commission notes, however, that ‘industrial tribunals over the years have consistently upheld unfair dismissal claims where an employee has not had an opportunity to respond to performance concerns or improve their performance over a reasonable period of time.’[8] Additionally, your employer may have specific steps in place in your EBA that relate to performance management procedures, which might go above and beyond the requirements at common law.

Previously the Commission has upheld a decision whereby the employee was dismissed for poor performance, and the employer had ‘pre-prepared a script.’ The Commission held that this suggested a pre-determined outcome for the employee and described the meetings as a ‘mechanical process.’[9] If you believe that you are being set up to fail through your PIP and it’s just one more step in a pre-determined process to push you out, you should seek further legal advice.

General protections

A PIP would generally be considered to adverse action within the meaning of section 342(1) of the Fair Work Act 2009 (Cth) and accordingly cannot be implemented for a prohibited reason, such as pregnancy.

If you feel that a PIP has been implemented for an improper purpose you should seek legal advice.

[1] Fair Work Act 2009 (Cth)

[2] https://www.fairwork.gov.au/employee-entitlements/protections-at-work

[3] https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/managing-underperformance

[4] https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/managing-underperformance

[5] https://www.fairwork.gov.au/employee-entitlements/protections-at-work

[6] Fair Work Act 2009 (Cth) s 385(b)

[7] https://www.fwc.gov.au/unfair-dismissals-benchbook/what-makes-dismissal-unfair/warnings-unsatisfactory-performance

[8] https://www.fwc.gov.au/unfair-dismissals-benchbook/what-makes-dismissal-unfair/warnings-unsatisfactory-performance

[9] https://www.fwc.gov.au/unfair-dismissals-benchbook/what-makes-dismissal-unfair/warnings-unsatisfactory-performanceJohsi v Panasonica Australia Pty Ltd [2010] FWA 2946.

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