A worthy New Year's resolution for public service managers: tackle staff underperformance

Far more good comes from dealing with poor work than ignoring it.

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The Public Service Act provides that the Australian Public Service "requires effective performance from each employee". Public Service Commissioner John Lloyd made particular mention of that legal requirement, which is in section 10A of the act, in a speech about six months ago. The policy underlying that section was outlined by the inaugural public service commissioner, D. C. McLachlan, back in 1904 in his first annual report:

The Commonwealth Public Service must not be looked upon as an asylum for the indolent or the incompetent. Each officer will be expected to show evidence of a strenuous official life, to work diligently and conscientiously and legitimately earn the salary he receives. Efficiency and economy must be the watchwords of this service if public confidence is to be attained and maintained.

Notwithstanding the policy and the law, the public service has struggled to meet this requirement since its inception.

Take Australia Post, for example. It is not part of the APS today largely because the former Postmaster-General's Department was found to be so defectively administered, including in relation to staff performance, that it was excised from the public service in 1910 after a royal commission inquiry.

In another of Lloyd's speeches last year, the commissioner said the APS "has struggled to effectively manage underperformance". Recent State of the Service reports consistently indicate that most APS staff share his view, with only 20 to 25 per cent of respondents to Public Service Commission surveys saying they consider that their agency dealt with underperformance effectively. While managing individual underperformance is only a part of the overall APS performance management equation, it is an important part. If left unresolved, it generates cynicism and resentment, not just among taxpayers but also among the performing APS staff looking on.


Clearly, individual staff underperformance must be tackled. So what are some of the elements of the problem?

First, there's the personal dimension. Managing individual underperformance involves confrontation, conflict and difficult conversations. No one wants to hear they are considered not good enough. Naturally, most of us don't want to be the bearer of bad news, particularly with someone we know, work with on a daily basis and may like.

Second, there's the time factor. If you are going to do it properly, managers must intervene early and follow through. They need to be prepared, speak in specifics, keep records, follow up and keep to time. That's what public servants should be good at, provided they have the time for it.

Finally, there's the legal quagmire into which one may be wading. People under pressure from a performance management plan may respond irrationally, aggressively or even through litigation. They may take sick leave due to being stressed or anxious. They may allege the process is unfair and that their manager is a "bully". All of these responses have the potential to derail the process.

So what's a manager to do?

The answer to the personal dimension is easy enough. Few people want to have tough conversations if they can avoid them. Anti-avoidance measures (such as Lloyd listing explicit supervisor responsibilities in this area in the revised commissioner's directions as of July 1, 2015) should help. Making the fair and effective management of underperformance a KPI for managers would also help by creating some "skin in the game". It might also help managers summon the necessary courage by considering their obligations to ensure good morale among the rest of the staff in their team. High performers are people, too; there is no need to give them an incentive to leave. These points and more are made by Professor Deborah Blackman and her co-authors in the commission's 2013 publication, Strengthening the performance framework: towards a high-performing Australian Public Service.

If left unresolved, it generates cynicism and resentment, not just among taxpayers but among the other staff, too.

The answer to the time dimension is simply a question of agency priorities, which are determined at the top. The more the agency head cracks the underperformance whip, the more likely managers will prioritise addressing individual underperformance.

As for the legal quagmire, each case will have its own peculiarities. But here are some general tips for managers.

First, stick to the agency underperformance policies to the letter. Make sure you are aware of, and comply with, the complete suite of applicable instruments, which may well extend beyond the agency's performance and underperformance policies, to include complaint-handling policies, misconduct policies, provisions in the enterprise agreement, and chapter four of the current commissioner's directions.

However, you also have an overarching obligation be "fair". If there is room for doubt, generally give the employee the benefit of that doubt. To the extent that there is inconsistency, fairness generally trumps compliance in the realm of administrative law.

Second, make sure you know the difference between underperformance and misconduct: that is, "can't cook" versus "won't cook". It sounds simple enough but, in my practice, these concepts are often confused and conflated. Different processes apply to each. Adopt the wrong process and the outcome is impugnable.

Third, act reasonably and respectfully. While the law does not require that you put yourself in the employee's shoes to make this assessment, it is still a good idea. Alternatively, get a second opinion. This way, claims of "bullying" are more easily dismissed as a "reasonable management action carried out in a reasonable manner", and the task of performance management, even if delayed, is not derailed. Get back on track as soon as the allegation of bullying has been assessed (by an independent person) and dismissed. If there are any legs to the bullying claim, address them fairly, and reassess. This does not, however, necessarily mean abandoning the performance management process altogether.

The same applies to employees who respond by going on sick leave. Respect their entitlement so far as they have it, and then get back on track when they return. Active absence management may be needed when that leave is prolonged.

Finally, when it comes to deciding what to do about proven underperformance, consider the full range of responses for proven underperformance, including providing help, training, reassignment of duties or reclassification, before exercising the statutory powers of dismissal available under section 29 of the Public Service Act. The touchstone of defensible decision-making is that which is necessary and proportionate.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law.