Poor performance is a difficult issue to bring up with employees, and in the current COVID-19 crisis it can be a challenging area to navigate should you as an employer wish to dismiss your underperforming worker. Many employers have held up performance management processes in order to focus on the imminent issues threatening their business during COVID but if unmanaged, what occurs along the line will be other underlying problems with employee performance. In this article, we will examine how working remotely and other new realities of work can be effectively managed, and how performance-related terminations should take into account procedural fairness.


Communication and Feedback with Employees

Out of sight, out of mind’ is a common thought employers may subconsciously register in relation to out of office employees. When employees are working from home, some experts suggest regular meetings and ‘catch-up’/feedback points should be implemented to allow for effective communication and ‘check-ins’ to gauge an employee’s performance.

It is also vital to carefully consider how to ensure procedural fairness in terms of opportunities for regular feedback to be given on performance and for issues to be addressed and communicated appropriately.
Ideally, this communication and feedback could be delivered via a video conferencing program in order to maintain personal, face-to-face discussion.


Adapting Performance Improvement Plans

As we are in unprecedented times, performance improvement plans should be updated to reflect the changes of remote working conditions and to accommodate regular check-ins with an employee.

It can be demanding at this time to have as much insight, particularly when key performance indicators (KPI) may require managers to be physically present, monitoring an employee. Procedural fairness can also be difficult if employees do not have the capacity to clearly and obviously demonstrate how their performance has improved.

Where appropriate, targets should also be reconsidered and amended. It is important for employers to grant careful consideration as to whether any failed targets are due to the current COVID-19 circumstances or can be directly attributed to an employee’s under performance.

If an employee was dismissed due to certain tasks or time frames not being achieved because they were impossible to meet in the current state of the business or market, that employee may have grounds to claim unfair dismissal. The employee would have a greater likelihood of success in demonstrating they haven’t been afforded procedural fairness, particularly in the current climate.


Taking into Account the Increased Risks of Psychological Injury during COVID-19

Employers must be mindful of the greater risk of psychological impairment or injury faced in these uncertain and stressful times. Employees may feel isolated and have higher rates of depression or anxiety. When handling performance and conduct matters, employers should therefore be aware and proactive in offering a support person to an employee if appropriate. It is also essential when addressing underperformance of an employee to take into consideration the circumstances and situations they may find themselves in; with less contact with team-members and social connectivity, they may not be performing their best due to this.


Employee Complaints in a Pandemic: Same Rules Apply

Even during a serious pandemic, an employee who is being performance managed can make workplace complaints; which should be treated seriously and dealt with accordingly.
It is vital to ensure there are different decision-makers who have oversight in relation to decisions to be made in both performance and workplace management complaints, in order to allow procedural fairness.

A notable circumstance could arise where it is valid to dismiss an employee due to legitimate performance or conduct issues, where that employer could continue with the employee’s workplace complaint; even if they were no longer with the business or company.


Exposure to Claims

It is also possible that employers might face increased claims from employees who may feel as though they have ‘nothing to lose’ due to the current job climate. It is therefore significant to be crystal clear about the reasons giving rise to any terminations or dismissals in this pandemic environment, ensuring that any consultation obligations that apply are complied with.

For professional advice when it comes to ending employment during COVID-19 or any other employment law matters, contact Quinn Lawyers on 02 9223 9166 or submit an online enquiry.