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08 January 2020
In an ironic turn of events, a poorly implemented and followed performance improvement plan (PIP) resulted in an employer having to pay A$205,342 to an employee who had brought a successful adverse action claim in the Federal Circuit Court.
For more than 10 years, Mr Pezzimenti was an office manager at Rotary International. He was dismissed in June 2017 for alleged poor performance and subsequently commenced adverse action proceedings against Rotary.
In October 2016 Pezzimenti was placed on a PIP for a four-month period. During the PIP, Pezzimenti made a formal bullying and harassment complaint against his supervisor, who had placed him on the PIP. The complaint alleged that the PIP was not being properly implemented and was a sham to terminate his employment.
On 15 March 2017, after a series of discussions regarding the PIP – including one where Pezzimenti's supervisor said to him "Frank you didn't need to go to the extent of putting in a bullying complaint against me" – Pezzimenti was told that one item of the PIP was still outstanding.
On 27 March 2017 Pezzimenti completed the final requirement of the PIP and later provided his supervisor with a document which identified his achievements against each of the four deliverables of the PIP.
However, Pezzimenti's supervisor ultimately found that he had failed to meet the deliverables of the PIP and he was consequently suspended.
On 11 April 2017 Pezzimenti commenced proceedings seeking to restrain Rotary from dismissing him. Following the commencement of proceedings, Pezzimenti's supervisor and Rotary's HR director reviewed his leave records and email account and issued him with a show cause letter. Rotary asked Pezzimenti to show cause why his employment should not be terminated for reasons including:
When Pezzimenti failed to attend the show cause meeting, his employment was terminated.
Pezzimenti filed an adverse action claim, seeking relief against Rotary. While Pezzimenti originally sought relief to restrain Rotary from dismissing him, he did not move on this relief. The claim alleged, among other things, that Rotary had taken adverse action against Pezzimenti because he had made a bullying complaint against his supervisor.
Unsurprisingly, Rotary argued that while Pezzimenti had been threatened with dismissal, this was not because he had made the complaint, but rather because of his unsatisfactory progress under the PIP, his breaches of confidence and his failure to comply with the show cause letter.
In his decision, Judge Driver observed that:
Driver held that Rotary had contravened the general provisions under the Fair Work Act 2009. Rotary was ordered to pay A$205,342 in compensation, being equivalent to his annual salary.
In order to avoid a PIP resulting in an adverse action claim, employers should:
For further information on this topic please contact Aaron Goonrey or Justine Krajewski at Lander & Rogers by telephone (+61 2 8020 7700) or email (firstname.lastname@example.org or email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
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