Performance management in the public sector06 September 2017
The Queensland Government is by far the state's largest employer with more than 212,000 employees – and with so many employees, an effective performance management process is vital.
Public sector employees are regulated by both the Public Service Act 2008 (Qld) (PS Act) or Industrial Relations Act 2016 (Qld) (IR Act), with the Fair Work Act 2009 (Cth) also applying to Queensland Government owned corporations. The legislation sets out requirements on government agencies throughout the performance management process, including around the dismissal of employees. However, case law has also strongly influenced what constitutes an effective performance management process, with public sector employers required to try to improve employee performance before considering termination.
Interestingly though, when it comes to termination, the Fair Work Commission in Mr Robert Etienne v FMG Personnel Services Pty Ltd  FWC 1637 (Etienne v FMG) has determined that formal documentation is not always necessary to prove that an employee's dismissal was fair. So what does (or does not) constitute an effective performance management process?
The PS Act provides the grounds under which a public sector manager can take disciplinary action when an employee has performed his or her duties carelessly, incompetently or inefficiently. It also outlines examples of the types of disciplinary action that can be taken, such as termination, transfers and redeployment, if such action is considered reasonable in the circumstances.
From an employee perspective, the PS Act and IR Act provide important protections from arbitrary dismissal due to process obligations and good faith performance management. If an employer dismisses an employee under the PS Act and IR Act for incompetence, they are required to prove they genuinely believed the employee was incapable of doing their job and there were grounds for believing this.
In doing so, decision-makers must observe two principles – the hearing rule and the rule against bias. The rules require that the employee has been given notice of performance issues and has had a reasonable opportunity to address these issues, as well as that the decision-maker has not been biased in deciding to dismiss the employee.
Ensuring the process is fair
There is solid case law confirming that public sector employers are required to try to improve the performance of their employee before considering termination. Although most workplaces have either scheduled performance review processes during probation or fixed review periods to monitor the performance of employees, it is imperative that such monitoring is not confined solely to a probation or review period.
Performance management should be an ongoing process and employers must demonstrate a high degree of transparency in addressing issues as they arise by having regular discussions with employees. Not only does this minimise legal risk, it assists employees to understand their employer's expectations, reinforces policies and procedures, and reduces attrition.
Additionally, a common issue is the adequacy and formality with which performance management is conducted. Along with the above procedural requirements, employers should ensure they maintain proper records and accurately document each step throughout any disciplinary process.
A lack of a structured and documented training process (and in some cases documented mentoring or performance improvement process) may prevent an employee from fully understanding the employer's performance expectations. Without evidence of structured and documented training, and performance appraisal, a tribunal may also determine that the employer has not provided adequate feedback or instruction to the employee.
Why formal documentation is 'useful'
Although not involving a public sector employee, Etienne v FMG is relevant from a case law perspective as it highlights that in some limited circumstances the absence of a formal written warning may not be required to prove a dismissal was fair.
In this case, the employer, FMG Personnel Services, dismissed an inventory controller who was believed to be "incapable of perceiving or achieving an acceptable level of work performance". FMG was criticised by the applicant for not formally warning him or creating file notes regarding his dismissal.
FMG attempted to assist Mr Etienne through one-on-one informal training before he was placed on an informal performance improvement plan, which FMG believed was the best method of improving his performance. Over the course of a year, FMG consistently communicated its expectations to Mr Etienne and assisted him in trying to achieve them. Eventually, FMG commenced a formal documentation process.
The Fair Work Commission found that "while useful from an evidentiary perspective, performance management need not occur in a formal documented manner in order for an employer to rely on it as the basis for the termination of an employee's employment on the grounds of poor performance".
The case demonstrates that failure to show formal documentation is not necessarily detrimental to employers if they have evidenced communication of expectations and have given the employee an opportunity to improve performance.
The Queensland Government already supports a formal documentation approach in a number of its policies, directives and procedures that manage conduct and performance issues. While not absolutely necessary, formal documentation presents many benefits to both the employer and employee (as outlined above) and it seems unlikely that this won't continue to be a key feature of the Government's performance management process for these reasons.
To this end, and in light of the new IR Act providing public sector employees with the ability to pursue a broader range of claims, including adverse action and bullying claims, lawyers should their ensure clients understand the importance of following performance management systems in order to best protect themselves and ensure a fair capability dismissal. Also, with Etienne v FMG on appeal, it may very well be that the stance on formal documentation changes.
 The performance management process for public sector senior executives and CEO's under employment contracts varies from the performance management process for other public sector employees.