Managing the “Dual Track” Problem: When a Non-Performing Employee Lodges a Grievance

 With the ordinary risks employers face by taking disciplinary action against an underperforming employee, these risks are often expanded when that employee suddenly lodges a grievance, bullying complaint, or allegation of unreasonable management action. This is considered a dual track problem.

On one track, the employer knows performance management is necessary. On the other, the employee has now exercised a workplace right under the Fair Work Act 2009 (Cth). If the employer does not address the complaint but continues down the performance management track, it exposes the employer to a general protections claim.

 

General Protections – often misunderstood

 

Under the Fair Work Act, an employer must not take adverse action, for example, termination, against an employee because they exercised a workplace right (which includes making a complaint or inquiry in relation to their employment). The employer must prove that their reasons for termination were legitimate and not tainted by the grievance. Therefore, if the employer continues performance management without first investigating the complaint, it becomes much harder to prove that the two ‘tracks’ were independent.

In general protections decisions, the Fair Work Commission and relevant courts repeatedly examine the employers:

• Timing (temporal proximity often creates suspicion).

• Decision-maker mindset (was the grievance an unconscious factor?).

• Process clarity (were the two issues handled distinctly and fairly?).

Pausing performance management to deal with the complaint shows good faith and procedural fairness.

By first investigating and responding to the issues in the complaint, it allows the employer to:

• Correct any management missteps.

• Obtain a clearer factual record.

• Demonstrate independence of process.

• Proceed with performance management on firmer legal ground.

Practical Approach to the Dual Track Problem

Step 1: Acknowledge the grievance promptly

Acknowledge receipt in writing, outline the next steps, and give the employee confidence that their concerns will be treated seriously.

Step 2: Pause performance management (unless safety or misconduct issues demand immediate action)

This should be documented. The pause must be communicated neutrally and without any suggestion that the employee’s complaint is unfounded.

Step 3: Conduct a fair, impartial investigation

Depending on the nature of the grievance:

• Internal HR may suffice; or

• For more serious allegations—particularly those involving the line manager—use an external investigator

  • Ensure that the investigator expressly avoids making findings on performance issues unless directly relevant.

Step 4: Deliver the grievance outcome with clarity

The outcome should use simple, active sentences, consistent with your internal style guide to:

• Address each allegation.

• Set out factual findings.

• Identify what is or is not substantiated.

• Outline any steps the business will take.

Step 5: Resume performance management in a procedurally fair manner

Once the grievance is finalised and reasonable time has passed:

• Meet with the employee.

• Explain that the performance concerns remain and that performance management will now recommence.

• Use objective examples, contemporaneous evidence, and clear expectations.

• Provide support mechanisms such as training or mentoring.

If aspects of the grievance reveal genuine management shortcomings, incorporate corrective steps into the performance plan.

Step 6: Maintain clear file notes and decision-maker evidence

Because the employer carries the burden of proving that performance decisions were not influenced by the grievance, contemporaneous documentation is crucial.

Practical Tips for Reducing Risk

• Separate investigators and decision-makers where possible.

• Avoid commentary by managers expressing frustration at the timing of the grievance—this is discoverable.

• Keep emails neutral, factual, and objective.

• Follow your internal structure for advice and correspondence, including short-answer summaries and clear purpose statements, consistent with the templates in your writing guides .

• Revisit the performance plan after the grievance outcome—show that the process has been refreshed, not merely resumed.

Summary: Key Points

When a non-performing employee lodges a grievance, the instinct may be to push ahead with the performance process to avoid delay. However, from an employment law risk perspective, the safest, most defensible, and most professional approach is to deal with the grievance first.

This creates a clear, fair, and well-documented separation between the employee’s protected workplace right and the employer’s subsequent performance management decisions, which significantly reducing the risk of a successful general protections claim.

If you need help with performance management of an employee, Jenkins Legal & Advisory is here to help. Feel free to contact our team for practical and timely advice.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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