Performance Management to Avoid Bullying Complaints

Staff who are subject to increased employer supervision or performance management may feel that they are being personally victimised, attacked or even bullied.

It may be difficult to distinguish between reasonable performance management and bullying, especially when the worker involved is sensitive by nature, has personal stress factors, fails to acknowledge their own performance shortcomings or is emotionally reactive. This leads to an increased risk of bullying complaints when staff members are being performance managed.

So how can employers use performance management steps to manage their staff to meet operational requirements without risking censure, criticism or complaints of workplace bullying?

When is performance management reasonable?

The following guidelines apply to reasonable performance management:

• ‘Reasonableness’ should be judged objectively, rather than basing it on the worker’s perception;
• Management actions do not need to be perfect or ideal to be considered reasonable;
• A particular course of action may still be ‘reasonable action’ even if all the separate steps, when seen in isolation, are not;
• Consideration may be given to whether the management action was a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

To guard against the perception of bullying, employers need to ensure that they:

• Provide clear instructions, information and training to all employees;
• Establish that employees are aware of and understand the business’ performance and disciplinary policies and procedures;
• Take management action that is justified and follow a process that is procedurally fair and consistent;
• Provide timely feedback to staff when the issues arise
• Document all performance matters and disciplinary steps clearly.

Even though the process is designed to be cooperative and consultative, employees may still object to performance management and complain that they are being bullied, victimised or harassed.

The Commonwealth at section 789FD Fair Work Act 2009, specifically states that an employer is not bullying their staff if they engage in ‘reasonable management action carried out in a reasonable manner.‘

In practice, reasonable management (as opposed to bullying) means that:

• A course of action can be considered reasonable from an objective examination even if an individual step in the process is not.
• Any action taken must be lawful and not ‘irrational, absurd or ridiculous‘
• Management should ensure compliance with policies or procedures that are established and already in place.

Regardless of how aggrieved the employee feels, or how they perceive their employers actions to be intended, a tribunal will consider the reasonableness of the performance management action objectively.

What is ‘reasonable’ is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

This may include consideration of:

• The particular circumstances of the individual involved
• Whether anything should have prompted a simple inquiry to uncover further circumstances
• Whether established policies or procedures were followed, and
• Whether any investigations were carried out in a timely manner.

When used to its maximum potential, a PIP can:

• Identify areas where individual employees are under performing or failing.
• Provide suggested methods whereby employees can improve their performance, whether to meet minimum required competency levels or, at the other end of the spectrum, or to assist employees to excel in their roles.
• Provide objective evidence in circumstances where an employee’s performance is substandard and it is anticipated that their employment may eventually need to be terminated;
• Help managers and employers observe patterns in employee behaviours and performance to identify factors contributing to poor performance.

It is important that PIPs are drafted in accordance with the organisation’s workplace behaviour management policy.

Managers should take the time to:

• Determine the specific root cause of the poor performance;
• Communicate with the employee in an open, clear and practical manner;
• Focus on the problem, not the person; and
• Set goals in consultation with the employee so that the employee knows what the specific concerns are and how to improve their performance.

tHE three golden rules for employers