In the recent appeal decision of Miller v Urban Pedaler [2018] FWCFB 4166, the Fair Work Commission has sent a stark warning to all employers that raising performance issues and informing an employee that they are at risk of losing their employment must be dealt with appropriately.termination notice period unfair dismissal lawyers melbourne

Background of Case

In this case the Employer was found to have given the Employee notice of poor performance as well as notice of suspension of employment on the very same day. The Employee was then summoned to a meeting only 4 days later at which his employment was terminated.

In the Commission’s mind, the Employee had no notice that his employment was at risk before being suspended, and had only 4 days to improve his performance before his employment was terminated. This meant that the Employer could not use the Small Business Code to protect itself from the unfair dismissal claim and therefore the termination was clearly unfair and harsh.

Managing Underperformance

If you need to performance manage an employee, you should ensure:

1. They are on notice that their employment is at risk;
2. They have been given sufficient time to demonstrate that they have improved their performance.

If you need advice and assistance in performance managing or terminating your employee, contact Adam Foster at Lewis Holdway Lawyers on (03) 9629 9629 or