Can You Be Fired for Refusing a Performance Review? This Australian Worker Found Out the Hard Way

A recent Fair Work case has Australian employees asking: can you really lose your job for refusing to participate in a performance review? The answer might surprise you.

Kirin worked as an accounts officer at a Melbourne company. She was unhappy about her pay and had been repeatedly emailing the CEO about it, even after being told to stop.

Then her employer introduced a new online performance review system for all staff. Standard procedure, right? Every employee was expected to participate.

Kirin refused and she was fired!

When she challenged the dismissal at the Fair Work Commission, arguing it was unfair, the Commission sided with the employer. 

Here’s why: employers can give lawful and reasonable directions, and participating in a company-wide performance review is exactly that. Refusing to follow those directions? That’s a valid reason for dismissal.

Employees Have Rights

You have every right to raise concerns about your pay, working conditions, or other workplace issues. That’s protected.

But here’s where many employees trip up: there’s a difference between raising legitimate concerns and refusing to comply with reasonable management processes.

In the case of Vuong An v Glass Expansion Pty Limited, the employee didn’t just raise concerns, she refused to sign probationary review documents and declined to participate in a performance improvement plan. She alleged the review was concocted for ulterior motives.

The Fair Work Commission found that refusing to engage with a reasonable performance management process constituted insubordination, grounds for termination.

Why Performance Reviews Are Legally Protected in Victoria 

Australian courts, including the Federal Court, have consistently held that performance review meetings are an ordinary incident of employment. In plain English: they’re a normal part of having a job.

This means:

• Employers have the right to conduct performance reviews
• Employees have an obligation to participate when reasonably requested
• Refusal can be viewed as insubordination or wilful disobedience

Think about it from an employer’s perspective. How can they manage performance, identify training needs, or address concerns if employees can simply refuse to engage?

Can My Employer Fire Me For No Reason?

No, in Victoria, your employer needs a fair reason to fire you. 

Victorian employees are protected by comprehensive unfair Australia’s dismissal laws under the Fair Work Act 2009. For a dismissal to be considered fair, employers must demonstrate:

1. A valid reason: The reason for firing an employee must be sound and defensible
2. Procedural fairness: You must be told what the concerns are and given a chance to respond
3. Appropriate warnings: For performance issues, you should receive warnings and opportunities to improve
4. Reasonable decision-making: The decision must be reasonable given all circumstances

In Kirin’s case, the employer had a valid reason (refusal to comply with reasonable directions) and followed appropriate procedures.

When Can Australian Employers Legitimately Terminate?

Let’s break down the most common valid reasons for termination in Victoria, including:

1. Serious Misconduct

Serious misconduct allows for immediate dismissal without notice. It includes:

• Theft, fraud or dishonesty
• Violence or serious threats
• Behaviour causing serious risk to health and safety
• Serious breach of confidentiality
• Deliberate damage to the employer’s reputation or business

2. Poor Performance

Employers can dismiss workers for consistently failing to meet reasonable job standards, but the Fair Work Commission is clear: employers must clearly communicate expectations, provide warnings, give a reasonable opportunity to improve, and offer appropriate support.

Important: There’s no legal requirement for “three warnings,” but courts consistently uphold unfair dismissal claims where employees haven’t been given fair warning.

3. General Misconduct

Less serious than summary dismissal offences, but still grounds for termination:

• Not following workplace policies or procedures
• Unacceptable behaviour (harassment, bullying)
• Persistent lateness or absence
• Insubordination (like refusing performance reviews)

4. Redundancy

Genuine redundancy occurs when a role is no longer needed, due to business downturn, restructuring, technological change, or business closure. Employers must prove the redundancy is genuine and typically provide redundancy pay. 

Re-hiring for the same role too quickly might prove that the redundancy was not genuine, leading to significant risks of unfair dismissal claims

5. Inability to Perform the Role

If an employee becomes unable to perform essential job requirements due to long-term illness or injury, dismissal may be justified, but employers must be careful. Dismissing someone due to temporary illness or injury (supported by medical certificate) is unlawful.

What Makes a Dismissal Unlawful?

Under the Fair Work Act, you cannot dismiss someone for the following reasons:

• Discrimination: Race, sex, age, disability, pregnancy, religion, sexual orientation, gender identity, or political opinion
• Temporary absence due to illness or injury (with medical certificate)
• Union membership or activities
• Exercising workplace rights: Filing complaints, taking parental leave, requesting flexible work arrangements
• Being a victim of family violence

Procedural Fairness: Why Process Matters

Even with a valid reason, employers must follow fair procedures. This means:

1. Notification: Being told clearly what the concerns are
2. Opportunity to respond: Getting a real chance to explain your side
3. Genuine consideration: Your response must be actually considered
4. Proper investigation: Allegations should be investigated properly
5. Support person – You can have someone with you in dismissal meetings

Many legitimate dismissals become unfair dismissal claims because employers skip these steps.

Small Business Considerations

Small businesses with fewer than 15 employees operate under the Small Business Fair Dismissal Code, which provides a simplified framework. The requirements are similar but slightly more flexible.

Eligibility to Claim Unfair Dismissal

Not everyone can make an unfair dismissal claim. You must have worked:

• At least 6 months for larger businesses (15+ employees)
• At least 12 months for small businesses

If you’re terminated before these thresholds, you generally cannot pursue unfair dismissal claims (though you may still have recourse under general protections provisions).

Notice Periods and Final Pay

When employment ends, employers must provide notice based on length of service:

• Less than 1 year: 1 week
• 1-3 years: 2 weeks
• 3-5 years: 3 weeks
• Over 5 years: 4 weeks
• Plus an extra week for employees over 45 with 2+ years service

Employers can pay out the notice period instead. Final pay must include all outstanding wages, annual leave, and long service leave.

What to Do If You’re Facing Dismissal

If you believe you’ve been unfairly dismissed, act quickly. Applications to Fair Work must be lodged within 21 days.

Before applying, consider:

• Do you meet the minimum employment period?
• Was there a valid reason?
• Were you given procedural fairness?
• Is this unfair dismissal or unlawful termination?

Was The Dismissal Fair? 

Coming back to Kirin’s story: yes, you can be fired for refusing to participate in a performance review. But it’s not really about the performance review itself, it’s about the broader principle of complying with lawful and reasonable workplace directions.

If you were dismissed, you have rights. Raise concerns, question decisions, and push back on unreasonable requests. However, refusing to engage with standard business processes? That’s where most employees cross the line.

Pick your battles carefully. Sometimes the best way to fight for what you want is to work within the system, not against it.

If you’re facing workplace issues or considering dismissal, get advice early from employment lawyers. The 21-day deadline for unfair dismissal claims comes quickly, and understanding your rights and obligations can make all the difference. Call us on 1300 244 342 or email admin@kingsfordlawyers.com.au. 

This article provides general information only and should not be relied upon as legal advice. For advice specific to your situation, consult an employment lawyer.