This extract from a recent Fair Work Commission case decision deals with the sometimes thorny issue whether an employee may be fairly dismissed during a performance improvement process.
“I was referred to Etienne v FMG Personnel Services Pty Ltd56 (Ettienne) by the Applicant as authority for the proposition for the authority that termination of employment within the period of the Second PIP would render a dismissal unfair. Contrary to the Applicant’s submission, Ettienne does not stand for that proposition as the Full Bench made clear when then they said the following;
“Finally, we would note that our decision should not be understood as suggesting that employers are always required to conclude a performance improvement process once it has begun. There may be a valid reason not to do so. Each case will turn on its own facts.”57
Keller v Podium Australia Pty Ltd [2026] FWC 2630 delivered 10 July 2026 per Masson DP