Managing under-performing employees is a complex and often fraught process, and many employers have been surprised to find themselves on the receiving end of a bullying claim after undertaking what they believed to be reasonable management action.

So, how should HR approach the thorny question of appropriately and sensitively managing an under-performing employee at their organisation?

According to Lander & Rogers Partner Julian Riekert, there are two key things that HR professionals should keep in mind. "First, you need to identify the poor performance that you're trying to remedy, and second, you need to address it using a structured and well-prepared process.

"Identifying the reasons behind an employee's underperformance and then assessing the problem are absolutely vital in preparing to have a conversation with the employee about it. You need to discuss concrete examples that highlight the employee's underperformance—it is not enough to simply say, for example, that they're not as productive as their colleagues or that they're not a team player."

Special Counsel Cassie Brain said that. "If a claim of bullying is made by an employee in relation to performance management, the HR team has to demonstrate that it followed a well-established performance management process. With our clients we use a seven-step process, starting by properly identifying the actual issue and then running through all the stages of escalation an employer may potentially cover when managing an under-performing employee, concluding with appropriate action/s that can be taken once all other measures have been explored."

According to Brain, there is a long-held misconception that an Australian employer must give three warnings before dismissing an employee. "As a general principle, this is incorrect. Obviously some enterprise agreements contain provisions that require employers to adhere to this, however unless your organisation's enterprise agreement, or one of your policies or procedures specifically provides for 'three strikes', it is not a legal requirement enshrined in Australian industrial law."

Riekert's words of advice for employers and their HR team are to, "Remember that if a claim is brought, the decisions of all involved in the process will be scrutinised by a court or tribunal—or worse—the media! Check your blind spots, verify your facts and look for weaknesses—do you have evidence to substantiate every decision? Have you followed all relevant industrial agreements, policies, procedures and written employment agreements? And above all, make sure that you document the process.

"As an employer in this position, it is important to remember that you are not the bad guy—you are addressing a performance issue in the hope of resolving it before it reaches crisis point," he added.