"But they'll play the 'X' card" diminishes that employee.


Addressing performance and conduct issues is a fundamentally uncomfortable and often complex matter for all involved. It’s not uncommon even in ‘straightforward’ circumstances that acting on issues is avoided unless or until the behaviour can no longer be ignored. Add in a fear of being accused, or worse, found to be discriminating against an employee for any protected attribute and employers – especially those who pride themselves on working with marginalised groups – can experience a deep paralysis about acting on objectively inappropriate behaviours.

Obviously, the various pieces of legislation that act to protect the community from discrimination are hugely important and exist to recognise the various ways marginalised groups are targeted and disadvantaged every day. But genuine poor performance or conduct is genuine poor performance or conduct. If any employee, regardless of their history and identity is negatively impacting the organisation it needs to be addressed because the flow on for culture, outcomes and broader engagement can be significant. People's lived experience and the way it intersects with their work, behaviours and performance must be taken into account and must be respected but it does not mean that issues can not or should not be addressed. Not addressing the issue because you're fearful someone will play the 'x' card is not, on any level, treating that person with respect. It assumes that person is incapable of learning and growth because of 'x' attribute.

What does this mean in practice? Let me demonstrate with a case study (note; this involves pieces from several different scenarios I have experienced rather than being an account of a specific incident).

An employee was constantly questioning the motivations and behaviours of others and making vexatious complaints about their peers, manager and external stakeholders. This was having a significant impact on:

- The morale of her team

- The patience of her manager

- The quality of her service delivery to clients

- Her reputation within the organisation

- The organisation’s reputation externally

- The mental health of some of the employees she made her accusations about.

The business was aware that she lived with an acquired brain injury that the employee advised contributed to her behaviours. Her managers had avoided dealing with it because they had not wanted to be accused of discriminating against her on the basis of her having a disability. The issues continued to build to a point where something had to be done. It could have been addressed and resolved a lot sooner.

Under the FairWork Act’s General Protections provisions an employer must not take adverse action against an employee in response to a protected attribute. Adverse action “includes dismissal of an employee but also includes a range of other action such as prejudicing an employee or independent contractor and organising industrial action against another person. Coercion and misrepresentation in relation to workplace rights and industrial activities are also prohibited” (FairWork General Protections Bench Book)

Effectively this means you cannot disadvantage someone in the workplace because of a protected attribute (you can find the list here), of which disability, which applies here, is one.

So … on that basis, if the behaviour is related to her disability, surely that meant we couldn’t take action? Well, yes we could, because where fair process is followed to assist the employee to meet the objectively necessary requirements of the job it is not deemed discrimination. That includes conduct – if you have someone who is regularly aggressive, undermining peers etc, that behaviour is far removed from every employee's inherent requirement to engage in professional, safe behaviour in any role. As is a consistent failure to undertake an action required in a role (to put a performance lens on an equivalent context.)

So, back to our case study. What did we do:

- We provided her with evidence of the behaviours we wanted her to cease

- We explained why

- We provided her with examples model behaviours to replace them with

- We asked her what supports she felt she needed

- We agreed on reasonable supports

- We established a regular check-in meeting to provide feedback.

- It was a dialogue; that doesn’t mean we weren’t directive but it does mean we asked for her input, we listened to and incorporated it and at the heart of the whole process was respect.

- We had a plan for when she wobbled that supported her while also supporting her peers and clients.

None of it was easy; she was initially extremely defensive and resistant to what we were telling her and asking of her. But that is where, if you know you are acting from a base of integrity, you have to hold. It is tempting to waver in the face of people’s resistance but if you do that is where you see an escalation in behaviours, and it becomes that much harder to re-enter this process and have the person feel that a genuine boundary exists. I don’t mean doggedly pursue a particular outcome or not listen to the other person and their concerns; I am not saying don’t make accommodations or adjustments to enable them to meet your expectation or that you dictate how they will get there. We are, after all, talking about situations where you're working with someone who is coming from a background that may well be contributing to the situation for any number of reasons. What I mean is doggedly pursue the particular standard of behaviour you expect or performance outcome you require (as long what you’re asking is reasonable.)

What is important to note here, is the above is not a formal process. The above is pretty much a basic model of initially addressing any ongoing performance or conduct issue with … anyone. Had she not improved we would have established a formal process. A formal process is one where the person is advised, effectively, that they are on notice. Usually, a performance or conduct improvement plan will be put in place and if expectations are not met then warnings and possibly termination result. But the same principles apply if it gets to that stage – be clear that it is the behaviour/s that are unacceptable, not the person. Run the process with integrity and follow a fair process so you can clearly demonstrate that your actions are the result of behaviours and/or performance that is incompatible with the person's role and not for any other reason.


Everyone deserves an opportunity to improve; good process - primarily because it opens up lines of communication - often enables people to go from under performing to excelling. If you avoid dealing with some employees' issues and not others, you likely will discriminate against them and you certainly disadvantage them by not providing that opportunity for growth and professional development.


** If you are a person from a marginalised group and believe my advice is inadequate, inappropriate or does not support an agenda of equality, please don't hesitate let me know **

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The Curiosity Company acknowledges the Bunurong People of the South East Kulin Nation, the Traditional Owners of the land on which we work and live, and recognises their continuing connection to land, water and community. We pay respect to Elders past, present and emerging.  We celebrate the stories, culture and traditions of Aboriginal and Torres Strait Islander Elders of all communities who also work and live on this land.