One of the most challenging issues any manager can face is managing an underperforming employee who seems more interested in avoiding accountability than improving their performance. In some cases it can consume a large portion of a manager's time and mental energy.
Sometimes entrenched underperformance is a product of what has gone on before you as manager. The employee has been allowed to under-perform because of previous avoidance of the issues. You're left to try to turn things around. Sometimes you can but sometimes it doesn't seem possible.
If you have come to the point where a formal underperformance process is required, a recent case from the Fair Work Commission is instructive.
The case - Suncorp v Burke - clearly supports what many would consider reasonable steps to respond to an employee who is not willing to take accountability for their performance.
In this case the employee had under-performed for several years and had failed to respond appropriately to a series of action plans developed to provide him with clear direction around what needed to change.
Whilst the period of under-performance was protracted and interrupted with periods of absence, Suncorp didn't drop the ball or put it in the too hard basket. They diligently monitored the employee's performance and behaviour on an ongoing basis, providing feedback in a timely and fair manner and providing clear instructions about what needed to change at appropriate stages throughout the employee's tenure.
Suncorp certainly can't be accused of being hasty. Suncorp gave the employee plenty of time to lift his game. The employee's underperformance was addressed with four official documented action plans over a two and a half year period but none had the desired effect of facilitating sustained, improved performance. The length of time from feedback to warnings and notice of dismissal was sufficient had the employee been serious about improving his performance.
What often brings employers undone from a cultural perspective is when there is a disconnect between what leaders say and the actions they take, or fail to take. If you are serious about addressing underperformance you have to be prepared to issue the warnings and pull the trigger on the dismissal when the situation warrants it. Failure to do so sends a message to employees that underperformance will be tolerated and undermines the ability for leadership across the organisation to gain the followership required to achieve the core strategic objectives.
Suncorp must have had some doubts about whether the case would be successful but they backed themselves and committed to the course. In this case it was the appropriate thing to do.
What has heartening from an employer's perspective was that the presiding officer recognised the legitimacy of the actions taken by Suncorp and was not prepared to accept the unsubstantiated assertions of the employee. Throughout the hearing the employee made a lot of claims but when the presiding officer dug deeper he found most had no basis, lacked supporting evidence or that the employee had failed to follow through on his intentions during the employment period. The presiding officer's assessment of the case supports employers who seek to pursue dismissal in the face of unsubstantiated or spurious claims by an employee.
It is also encouraging that the presiding officer references the four action plans and that "notwithstanding that Mr Burke may have successfully completed the outcomes in the Action Plans...he subsequently engaged in exactly the same conduct that had been the subject of previous action plans". Managers often tell us that successful completion of an action plan by an underperforming employee takes the organisation back to square one if the performance subsequently relapses. The consideration of the presiding officer counters that view.
Unfortunately for Suncorp despite doing so many things right it was what they didn't do, according to the presiding officer, which resulted in the dismissal being deemed unfair.
The presiding officer felt "insufficient effort was expended on considering whether whatever health issue he was suffering was impacting on his work performance". Suncorp would be wise to at least question this decision. They did request medical information from the employee but he refused to provide it. Given the volume of claims put forward by the employee as to why his underperformance was not his fault - claims the presiding officer, and Suncorp presumably, deemed to lack substance - it is likely Suncorp thought his claim of depression was yet another spurious one. An appeal could very well lead to a changed result where the appellate court rules that the refusal to provide medical evidence made it impossible to determine whether the employee's claims could be substantiated and that, as such, Suncorp had no obligation to take it into account in its decision to dismiss.
In the presiding officer's view Suncorp didn't do enough to genuinely enquire about the employee's mental health, determine whether there was a genuine issue, and explain to the employee that medical information was required to help them make reasonable adjustments to the workplace to accommodate him and give him the best chance of being successful in the role. Whilst some may see this as a harsh ruling given Suncorp had asked for medical information, it is a directive to organisations to tune in intently to signs of mental ill health in the workplace and engage with employees in a manner that shows empathy and genuine intent to understand whether mental ill health is present and impacting performance.
What this decision also does is provide employers with the confidence that they can continue to press go on warnings and dismissal in situations where there is:
a) sufficient evidence of underperformance that shows no signs of improving despite sufficient time for the employee to change and clear instruction about what needs to change.
b) a lack of evidence of any mitigating factors preventing the employee from performing to the required level.
c) sufficient evidence that the employer has sought to understand all of the factors that could be influencing underperformance and has taken reasonable steps to accommodate those factors where evidence is found.
The reticence of many organisations to follow through on underperformance is understandable but often the concern is overblown. The potential ‘damage’ in terms of cost or reputation must be weighed up against the potentially substantial hit to performance and culture of allowing poor performance to fester. Although ultimately Suncorp lost the case, the damage was negligible and clear support was offered to all but one aspect of the Suncorp approach. This is heartening for those organisations dealing with significant underperformance.