The Shift to Remote Work
As of September 2021, more than 40% of Australia’s workforce has transitioned to remote work, a trend that has persisted for over 18 months. For many organisations, this shift represents the new normal, prompting businesses to adapt rather than wait for a return to previous ways of working.
One area that requires significant adaptation is performance management, particularly when it involves managing poor performance in this evolving landscape. During the height of the pandemic, many organisations placed performance management on the backburner, adopting an “out of sight, out of mind” approach. However, as remote work continues to be a fixture in the workplace, it’s crucial that performance management does not remain neglected. Amy Zhang of Harmers Workplace Lawyers emphasises that managing poor performance in a remote setting requires careful planning and consideration.
Legal Considerations for Employers
Let’s begin with the legal obligations that employers must fulfil.
Regardless of an employee’s location, employers are entitled to implement fair performance management plans if an employee is underperforming. However, managing remote workers introduces additional factors that must be considered. Failing to account for these remote working barriers could have serious consequences for employers, especially if poor performance is used as grounds for dismissal.
According to HRM Online, key considerations for remote workers include:
- The reliability and speed of the employee’s home internet and computer, which may not match the office’s standards.
- Challenges in contacting the necessary individuals to complete tasks.
- Balancing work with caregiving responsibilities or home-schooling duties.
- Mental health and social challenges exacerbated by prolonged physical isolation from colleagues.
After taking these factors into account, if performance issues persist, employers must follow a fair performance management process. It’s essential to proceed with caution and, at a minimum, ensure that procedural fairness is strictly adhered to.
Ensuring Procedural Fairness in Remote Performance Management
Procedural fairness in a remote work environment can be broken down into three key areas:
- Providing Adequate Warnings and Notice
- Giving Reasonable Opportunities to Improve and Respond to Underperformance
- Opting for Private Face-to-Face Communication
In a remote setting, it’s crucial to choose video calls over emails, phone calls, or text messages for performance discussions. This approach ensures that the conversation remains private and that the employee is fully engaged.
When setting up a performance discussion, it’s important to clearly communicate the purpose of the meeting, such as discussing current performance and opportunities for improvement, as well as who will be present on the call. This helps alleviate any anxiety or concerns the employee might have.
A case that highlights the importance of procedural fairness is the Fair Work Commission’s ruling in the case of Kizuri Capital Pty Ltd., Maycorp Pty Ltd., and Cricklewood Capital Pty Ltd. t/a Allpet Products [2020] FWC 5332 (October 2020). The Commission was critical of the procedural defects surrounding the termination, particularly the failure to provide the employee with an opportunity to address or correct issues, and the decision to terminate employment via email without a prior call or meeting. This case underscores the necessity for employers to remain mindful of the unique challenges remote work poses and to ensure that fair processes are followed.
Practical Tips for Employers
Amy Zhang advises that “Employers should continue to adhere to their statutory and common law obligations when implementing performance management and termination processes, as far as reasonably practicable in the context of the pandemic.”
When it’s not feasible to follow traditional processes, employers should strive to replicate them as closely as possible, always maintaining a focus on procedural fairness. Understanding the legal considerations is just one aspect of managing performance virtually. Equally important is adapting your approach to fit the changing environment.