Review case—reduction in classification for under-performance

An Executive Level 2 employee was reduced in classification to an Executive Level 1 as a result of unsatisfactory performance. The employee sought review by the Merit Protection Commissioner on several grounds. These included that the process that assessed his performance was unreasonably delayed and there was insufficient evidence to find that he had not performed at an acceptable standard.

The Merit Protection Commissioner found that the management of the employee's under-performance, leading to the decision to reduce his classification, was fair and complied with the framework in the agency's enterprise agreement. The agency took over five months to put in place a performance assessment plan from the time the employee was advised of intention to manage him for under-performance. The Merit Protection Commissioner considered it would have been better practice to expedite this process but noted that considerable effort was put into developing the assessment plan and reaching a consensus with the employee on the criteria by which his performance would be assessed. The Merit Protection Commissioner considered that this was reasonable given the seriousness of the consequences to the employee and was not unfair to the employee.

The employee was assessed for two months against a performance assessment plan, with fortnightly review meetings. Although not a mandatory requirement under the enterprise agreement, the agency asked a colleague to be an independent assessor. The employee's manager and the independent assessor separately assessed the employee's performance, with the manager finding at the end of the process that the employee had failed to achieve an acceptable standard of performance. The manager recommended that the employee's employment be terminated. Subsequently a delegate of the agency head reduced the employee in classification in accordance with section 23(4) of the Public Service Act 1999.

The concerns about the employee's performance were behavioural. The employee had good technical skills but was unable to lead projects, align his work to the strategic directions of the agency and engage collaboratively with stakeholders and colleagues to obtain their buy-in. The employee disputed the assessment of his performance and considered that the assessor and manager had reached different conclusions. The independent assessor made no recommendation and recorded his observations of the way the employee approached tasks and engaged with stakeholders. The Merit Protection Commissioner considered that there was considerable common ground between the manager and the independent assessor about the employee's capacity to engage strategically and work collaboratively with stakeholders.

The employee also argued that he had demonstrated, through over 20 years experience as an Executive Level 2 in other agencies, that he was able to achieve outcomes consistent with the capabilities of an Executive Level 2. The Merit Protection Commissioner noted that a person's performance can change over time and that performance is assessed in the context of the particular role the employee is performing and that the employee was not able to perform at the Executive Level 2 in the role in question.

The Merit Protection Commissioner recommended that the decision to reduce the employee in classification for unsatisfactory performance be confirmed.