Review case—dispute about unsatisfactory performance and assessing fully effective performance

Disclaimer

The following case summary illustrates how the Merit Protection Commissioner has reviewed a particular case and should not be relied on as legal advice

The employee who applied to the Merit Protection Commissioner was working in a policy role and disputed a rating of 'developmental' at the end of the performance management cycle. The employee had been in the role for four years and had received a rating of 'fully effective' in each of the three previous performance management cycles.

The Merit Protection Commissioner recommended that the 'developmental' rating be set aside and a rating of 'fully effective' substituted for it. The reasons were:

  • The process to manage the employee's performance had substantially failed to comply with the agency's enterprise agreement and performance management policy with respect to the feedback provided to the employee during the performance cycle. There was no evidence of any feedback, beyond editing of the employee's written work. This meant that the employee was not notified of the areas of concern and given a reasonable opportunity to address the issues with performance. The manager had one discussion with the employee one month before the final rating. This discussion was held in the general office area at the manager's work station after the employee approached the manager with questions about a work issue.
  • The manager described the employee's alleged behavioural deficits in very strong terms, including using language that was personal and subjective, but provided no indicative incidents or documentary evidence.
  • The employee's performance expectations were expressed in general language aligned with the agency's capability framework for the employee's classification level and they were not tailored to the employee's role.
  • The evidence relating to the quality of the employee's written work was mixed but on balance not sufficient to establish that the employee failed to meet the standard of work expected of an employee at the relevant classification level.

The agency accepted the Merit Protection Commissioner's recommendation.