Performance management and adverse action claims: Can performance still be managed?: Update November [...]

With the High Court expected to make a decision in Barclay v The Board of Bendigo Regional Institute of Technical & Further Education [2011] FCAFC 14, some employers have been asking the question, can performance still be managed?  Or has the combination of the reverse onus of proof provisions and the breadth of the definition of 'workplace right' in the Fair Work Act 2009 resulted, in practical terms, in a situation where an employer is prevented from performance managing an employee?

"The general protections provisions of the Fair Work Act are extremely broad. They prohibit an employer taking adverse action against a range of other persons because, amongst other things, they have a workplace right; have or have not exercised a workplace right; or propose or propose not to at any time exercise a workplace right.”

“In the current industrial environment, it is vital to ensure your organisation doesn't become a safe haven for 'koalas in the workplace': protected species that cannot be required to perform adequately.”

To view the full Update, please download PDF.