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It's not necessarily unfair if you were dismissed because of poor job performance; the issue of whether you were given appropriate warnings and the chance to improve your performance becomes relevant.
My employer dismissed me because of poor job performance. Can I still claim for unfair dismissal?
You'll often hear people say that employers need to give you a certain number of written warnings, for example, three written warnings. It's important to remember that there is actually no specific requirement about the number of written warnings.
The Fair Work Commission will want to know whether you have received a written warning – and in particular, whether there was a period of time between getting that warning and when you were dismissed. This is because it's important that you have the opportunity to understand that your employment is at risk if you don't improve your performance, and to actually try to improve your performance.
For example, if you received a first written warning about your performance, and then were dismissed the very next day, it would be practically impossible to address the issues your employer raised in the warning. But if you received 2 written warnings over several months, and then had a few more months to deal with the issues before ultimately being dismissed, then this would be more likely to be seen as reasonable by the employer.
So the key about a dismissal for poor job performance is to make sure you've got copies of any written warnings, and evidence about what you tried to do to improve your performance in response.
Do I need to have received performance warnings or reviews?
If you were dismissed because of poor job performance, but you've never had a performance review, or received any kind of performance warning, then there's a chance your dismissal might have been unfair.
You'll often hear people say that employers need to give you a certain number of written warnings – for example, three written warnings. It's important to remember that there is actually no specific requirement about the number of written warnings.
What matters to the Fair Work Commission is if the reviews were real (for example, if an employer had already clearly made their mind up to dismiss someone, and the review was pre-determined, that could be deemed as unfair), whether they were clear, and whether you had the opportunity to improve the performance issues that were identified.
If your reviews or warnings were verbal only, and never in writing, then you may be able to argue that they weren't clear, but this will depend very much on the specific facts.
It's important to keep notes of when you had performance reviews and warnings, and whether you the opportunity to address issues that were raised by your employer.
I don't think I received the right training or support to address any performance issues
If your employer dismissed you because of problems with your work performance, but had not provided the right training to help you do your job properly, then this may contribute to a finding of unfair dismissal. The Fair Work Commission will look at all the relevant circumstances in assessing whether your employer’s performance expectations were reasonable, and the reasons why you did not meet those expectations.
However, if the Fair Work Commission concludes there is a valid reason for your dismissal because of your capacity to do your job, and the process used to dismiss you was fair, then the fact that your employer didn’t provide all necessary training may not be enough on its own to prove unfair dismissal.
Our Online Unfair Dismissal Lawyer Service will help make sure as many relevant facts about your dismissal are captured, and your discussion with a Slater and Gordon legal professional will help structure your claim in the best way possible.
Does my former employer have to give me a chance to improve my work performance?
If your former employer gave you an adverse performance review, the general rule is that they should give you the chance to address the issues in that performance review. Deciding whether you've been given a real opportunity to address the issues and improve your performance is very specific to your situation, with factors including:
- The size of the firm you worked for
- Whether your former employer raised the problems with your performance again
- How long between your performance review or warning and when you were dismissed.
I didn't get a chance to tell my former employer my side of the story. Does this make my dismissal unfair?
As a general rule, employers are required to give employees a chance to respond to issues, and to explain their side of the story when it comes to performance issues. If it can be proven that your former employer didn't give the opportunity to explain your situation, and respond to issues that they raise, then it's possible the dismissal was unfair.
There are exceptions for particular kinds of misconduct, and in the case of small businesses with less than 15 employees, some additional exceptions that allow employers to dismiss employees immediately.