A performance improvement process should identify genuine performance gaps, set clear and reasonable expectations, provide appropriate support and a real opportunity to improve before dismissal is considered.
A Performance Improvement Plan (PIP) is supposed to help address genuine performance concerns. It should not be a paper trail designed to justify a decision that the employee will be dismissed regardless of improvement.
Poor performance usually means the employee is not meeting an expected standard of work. Misconduct concerns behaviour or a breach of obligations. The distinction matters because most performance problems call for a forward-looking process that identifies the gap and gives the employee a genuine opportunity, with appropriate support, to reach the required standard.
No. A document headed "PIP" does not make the process reasonable. Problems can arise where targets are impossible, measurement changes mid-process, historical allegations are continually added, promised training is not provided, the manager ignores improvement, or the employer has already begun recruiting a replacement while claiming the outcome remains open.
There is no universal statutory rule requiring a particular number of warnings in every case. The employment agreement or policy may prescribe a process. In a performance setting, however, warnings commonly form part of giving the employee a clear opportunity to understand the ongoing gap and the risk to employment before dismissal is reached.
If performance concerns may be connected with illness, injury, stress or another health issue, that information can materially change what a fair process requires. The employer may need to distinguish a performance problem from a medical incapacity issue and consider the relevant medical information and reasonable alternatives rather than simply escalating warnings.
A performance dismissal can be challenged where the standards were not reasonable or clear, the employee was not fairly assessed, support or training was inadequate, the time to improve was unrealistic, warnings were defective, relevant improvement was ignored, or the dismissal outcome was effectively predetermined.
![Briar Kennedy v Adulto HR Limited [2026] NZERA 537 - missing trial clause and predetermined performance dismissal](/Images/site/EmploymentAdvocatesAucklandCard.jpg)
Adulto HR believed Briar Kennedy was on a 90-day trial, but the agreement given after she started contained no trial clause. The employer then purported to extend the nonexistent trial into probation and dismissed her after 97 days on qualification and performance grounds.
PR Kahlon had genuine, documented concerns about delivery driver Mandeep Singh's performance and safety, but knew English was a serious barrier and still used English for critical disciplinary communications rather than Punjabi. His suspension and dismissal followed without a clear opportunity to understand and answer the case against him.
Packaging operator Arnold Putt challenged disciplinary action by George Weston Foods after a confrontation with his production manager about task priorities. The ERA examined both the basis for a final written warning and whether shortcomings in the way the process was communicated caused a separate disadvantage.
Retail assistant Gemma Pedersen was dismissed by WhatsApp/email during a six-month probation period for allegedly missing sales KPIs. She said she had not received the promised practical training and had never been put through a genuine performance process before termination.
After 21 years as a marketing manager, Glenice Cooper was dismissed for redundancy by Success Realty. By the investigation meeting the employer conceded the dismissal was unjustified, leaving the ERA to determine the proper level of lost remuneration, bonus and compensation.
