Does failing to equip managers with the skills to safely manage performance create an unreasonable risk for your business?

Yes, according to a recent prosecution of an employer in the NSW Local Court on 19 December 2025.

The employer was convicted and fined $188,000 and had an adverse publicity order imposed upon them following the suicide of a worker who had been subjected to four separate psychosocially unsafe performance management ‘work plans’ across a six-month period.

The Court found the risk controls available to the employer included training supervisors to:

• understand how a work plan might be a psychosocial hazard;

• identify the psychosocial risks associated with workers being subjected to work plans; and

• eliminate or minimise the risks, including by referring workers for medical assessment and suspending performance management processes where required.

Our Take

This is clearly a distressing set of circumstances for everyone involved – particularly as with a different approach this could have been avoided.

Employers rightfully expect performance standards to be met but often miss the point that usually the mindset/ behaviours/ practices that got an employee into the poor performance they now find themselves in, will now require a different set of mindset/ behaviours/ practices to get them out of it.

Balancing the operational requirements for meeting performance expectations and an individual’s capacity to cope with such practices is a difficult and nuanced process that requires ongoing training, assessment and re-adjustment. Too often managers are just expected to ‘know what to do’ without being trained in what to do or having the opportunity to hone and practice this challenging craft.

Employers can do better. We are yet to see a more effective intervention strategy for managing performance than regular One-on Ones conducted by managers who have been trained in how to effectively conduct them.

Action Items:

• Train your managers how to deliver effective one on one meetings and provide feedback – this is still our ‘go to’ for almost every ongoing workplace dispute we see between a manager and their direct report

• Train your employees what they can reasonably expect from their managers - so that they understand that not getting what they want or feeling uncomfortable is not the same as bullying

• Provide guidance to management - (ie giving real examples) regarding the differences between reasonable and unreasonable conduct

• Ensure workplace policies are regularly reviewed to remain contemporary – and are structured to prevent any allegations that fair processes may be bullying – including using use more examples – it shouldn’t be a ‘guessing game’

• Seek and follow Medical Advice if required - ensure any changes to hours or duties are supported by clinical recommendations and clearly communicated

• Document support measures and decisions - keep records of all accommodations, communications and performance management steps.

• Manage performance expectations firmly but fairly - set clear expectations around performance expectations regularly and consistently.

Edge Legal

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