Example clauses relating to management of unsatisfactory performance

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The recent MAC publication Performance Management in the Australian Public Service highlighted that management of poor performance remains a key challenge in the APS. This, together with the Commission's analysis of the provisions included by agencies in their Certified Agreements, indicating that they frequently contain provisions beyond those necessary for effective resolution of cases of poor performance, has led to the Commission, in consultation with a small group of agencies, developing a set of clauses relating to the assessment and determination of unsatisfactory performance.

While there is no requirement to include clauses in Certified Agreements setting out procedures that an agency will adopt in cases of perceived unsatisfactory performance, many agencies have chosen to do so, and these example causes are designed to provide the option of a minimalist but effective approach to the management of underperformance, taking account of the requirements of procedural fairness and the unfair dismissal provisions of the Workplace Relations Act 1996.

Agencies may choose to adopt these examples or to adapt them to their particular needs and circumstances. If you require further information please contact the Helpline on (02) 6202 3859

Example clauses re assessing and determining unsatisfactory performance of duties

These procedures do not apply to employees who are subject to a period of probation, during the probationary period.
These procedures do not apply to non-ongoing employees.
These procedures do not apply in cases of suspected breaches of the Code of Conduct or where there is a health-related reason for the unsatisfactory performance or where an essential qualification has been lost.
When an unsatisfactory performance process commences, the performance appraisal cycle will be suspended until the process is complete. Where performance is found to be satisfactory, a date will be determined from which the appraisal/advancement cycle recommences.
Where these procedures result in termination of employment, the provisions elsewhere in the Agreement relating to rights and remedies in relation to termination of employment are applicable.

Procedures

After a reasonable period of counselling and coaching, an employee whose performance appears to be unsatisfactory will be issued with a formal warning. The formal warning will set out:
- details of the required standards for the duties the employee has been assigned and how the employee has failed to meet those standards;
- details of how the employee's performance will be assessed; and
- the possible consequences if the employee has not attained and sustained the required standards by the end of the assessment period.
A person nominated by the Agency Head will then conduct a fair and impartial assessment of the employee's work performance over an agreed period of time (this should normally be not less than one month and not longer than 3 months). The employee will be provided with feedback on his or her performance during the assessment period.
At the end of the assessment period, if the employee's work performance is assessed as meeting the required standard, the assessor will report this finding to the decision-maker. If the decision-maker agrees with the finding, the employee will be advised of this and no further action need be taken under these provisions
If the employee is assessed as not having met the required standard, the assessor will report this finding to the decision-maker. The decision-maker will advise the employee of the finding and of the action that he or she proposes to take, which may include one or more of the following:
- termination of employment;
- reduction in classification;
- reassignment of duties;
- some other appropriate action. The employee will be given 7 days from the receipt of the advice to respond to the findings and the action proposed by the decision-maker.
The decision-maker, having taken into account the assessor's findings and the employee's response, will advise the employee in writing of his or her decision and the action to be taken.