Fair Work Commission backs dumping of public servants for underperformance

The two workers, sacked by the Australian Bureau of Statistics and the Defence Department last year for underperformance, have both lost separate appeals for unfair dismissal to the Fair Work Commission.

The decisions will be studied closely by bosses across the 150,000 Australian Public Service which has been grappling for years with the issues of dealing with employees who cannot, or will not, do their jobs properly.

Underperformance in the public service was described as a "seemingly intractable" problem by the former Public Service Commissioner but the Fair Work Commission has backed the Bureau of Statistics in its argument that it did everything right before it dumped an underperformer in March 2015.

The ABS sacked its APS 5 employee after nearly a year of trying to improve his effort at work, the Commission was told.

The Bureau said it had worked with its employee to develop a "performance agreement" and an "improvement plan" in its attempts to improve his performance, particularly his failure to meet work deadlines, before sacking him.

But the public servant appealed his dismissal to the Commission arguing that he had been hit with concerns about his work "out of the blue" in May 2014, that some of the performance assessments were based on lies and misinformation and that an independent assessor appointed to the case by the ABS was being controlled by its senior management.

But Commission Deputy President John Kovacic, who heard the unfair dismissal case in Canberra, accepted the Bureau's position that it "ticked every box" in trying to improve the situation before ending its workers' employment.

"I find that there was a valid reason for [the public servant's] dismissal; that [he] was notified of that reason and given an opportunity to respond to that reason; that [he] had been warned about his performance before his dismissal, as well as being given opportunities to improve his performance," Mr Kovacic wrote in his decision.

In the other case, a public servant's case against the Defence Department for unfair dismissal did not even make it to hearing stage after she was unable to convince the Commission to make an exception to the strict rules about filing appeals within three weeks of a sacking.

Defence fired the APS 4 bureaucrat in August 2015 "for unsatisfactory performance of duties" after nearly 18 months of performance management procedures.

In her appeal, the woman argued her performance had not previously been questioned in the 16 years she worked in Defence and that a health issue had hampered her efforts at work.

She said she had told her bosses she was not coping and asked to be moved to another job but they were not interested.

With Defence denying the dismissal was harsh, unjust or unreasonable and that the process leading to her dismissal had been "procedurally fair", the Commission deputy president noted the unfair dismissal case was "not strong".

Mr Kovacic found no special circumstances to justify the Commission opening a case that had been lodged a day late and dismissed the appeal.