The Fair Work Commission found that the decision to terminate the employment of Cindy Choi (employee) due to her unwillingness to participate appropriately in the performance management process was not harsh, unjust or unreasonable in accordance with s 387 of the Fair Work Act 2009 (Cth) (FW Act). The employer issued the employee with a letter advising that they had decided to terminate her employment due to unsatisfactory performance. The employer claimed that the employee engaged in behaviour that was not to an acceptable standard, such as raising her voice to other employees and ‘slamming doors’. The employee had previously complained that the criticism of her performance was part of a bullying process by her managers. The employee also alleged that she was “constantly criticized, was faced with a number of attempts to sabotage her work, was isolated…and was subject to unfounded negative accusation and innuendo and sarcasm” making her dismissal harsh, unjust and unreasonable.

With regard to section 387 of the FW Act, Commissioner Roe was satisfied that that the employee’s performance was unsatisfactory, the Respondent had notified the employee of these concerns and despite adequate opportunities to improve her performance, the employee’s performance remained unsatisfactory. Commissioner Roe noted that although the employee had a high level of technical competence, was diligent and was committed to her employer, her performance was still unsatisfactory in that she responded inappropriately to feedback and direction from her managers. In an independent investigation conducted by her employer, the finding was that the behaviour of the employee’s managers could not be characterized as bullying. Commissioner Roe therefore found that the employer had not dismissed the employee in a way that was harsh, unjust or unreasonable.

The case illustrates that employees are required to respond appropriately to feedback and directions from managers. Commissioner Roe noted that “just because performance management is stressful does not make in inappropriate or unfair”. As long as the Court is satisfied that an employee’s performance has been unsatisfactory, that they have been made aware of this, and that they have been given a reasonable opportunity to demonstrate improvement, termination will not be harsh, unfair or unreasonable.