Performance Management or Bullying? Finding the Line
Being a manager is a tricky business. Not only are you responsible for your team meeting its targets and goals, but you must manage employees with a diverse range of personalities and abilities. It’s often difficult to walk the line between effective management, and risking claims of bullying by a disgruntled employee.
A case in point
This was the very situation under recent consideration by the Fair Work Commission. The applicant was a senior employee of a Commonwealth Government department. He alleged that his immediate manager had engaged in bullying in many ways, including by:
- Threatening to terminate the applicant’s employment.
- Putting down the applicant and criticising him.
- Treating the applicant like a slave.
- Fabricating performance issues.
- Humiliating the applicant by speaking to him in a condescending manner.
The employer submitted that there were various issues with the applicant’s work performance, including lack of communication, inability to follow through on instructions, difficulties with managing work projects and meeting deadlines. The manager had held various one-on-one meetings with the applicant in an attempt to improve his performance. This resulted in the applicant complaining on two occasions that he was being bullied. The complaints were internally investigated and both investigations concluded that there was no evidence of bullying. Some time later, because the applicant’s performance had still not improved, a Performance Improvement Plan (PIP) was implemented by the manager. Still, the applicant’s performance barely improved for the duration of the PIP. The applicant alleged that there had been “malevolently motivated micromanagement of his performance”.
The Commission’s findings
The Fair Work Commission found that there was no evidence of bullying, noting that the employer had engaged in an “ordinary exercise of management prerogative” and the application was dismissed. The applicant appealed the matter. On appeal, the full bench of the Commission held that over a number of years, no attempts by the employer were successful in improving the applicant’s performance. There were meetings held with the applicant as well as mediation, all in an attempt to informally improve his performance. After that, the PIP was implemented, with little improvement. A range of supervisors had taken issue with the applicant’s performance. The Commission dismissed the appeal, finding that there was no evidence of workplace bullying.
This case relied upon the anti-bullying provisions of the Fair Work Act. Section 789FD says that no bullying can exist where there is “reasonable management action carried out in a reasonable manner.”
So what is reasonable management action?
It then becomes a question of whether the employer’s conduct is “reasonable management action.” The Act defines bullying as unreasonable and systematic behaviour that creates a risk to the worker’s occupational health and safety. But the notion of reasonable management action is not defined by the legislation. This case makes it clear, though, that management can take steps to improve an employee’s performance, regardless of how negatively those steps are viewed by the employee. Meetings, mediations and more formal tools that document the employee’s progress (such as the PIP) are all acceptable. However, it is essential that the employer closely follows their own policies and procedures so that their management of the employee can be viewed as objective and reasonable in all the circumstances.
The need for documentation
It is also clear that there needs to be a range of supporting documentation from the outset of the employment relationship. For example, the employer should outline all duties, goals and objectives from the start, along with expectations of how the job is to be performed and how success will be measured. Employees should have regular feedback sessions with management. The employer should also have policies surrounding bullying and how performance issues will be managed, and a clear employee grievance process.
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