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Performance Management for Employers: 15 FAQs to Avoid Legal Risk and Improve Outcomes

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Performance Management for Employers: 15 FAQs to Avoid Legal Risk and Improve Outcomes

Effective performance management is critical for maintaining productivity, accountability, and employee engagement. However, mismanaging the process can expose businesses to legal risk, particularly in relation to unfair dismissal, adverse action, and psychological harm claims.
 
Whether you’re leading a growing team or running a tight operation, addressing performance concerns is one of the toughest – yet most important – responsibilities. Many small businesses aren’t sure where to start or worry about doing the wrong thing. This FAQ tackles the most common questions we receive, helping you stay fair, lawful, and proactive.

Frequently Asked Questions

What is performance management?

Performance management is a structured process used to identify, assess, and improve an employee’s job performance. It involves setting clear expectations, providing regular feedback, addressing underperformance, and supporting professional development.

Performance management ensures that employees are working effectively and meeting expectations aligned with business goals. Done well, it promotes productivity, clarity, engagement, and accountability.

For small businesses, where each role is critical, managing performance proactively helps prevent costly issues like high turnover, legal claims, and workplace culture problems. It also supports employee development and growth, which contributes to long-term success.

Formal performance management should commence when:
  • Informal feedback and coaching have not led to improvement.
  • The performance issues are ongoing, significant, or impacting team or business outcomes.
  • Documented expectations have not been met despite reasonable support.

Starting formal processes too late or without documentation can undermine both fairness and legal defensibility- the sooner, the better.
A PIP is a written document outlining:
  • The areas of underperformance
  • Specific performance goals or KPIs
  • Required actions and support
  • A timeframe for review
  • Consequences if improvement is not achieved

A well-crafted PIP provides structure, transparency, and an opportunity for the employee to succeed.
 
For a deeper dive into Performance Improvement Plans, including a practical guide, implementation tips, and a downloadable PIP template, read our detailed blog on PIPs here.

Start with a supportive tone and frame the PIP as an opportunity, not a punishment. Emphasise that the goal is to help the employee succeed and that support will be provided throughout the process. Be specific about what success looks like, and avoid language that feels accusatory or threatening. Ensure the conversation remains constructive, respectful, and focused on solutions.

Termination should only be considered after:
  • The PIP has been fairly implemented and finalised
  • The employee has been given a genuine opportunity to improve
  • Procedural fairness has been followed (e.g. opportunity to respond, right to a support person)

Rushing to termination or failing to follow due process may result in claims to the Fair Work Commission (e.g. unfair dismissal or general protections applications).
Extensive and contemporaneous documentation is essential. 
This includes:
  • Meeting notes
  • Copies of the signed PIP
  • Emails and feedback records
  • Evidence of training or support provided

Documentation helps demonstrate fairness, consistency, and compliance with the Fair Work Act 2009 (Cth) and best practice.

Yes, but they should still be recorded. Notes from informal discussions can be valuable if kept contemporaneous and objective. Use them to track coaching, feedback, and agreed actions, especially if they’re part of a pattern. However, informal notes should not replace formal documentation in serious or ongoing cases — think of them as complementary.

While not mandatory under legislation for all performance discussions, it is considered best practice- particularly when a disciplinary or termination outcome is possible. Not offering a support person may be viewed as procedurally unfair.

Poorly managed performance processes can expose your business to:
  • Unfair dismissal claims
  • General protections (adverse action) claims
  • Workers’ compensation claims for stress-related illness
  • Reputational harm

Employers must act fairly, lawfully, and reasonably to avoid these risks.
 
To ensure your business is protected, see how our Performance Management Services can help you navigate these risks.

Avoid emotionally charged or vague statements like “you always” or “you never.” Don’t speculate or make assumptions about intent or personal circumstances. Never issue threats or make off-the-cuff remarks about termination. Stick to factual, documented behaviour or performance issues, and focus on how they impact the business. Always allow the employee a chance to respond.

Yes. Probation does not negate your obligation to manage performance fairly. While the unfair dismissal provisions under the Fair Work Act may not apply to employees with less than 6 months’ service (or 12 months for small businesses), procedural fairness should still be applied to mitigate other legal risks.

Raising a grievance or complaint does not prevent an employer from continuing a fair performance management process. However, the complaint should be addressed in parallel and with care to ensure there is no perception of retaliation or adverse treatment, which could give rise to a general protections claim.

Employers must act reasonably and sensitively. If an employee raises mental health issues:
  • Consider reasonable adjustments
  • Pause the process if clinically advised
  • Seek medical advice (with consent) if needed
  • Document support provided

Maintaining dignity and demonstrating care is not only ethical but also reduces risk of psychological injury claims.

When done well, performance management builds trust, transparency, and motivation. Employees are more likely to feel valued and supported when expectations are clear and feedback is consistent. Addressing performance concerns early also reduces tension and resentment within teams. In contrast, poor or inconsistent performance management can drive disengagement and turnover.

Key Takeaways

  • Performance management is essential for maintaining accountability, productivity, and team morale in small businesses.

  • A well-structured Performance Improvement Plan (PIP) can help underperforming employees get back on track — and protect your business from legal risk.

  • Documentation, fairness, and timely action are critical for compliance with Australian workplace laws.

  • Even during probation, or when mental health concerns arise, performance must be handled sensitively and lawfully.

  • Supportive, clear communication is key — performance management doesn’t have to be confrontational.

How Strategic HR Australia Can Help

At Strategic HR, we partner with businesses to manage performance in a fair, compliant, and commercially sensible manner. We provide:
  • Performance Improvement Plan (PIP) templates tailored to your business
  • Guidance through procedural fairness and legal obligations
  • Documentation support to ensure defensibility in the event of a claim
  • Advice and coaching on how to conduct performance discussions professionally
  • Risk minimisation strategies for difficult or high-risk cases
  • Support with mental health-sensitive cases

Whether you are dealing with routine underperformance or navigating a complex employment issue, Strategic HR can help you approach performance management in a practical and impactful manner.
 
Contact Strategic HR today to learn more about how we can support you and your team through every step of the performance management process.

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