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Employers are well aware that it can be very difficult to successfully defend a claim of unfair dismissal, and particularly where an employee is dismissed due to poor performance. In a case published by the Employment Appeals Tribunal (“EAT”) last month, Harvey Norman succeeded in defending such a claim, however not without following a lengthy performance management process involving numerous warnings, additional training, a disciplinary and appeal hearing.
Briefly, the employee was a warehouse operative at Harvey Norman’s Little Island store. From January 2011 to March 2013, the employee received two written warnings for poor performance. In July 2013, the employee received a final written warning and was suspended for one week due to continued poor performance. Despite additional training and counselling, the employee continued to have performance difficulties. The employee’s manager indicated that this was the final straw and at a meeting on 2 August 2013, the employee was dismissed due to poor performance. The employee appealed the dismissal and the decision was upheld in a hearing by the general manager on 30 August 2013.
The EAT found that Harvey Norman acted fairly and reasonably in the manner they treated the employee and that he was afforded fair procedures throughout the process. It is a useful decision which highlights that while it is possible to defend a claim for unfair dismissal due to performance, employers are generally expected to follow a lengthy process, including the provision of additional training and support, and employees must be given a sufficient timeframe in which to improve their performance.
A full copy of the decision can be viewed here.