The Question Every Manager Should Ask First

Before you take any action in response to an employee issue, there's one question that should come before everything else:

Is this a "won't do" or a "can't do" problem?

That distinction — between willful behaviour and a skill deficiency — determines which process you follow, what steps are required, and what outcome is legally defensible. Get it wrong, and you risk an unfair dismissal finding, a general protections claim, or simply an outcome that doesn't fix the problem.

Willful: The Employee Can, But Won't

Willful behaviour is about conduct. The employee knows what's expected, has the capability to meet that expectation, and is choosing not to. Examples include:

• Repeated lateness despite clear expectations and prior discussions
• Refusal to follow a lawful and reasonable direction
• Inappropriate behaviour toward colleagues or clients
• Breach of a workplace policy the employee has acknowledged and understood
• Dishonesty or fraud

This is a disciplinary matter. The appropriate response is a formal disciplinary process — investigation, allegations put to the employee, opportunity to respond (with a support person), and a considered outcome ranging from a warning to termination depending on the severity.

For serious misconduct — such as theft, violence, serious safety breaches, or fraud — summary dismissal (termination without notice) may be warranted. But even in serious misconduct cases, the employee must be given an opportunity to respond before a decision is made.

Skillful: The Employee Wants To, But Can't

A skill deficiency is about capacity. The employee is willing but isn't meeting the required standard. This might look like:

• Consistently failing to meet quality benchmarks despite effort
• Struggling to learn a new system or process after reasonable training
• Errors that stem from a gap in knowledge, experience, or capability
• Inability to manage workload or prioritise effectively

This is a performance management matter. The appropriate response is a structured performance improvement process — clear identification of the gap, specific and measurable expectations, support and training, regular check-ins, and a reasonable timeframe to improve.

Termination for underperformance should only occur after the employee has been given a genuine opportunity to improve and has failed to do so. What constitutes "genuine" depends on the circumstances, but it must be more than a single conversation and a warning letter.

Why the Distinction Matters Legally

The Fair Work Commission will assess the process used and whether it was appropriate to the nature of the issue. If you run a disciplinary process for what is clearly a performance issue, the Commission is likely to find the process was unfair — even if the underlying concern was legitimate.

Common scenarios that go wrong:

Issuing a formal warning for underperformance. A warning implies fault. If the employee genuinely lacks the skill or hasn't been adequately trained, a warning is both inappropriate and counterproductive. It signals punishment, not support, and will be scrutinised in any subsequent claim.

Running a performance improvement plan for misconduct. A PIP is designed to support improvement over time. If the issue is wilful non-compliance or behavioural misconduct, a PIP dilutes the seriousness of the matter and delays the appropriate response.

Blurring the two in one process. Some employers issue a "first and final warning" that mixes conduct and performance concerns in a single document. This creates confusion about what's actually being addressed and weakens the employer's position if the matter proceeds to a claim.

How to Get It Right

1. Diagnose first. Before starting any process, determine whether the issue is about conduct (willful) or capability (skillful). If it's both, address each element separately through the appropriate pathway.
2. Match the process to the problem. Misconduct requires a disciplinary process with allegations, an opportunity to respond, and a proportionate outcome. Underperformance requires a structured improvement plan with clear expectations, support, and a review timeline.
3. Document the reasoning. Record why you've classified the issue the way you have. This contemporaneous record will be critical if the matter is later challenged.
4. Be consistent. If two employees have the same conduct issue and one gets a PIP while the other gets a warning, you've created a fairness problem. Apply the right process consistently across your workforce.
5. Don't skip steps. Whether it's discipline or performance management, there are no shortcuts. Each process has steps that exist for a reason — due process protects the employee and the employer.

A Practical Example

An employee is consistently submitting reports late. Before acting, ask: why?

If the employee has been clearly told the deadline, has the skills and resources to meet it, and is simply not prioritising the task — that's a conduct issue. Address it through a disciplinary process.

If the employee is struggling with the reporting system, hasn't received adequate training, or is overloaded with competing priorities that haven't been managed — that's a performance issue. Address it through a performance improvement plan with appropriate support.

Same behaviour on the surface. Entirely different root cause. Entirely different process required.

Need Help?

Industrial HR helps employers design and run lawful, practical disciplinary and performance management processes. If you're dealing with an employee issue and aren't sure which pathway to follow, contact us before you start.