Dismissal process up to scratch when performance was not

In Yang v State of Queensland (Queensland Audit Office) the Queensland Industrial Relations Commission (QIRC) confirmed an employer’s ability to dismiss an employee, and in particular a public service employee, for poor performance. While employees are commonly dismissed for conduct-related issues, it is almost unprecedented for an employee to be dismissed for performance concerns. The matter is significant as there are very few decisions of the QIRC arising from the dismissal of a public service employee for reasons of poor performance.

Facts

Mr John Yang was employed by the Queensland Audit Office (QAO) as an Audit Manager, a PO5 position. He had been employed by the QAO since 6 September 1999 and had tertiary qualifications in auditing.

On 12 February 2016, Mr Yang’s employment was terminated on the basis that he had performed his duties carelessly, incompetently or inefficiently – see section 187(1)(a) of the Public Service Act 2008. Crown Law assisted the QAO throughout the disciplinary process and represented it at the hearing.

Concerns about Mr Yang’s performance were first raised in May 2014 when he was assessed by his supervisor as meeting expectations in only six out of 10 categories and as needing improvement in four out of 10 categories. Conversely, Mr Yang identified only one area in which he needed development. The inconsistency between Mr Yang’s assessment of his performance and his supervisor’s assessment was a running theme in the matter.

The concerns with Mr Yang’s performance were based on:

  • consistent lateness of work, including repeated failure to meet external deadlines;
  • lack of attention to detail, requiring drafts submitted by him to be significantly re-drafted by his supervisor;
  • lack of professional judgment, including in relation to client matters. This was a particular concern, given Mr Yang’s role as an auditor and his supervisory responsibilities.

In late December 2014, with no improvement in his performance since the previous review, Mr Yang was placed on a formal Performance Improvement Plan (PIP). The PIP was initially set for a six-week period, but was extended three time due to Mr Yang’s lack of improvement. The PIP process concluded in April 2016.

During this PIP process, Mr Yang was given the following support:

  • clear instructions in relation to timeframes and expected delivery of work;
  • weekly meetings with his immediate supervisor to discuss his workload and his progress on the tasks allocated under the PIP;
  • extensions of PIP timeframes and reallocation of work to other employees;
  • written feedback in relation to his drafts of audit documents.

Mr Yang’s superiors reported that they spent more time reviewing and correcting Mr Yang’s work than any other employee, especially one of Mr Yang’s experience. The poor quality and, at times, lateness, of Mr Yang’s work imposed considerable additional burden on other employees within his team. Such reports are all too familiar when dealing with matters of poor performance.

On 13 May 2015, Mr Yang was issued with a show cause notice as to why disciplinary action should not be taken against him on the basis of his consistently inadequate performance. In response, Mr Yang filed an application for an injunction of the disciplinary process (which he later abandoned) and also requested further and better particulars of the allegations. This significantly delayed the matter, and a revised show cause notice was issued on 2 September 2015.

On 16 September 2015, Mr Yang’s solicitors responded to the revised show cause notice in relation to Mr Yang’s performance. In the response, Mr Yang:

  • took issue with the PIP process, which he claimed inhibited his ability to improve his performance because he was not given clear standards to achieve to be deemed competent;
  • rejected the assertion that his work was substandard – he argued that it was simply a ‘difference of opinion’ between professional auditors;
  • claimed he had needed to spend a substantial amount of personal time to deal with the additional workload imposed by the PIP process.

Mr Yang’s employment was terminated on 12 February 2016. The QAO dismissed Mr Yang because it considered that there were no other options, including demotion, available in the circumstances. Mr Yang applied to the QIRC for reinstatement, claiming that his dismissal was unfair.

Decision

Deputy President Bloomfield dismissed Mr Yang’s application for reinstatement, agreeing entirely with the QAO’s assessment of Mr Yang’s performance. DP Bloomfield found:

  • Mr Yang showed a broad lack of understanding, skills and knowledge of aspects of auditing.
  • Mr Yang had a ‘disturbing lack of knowledge and general awareness of what all the other witnesses agreed were the fundamental qualities expected of an Auditor’.
  • Mr Yang’s claim that he was not provided with training or coaching was simply wrong. The tasks or requirements allocated during the PIP fell within his normal duties and, accordingly, there was no requirement to reduce Mr Yang’s workload during the PIP.
  • Mr Yang did not have the requisite levels of skill, knowledge, professional judgment and professional scepticism necessary to be an auditor at his previous level, or even lower.

With respect to the suggestion that there was a ‘difference in professional opinion’ between Mr Yang and his supervisor, DP Bloomfield found that Mr Yang’s supervisor’s opinion always prevailed. This finding should give comfort to supervisors and managers.

Lessons for employers

Whilst each matter will turn on the specific facts and circumstances, the decision in Yang should reassure employers that it is possible to dismiss an employee when their performance is consistently inadequate.

In undertaking any performance improvement and subsequent discipline process it is critical that employers do the following:

  • Clearly set performance expectations with employees on commencement and at regular intervals throughout employment.
  • Have regular discussions with employees about their performance, particularly where their performance is not meeting the expected standard.
  • Remember that performance discussions can occur outside of formal performance development. Do not wait for performance issues to escalate before taking action.
  • Keep detailed documents and records of all performance discussions with employees.
  • Ask an employee if there is anything in their personal circumstances that might be affecting their performance, and give appropriate support to the employee if necessary.
  • Engage professional advice at an early opportunity to guide the process.
  • Keep detailed documents and records of all performance discussions with employees. (This one is important so we said it twice.)

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 9 January 2018

Author: Senior Prinicipal Lawyer, Nicola Smith