An employee was promoted to supervisor and they are nowunderperforming in their new role. Can we revert them back their previous tradesperson position and their old rate of pay?
Despite an organisation’s efforts toselect the right candidates and implement effective training and development plans and performance management processes, some employees may struggle to meet an organisation’s performance expectations.
In this scenario there are many considerations before a decision is made. These are outlined in the following sections:
Such considerations include the following questions:
As soon as the manager identifies an issue with underperformance, it should be raised promptly with the employee.
The employee could be unaware that their performance is not meeting expectations, or the employee could identify a gap in their training that needs to be addressed.
Further, there may be an underlying issue relating to health or family issues that is impacting their ability to perform.
These considerations are important, particularly if this individual was performing well in their previous role and was promoted as result. The underperformance could be related to an issue described above.
Were an employee is consistently underperforming, and agreed and documented performance standards, and the informal monitoring and feedback process has been unsuccessful in correcting this, their manager may need to implement a more formal performance improvement plan.
For further informationseeour Introduction to performance improvement article.
Does the employee’s contract specify that they are employed as a supervisor, and does it state the rate of pay? If so, then the terms of contract cannot be varied without the employee’s agreement.
In addition, the employer will need to consider the minimum wage set out for the relevant classification in any applicable modern award or enterprise agreement.
Finally, was there any agreed ‘trial/probation period’ for the supervisory position? The employer may have some flexibility to revert an employee to their previous role, if it was made clear to the employee that this promotion would be subject to a successful trial period.
If an employee does not agree to revert to their previous role and rate of pay, the employer will need to follow the performance management process.
Section 386 of the Fair Work Act 2009 provides that an employee will not be demoted if the demotion does not involve a significant reduction in their remuneration or duties and they remain employed with that same employer who effected the demotion.
In this situation, it is likely that the employee will experience a significant reduction in remuneration and duties if they revert from the supervisor role to the boilermaker position.
Even if the employee agreed to the return to the tradesperson position and rate of pay but resigned later, they could claim that it was a result of the employer’s actions and claim constructive dismissal.
Before making any decision to demote an employee, Ai Group recommends speaking with an advisor for specific advice. Please contact us or call our Workplace Advice Line on 1300 55 66 77.
If the employee had not completed the minimum employment period (6 months service from the date of commencement for an employer who is not a small business employer), there would be no risk of unfair dismissal if the employer decided to terminate this person’s employment.
However, consideration of any potential general protections or discrimination risk will need to be taken and if this is a concern, the manager should follow the performance management process to mitigate such risks.
For more information or assistance, please contact us orcall the Ai Group Workplace Advice Line on 1300 55 66 77.
