Blog Post:

Why Employers Must Prioritise Timely and Transparent Performance Management Processes

When done well, performance management ensures fairness, accountability, and growth. But when done poorly — or worse, delayed — it can expose your business to legal claims and reputational damage.

This recent Fair Work Commission case reveals how a well-intended but poorly managed performance management process, involving an internal investigation, became a liability. It underscores the significant responsibilities that employers and managers have when managing allegations of misconduct — particularly in circumstances where the employment relationship may be informal or intermittent.

While internal investigations are necessary, failure to manage them transparently and in a reasonable timeframe can lead to legal claims and reputational harm, even where such claims are ultimately dismissed. Here’s what happened — and what employers must learn from it.

Case Overview

The individual in this matter, who held a longstanding role as a referee within a sporting association, found himself excluded from officiating duties after a serious allegation of misconduct was made against him in early 2023. The incident, which was said to have occurred in a social setting unrelated to work, led to criminal charges being laid. These charges were later withdrawn by police in March 2024.

Following the withdrawal of charges, the governing bodies responsible for managing referees opted to commence an internal investigation into the matter. While this was appropriate and arguably necessary from a risk management standpoint, the investigation experienced significant delays, reportedly due to staff shortages. Over the extended period, the individual was not offered any work and was left without clear communication about the status of the inquiry.

Feeling aggrieved by the lack of transparency and alleging that the delay was causing him mental distress, the individual filed an application for an anti-bullying order with the Fair Work Commission. He argued that the prolonged suspension from duties, the refusal to assign him any matches, and the absence of communication constituted repeated unreasonable conduct, amounting to workplace bullying under the Fair Work Act 2009.

The Commission’s Findings

The Commission ultimately dismissed the application, but not without carefully considering the facts. The Deputy President acknowledged that the investigation had been ongoing for a significant period, but concluded that:

The conduct did not amount to repeated unreasonable behaviour at work. The organisation’s decision to conduct an investigation-regardless of the criminal outcome-was within its rights and considered appropriate.
The individual was not considered to be at work during the relevant period, as he had not been actively rostered for duties.
There was insufficient evidence that the organisation’s actions posed a risk to his health and safety within the meaning of the legislation.

In dismissing the application, the Commission confirmed that while the delay may have been frustrating and stressful, it did not satisfy the legal test for workplace bullying. Notably, the decision clarified that the organisation had no general duty to assign the applicant work or to complete the investigation within a set timeframe.

Why This Case Matters

While this case may seem unique, it highlights a pattern seen often in small to mid-sized businesses — particularly where performance management processes are informal or inconsistently applied.

According to the Fair Work Ombudsman, procedural missteps and communication breakdowns are among the top contributors to complaints and unfair dismissal claims.
Legal commentary and case law consistently show that delays in internal investigations — even if unintended — can open employers to adverse action claims, anti-bullying applications, or reputational harm.
HR practitioners and employment lawyers often observe that delayed or poorly communicated processes don’t need to be unlawful to be costly. Even where employers ultimately succeed, the stress, time, and disruption involved can significantly impact the business.

That’s why timely, transparent, and well-documented performance management isn’t just best practice, it’s essential protection.

Key Takeaways for Employers and Managers

While the employer was ultimately successful in defending the claim, the case reveals several risks and reinforces best practices that all employers-regardless of industry-should follow:

Investigations must be timely and transparent. Delays, even when unavoidable, should be managed carefully with ongoing communication to the affected parties. Silence and ambiguity can lead to perceptions of unfair treatment.
Procedural fairness is essential. Regardless of the employment relationship, affected individuals must be informed of processes, given an opportunity to respond, and kept updated throughout.
Good communication mitigates risk. Regular, respectful, and documented communication helps maintain trust and reduce potential claims of mistreatment or adverse action.
Compliant policies and processes protect everyone. A consistent, well-documented approach ensures that decisions are lawful and defensible should the matter escalate.

How Strategic HR Can Support You

At Strategic HR, we understand the complexity and sensitivities involved in managing employee performance and conduct issues. Whether you’re investigating a serious allegation, managing underperformance, or responding to a claim, we can guide you through each step of a compliant, fair, and timely process.

Our services include:

Performance and conduct management guidance
Independent workplace investigations and mediation
Policy development and review
Ad Hoc Advisory support in handling sensitive or high-risk matters

A well-managed process protects not just your people, but also your business.

Need advice or assistance?

Reach out to the Strategic HR team to ensure your internal processes meet legal standards and take the first step in promoting a compliant workplace where the success of your employees and business go hand-in-hand.