How Do You Pass a Test When Nobody Tells You the Rules?

Imagine being told that your performance needs to improve, working through a formal plan and coming away from the midpoint review believing you are on track. Then you are asked to explain why your employment should not be terminated.

That was part of the picture considered by the Fair Work Commission in McLean v Reserve Bank of Australia [2024] FWC 2269. The case is useful for employees because it looks closely at the substance of a performance improvement plan and the messages given during it.

The performance concerns were real

Mr McLean had worked for the Reserve Bank of Australia for about 14 years. The Bank had concerns about his performance and placed him on a revised performance improvement plan. The plan included a warning that failure to improve could lead to further action, including termination.

The Commission found there was a valid reason for dismissal related to performance. That finding matters: the case was not decided on the basis that every criticism was fabricated, or that an employer could never address the concerns.

What did the plan actually require?

The Commission found that a number of requirements in the plan were not expressed clearly enough for Mr McLean to know what he needed to do or whether he had met them. It also found that the feedback after the midpoint review did not make clear that he was off track and at risk of losing his job.

A second review meeting was cancelled. The Commission found that the show-cause letter did not give sufficient particulars of the remaining deficiencies in the plan, limiting his ability to give a considered response to those concerns.

Considering the circumstances as a whole, the Commission found the dismissal harsh and ordered compensation. The existence of a valid reason was one part of the assessment; the conduct of the process and its consequences also mattered.

Questions worth asking about your own plan

• What specific work or conduct is said to fall short, and what examples support that concern?
• What standard must I meet, who will assess it, and how will it be measured?
• What feedback, training, resources and time will I receive?
• When will progress be reviewed, and how will I know if I am off track?

Ask for clarification in writing if an objective is unclear. Keep the plan, meeting invitations, feedback and your responses, along with any records you are entitled to retain. Your contract, award, enterprise agreement and workplace policies may also be relevant.

A vague target is a reason to ask questions, not an automatic finding that a dismissal will be unfair. Each matter depends on its evidence, applicable rules and full circumstances.