Opinion: The blurred line between performance management and bullying

by External16 Jun 2015
The line between performance management and bullying claims remains hazy at best - Walter MacCallum provides some recent case law examples.

It is now over a year since the Fair Work Commission began hearing anti-bullying complaints. In that time, a number of cases have emerged that highlight employees confusing the process of performance review with bullying, which then make their way to be the subject of hearings before the Commission.

Recently, one employer, Commsec, has sought to test the boundaries of the legislation and has been granted permission to be represented by lawyers in a case that rests on the determination of whether their actions taken in performance managing the employee amounts to bullying.

And in another case, heard in June this year, an employment consultant with the Salvation Army made submissions to the Commission in an application for an order to stop bullying,that she was ‘unreasonably performance managed and micro managed.’

The number of complaints that have gone all the way to hearings in the Commission steadily increased throughout the course of 2014, starting at eight in the first quarter, 14 in the second, 16 in the third and peaking at 22 in the last quarter to December.

In all of those hearings, there were eight that involved an employee making a complaint about bullying where management was involved in a process of performance review with that employee.

None were upheld.

Clearly, there is considerable uncertainty in the minds of those making applications about what, exactly, bullying behaviour actually is, as it appears it can be so often misunderstood as performance management. It is important to note that these statistics represent only matters that have reached the level of a hearing and that hundreds more are resolved in mediation.

It’s worth taking a closer look at some of the matters that have reached the level of a hearing where some confusion between bullying and performance review is apparent.

One matter heard by the Commission, in June of 2014, involved an employee collapsing at work who was then taken to hospital. This followed on from a change in the way his performance rating was recorded as part of his performance review and which resulted in his annual bonus payment being reduced.

The Fair Work Commission ruled that, unless a discretionary bonus has been applied in a punitive manner as part of a course of conduct which falls within the meaning of workplace bullying, the Commission should be cautious about considering a discretionary bonus as workplace bullying because it is a matter which should be left to the employer’s discretion.

The Commission heard a similar matter, also in 2014, which involved a conflict between a general manager and a manager, which developed after a change in the lines of reporting during a restructure. The relationship between the two broke down and the manager reported alleged bullying to the Fair Work Commission by the general manager that was undermining her approach to work.

While the Commission accepted that there had been significant health issues suffered as a result of the stress involved in this conflict and stated that it was understandable that a change in reporting structures can result in challenging emotional circumstances, it did not accept that the actions were repeated and unreasonable acts of bullying.

This was also the case for the matter recently heard at the Commission involving an employment consultant with the Salvation Army.

The Commission heard that the consultant, who had worked with the employer for nine years as a case manager for job seekers, became part of a renewed focus by the Salvation Army regarding the management of staff, with the introduction of a new human resources team whose goal was to turn around the organisation’s approach to staff management and efficiency.

In evidence before the Commission, the Commissioner accepted that, as a consequence of a performance management review, that the employee was ‘deeply distressed’ about comments that described aspects of her work performance as not meeting the values of the organisation.

And, while the Commissioner found that the consultant was a ‘genuine individual with a strong commitment to the values and objectives of the organisation’, he suggested that it was not surprising that she was having trouble adjusting to a renewed focus by the organisation on efficiency when she had been part of a culture for such a long time where the management was previously, as the Commissioner described it,‘moribund’.

In this case, the Commission found that the actions of the Salvation Army were reasonable management actions and that they were undertaken in a reasonable manner and that they did not pose a risk to health and safety and so the bullying application was dismissed.

The matter involving the Commonwealth Bank, however, is yet to be determined, but it is important in so far as it was an attempt by an employer to use the response or defence of “reasonable management action” at a preliminary stage seeking to strike out the complaint prior to hearing. The Commission stated that:
“The Applicant has made a proper application in that he reasonably believes he has been bullied at work.Whether he has, in fact, been bullied is a matter for determination. The provisions…..are not a jurisdictional bar to the matter going to hearing, but rather a clarification of what falls outside the scope of being bullied at work in that determination. It does not operate to limit the Applicant’s belief.”

