​'Performance standards' unrealistic: dismissal harsh

Cases

​'Performance standards' unrealistic: dismissal harsh

The Fair Work Commission has reinstated a dismissed university lecturer and provided insights into how 'performance standards' should be set.

When reinstating a dismissed university lecturer, the Fair Work Commission provided some insights into how employees’ “performance standards” should be set. It also criticised universities generally for placing too much emphasis on trying to attract students while treating employees harshly in order to do so.

Facts of case


The employee was a lecturer, employed for 14 years. The university dismissed her for allegedly failing to meet a 2018 Performance Improvement Plan (PIP) that required her to have two research papers published in A-rated academic journals (the highest-level category) by the end of 2018. There was no previous evidence of unsatisfactory performance and she had had several articles published previously.

The employee submitted papers to two journals that had an acceptance rate of less than 15%, and could take up to 21 months to be approved for publication. One journal contacted her to say her paper was well-written but needed some further research. However, the university refused to grant her an extension to revise and resubmit the paper, instead dismissing her for poor work performance.

The employee claimed that university budget cuts hampered her ability to meet the requirements, eg by not providing staff and other facilities to support research.

The FWC noted that the university used a performance rating system for her that gave weightings of 40% for teaching performance, 40% for research and 20% for service. There was no evidence of issues with teaching or service, so the employee had achieved a rating of at least 60% –which did not equate to poor performance overall.

The FWC deputy president also made the following observations:
  • The university appeared to have set higher performance standards than under two previous agreements. The standards set by her PIP were also higher than normal for current staff.
  • Publishing decisions made by journals were outside an employee’s control. Acceptance rates were very low and requests to revise and resubmit papers were common.
  • The university failed to take into account the employee’s improved teaching performance, the loss of two of her mentors, and her full cooperation with the PIP. Also relevant was that the university’s new system of performance benchmarks was still being developed and was not finalised.
  • It did not consider lesser disciplinary options available under her employment agreement, such as demotion, loss of grading or reduced pay. Nor did it consider varying her workload to provide a greater focus on teaching.
  • The employee’s personal circumstances were relevant in this case. She had a14-year unblemished record in an occupation (academia) in which any blemish could do severe damage to the employee’s reputation and employment prospects. She was also a carer for elderly parents and had not obtained any other employment since dismissal.
  • The deputy president commented that it seemed that universities have become obsessed with achieving top rankings for research and reputation in order to attract more students (and therefore more income), at the expense of providing high-quality learning opportunities for students. Teaching students should be the highest priority of a university.

Decision


Noting that the employee had performed well in other respects and was highly committed to her employer, the FWC found her dismissal was harsh and unreasonable, and the employer did not have a valid reason for it. It ordered reinstatement with continuity of service and payment of lost remuneration.

The bottom line: Performance standards set for a job must be realistically achievable. In this case, the factors that were to determine “achievement of standards” were set by other organisations outside the employee’s control, and it was well-known that the policies of those other organisations made it very difficult for employees to achieve the results required by the employer.

Read the judgment

Zhao v University of Technology Sydney, [2020] FWC 416, 11 March 2020 
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