Your rights after a performance dismissal
Your job ended over performance concerns, and you want to know what you can still do.
Did you get a fair chance to improve?
You keep the right to challenge a performance dismissal if you were never given a genuine chance to fix the problem first. You can file a written representation within 60 days of the dismissal, whatever your last review said.1
A single low rating followed quickly by termination is often the exact pattern a claim challenges.
What is a performance improvement plan supposed to do?
A performance improvement plan (PIP) should set clear targets, a fixed timeframe and support to meet them. If your employer skipped this, or set targets that were vague or impossible, that gap works in your favour.
The plan should also have been put to you in writing, not mentioned once in a meeting.
Do documented warnings matter?
Warnings should build a paper trail showing you knew the standard and had a real chance to meet it. One undocumented conversation followed straight by dismissal is a weak base for an employer, which has to prove the process was fair.2
Ask for copies of any warning letters or appraisal notes on file. You are entitled to see the record your employer is relying on.
Were you held to the same standard as others?
A comparator, someone in a similar role who was not dismissed for similar results, can be useful evidence. Raise it if your targets were noticeably stricter than a colleague’s, or if you were the only one measured this way.
The match does not have to be perfect, only a genuine point of comparison.
What rights sit alongside the performance question?
The Employment Act sets baseline entitlements such as notice, and since the 2022 amendments they apply regardless of wage level.3 A performance dismissal does not remove that coverage.
The right to challenge an unfair dismissal is a separate track.
How do you turn your rights into action?
Check your dates on the 60-day deadline calculator. A right not used in time cannot be enforced later.
The page on dismissal for poor performance sets out what a fair process looks like. If you decide to file, the Section 20 representation page explains the step.
If you want a lawyer to act, an independent employment lawyer can review your PIP, warnings and comparator details and file the claim if there are grounds.
If you believe your rights were breached in a poor performance dismissal, request lawyer contact first; only after an identified independent lawyer has contacted you and specifically requested the material, send your warnings and any improvement plan. An independent employment lawyer can tell you whether it is a case they can take on.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.
Common questions
What if I was never put on a performance improvement plan?
Skipping a PIP, or any structured chance to improve, weakens the case that the dismissal was fair. You keep the right to file a representation within 60 days however the review went.
Who has to prove the dismissal was fair?
The employer does. You do not have to prove your own good performance, since the law places the burden on the employer to show the process was fair.
Can I ask for a copy of my warning letters?
Yes, you can ask your former employer for the records it relied on, including warnings or appraisal notes. These documents matter if you decide to challenge the dismissal.
Does it help if a colleague with similar results was not dismissed?
It can. A comparator treated differently for similar performance is relevant evidence, though it does not have to be an exact match to be useful.
Sources
- An employee who believes a dismissal had no just cause or excuse can file a written representation to the Director General of Industrial Relations within 60 days of the dismissal Mah Weng Kwai & Associates
- The burden of proving both the poor performance and the fairness of the dismissal process rests on the employer, not the employee, once a case reaches the Industrial Court Mah Weng Kwai & Associates
- The 2022 amendments to the Employment Act took effect on 1 January 2023 and extended core protections to employees regardless of wage level Malay Mail
Keep reading
If you believe your rights were breached in a poor performance dismissal, request lawyer contact first; only after an identified independent lawyer has contacted you and specifically requested the material, send your warnings and any improvement plan. An independent employment lawyer can tell you whether it is a case they can take on.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.