About the author
Walter MacCallum is a Director at Aitken Lawyers.


  • by Bernie Althofer AFAIM 25/06/2015 1:49:56 PM

    Over the years of providing advice, support and guidance to targets, some alleged bullies, and some managers/supervisors, performance management has consistently been identified as a 'stumbling block' where individuals don't share common understandings about the difference performance management as reasonable management actions and the reasons why performance management is perceived as a form of workplace bullying.

    It does seem that whilst organisations have documented systems and processes in place, the issues that lead to perception of abuse include: the level, currency and type of training provided; individual understanding about what constitutes reasonable management actions; the currency of policies and procedures in relation to performance management, bullying and codes of conduct; the workplace culture and specifically the unwritten ground rules; the lack of accountability and responsibility being seen as a cornerstone for maintaining organisational standards; the degree to which managers and workers believe they are too busy to engage in 'management activities such as communicating on a one to one basis; and the apparent willingness of some managers and supervisors to 'refer' matters such as bullying directly to HR without first attempting to address concerns being raised.

    When individuals perceive or see that they are being subjected to a 'different' performance management and appraisal process to that of a colleague or when they see that the system is being used against them because objectives set in such a way to ensure their failure, or when they are constantly denied learning and development opportunities, opportunities to perform at higher levels or work on different projects or tasks, or when they perceive that others are receiving continued and preferential treatment, or when their expectations about the performance assessment vary significantly to that provided, or when there is no review process that allows them to challenge 'ratings', then the level of risk exposure can increase.

    Given the potential for individuals to be promoted into management positions, and given that new employees come into an organisation from time to time so the manager/supervisor and worker relationship changes, and given the continual changes that occur in some organisations, there needs to be regular training on matters such as performance management and appraisal and workplace bullying. It does seem that in some cases, both matters are presented as individual topics with no connection being made between the two, although performance management might be addressed as a dot point under reasonable management actions.

    There are numerous Court, Commission and Tribunals decisions and findings being released on a regular basis. Organisations need to have systems and processes in place to ensure that all managers and workers at all levels can maintain currency of knowledge regarding changes that might impact on the individual HR or IR decisions being made. Communicating by email regarding changes might not be effective as it has been indicated that in some cases, unless an individual knows the personal implications, then the email is deleted. In addition, given the nature of workplaces, some people may struggle in understanding complex policies and procedures so they need the opportunity to discuss and develop an understanding about the policy implications.

    Periodic audits and assessments are also required to 'test' individual knowledge and application of various policies and procedures in the workplace. If managers and workers have introduced a performance management process that does not align with their current organisational policy; if newly appointed managers or workers (particularly those from another organisation) are not provided with training on performance management etc; or where behaviour and conduct is 'rewarded' through performance management assessments that rate a person higher than they should be, then there is potential for allegations and claims to be made.

    If there is a performance management policy and procedure in place in the organisation and it has been signed off by the executive, managers and workers need to comply with that policy and procedure even if they don't agree with it.

  • by Ewa @ engagiant.com 8/07/2015 11:54:44 PM

    While some definitely overstep their responsibilities and take advantage of a position of power, experienced managers know that positive encouragement works better than criticism https://blog.bufferapp.com/why-positive-encouragement-works-better-than-criticism-according-to-science.
    Having a dedicated tool for performance management makes all the feedback trackable and allows to avoid lawsuits - engagiant.com

  • by KillerPerformance 28/10/2015 11:09:38 AM

    What is the point of a manager asking how the employee is going when the rating has already been decided? Isn't odd that we're asking people to engage on performance, when the rating is a done deal, sometimes a week or two before? And is it any wonder that most employees find the process completely objectionable at worst, and useless at best. I've written some help for employees who have to cope with the horrible nature of the corporate performance review. Its a relationship killer. https://killerperformance.wordpress.com/