HR professionals need to ensure that performance management and disciplinary processes are ‘reasonable’
Workplace bullying is recognised as both a workplace relations and a safety risk, which employers are required to manage and eliminate.
The Fair Work Act 2009 (Cth) (FW Act) defines bullying at work as repeated unreasonable behaviour toward an individual (or group of individuals) that creates a risk to health and safety.
A worker who reasonably believes that they have been bullied at work can lodge an application to the Fair Work Commission (FWC) for orders to stop bullying.
In 2016-2017, the FWC received 722 applications for an order to stop bullying (Fair Work Commission 2016-2017 Annual Report).
Within the workplace, there some incidences in which we see bullying complaints commonly arise.
Common sources of bullying complaints
Poor behaviour in the workplace
Poor workplace behaviour, including aggressive and belittling behaviour, or gossip and rumour mongering that creates a risk of psychological injury may be found to be workplace bullying.
Employers should immediately address poor behaviour in the workplace and take steps to ensure appropriate standards of workplace behaviour are set and maintained. This could be achieved through adopting through policies/Codes of Conduct, ensuring workers are aware of and trained in them and enforcing those policies/Codes of Conduct consistently (and from the top down).
Performance management and disciplinary action
It is not usual for bullying complaints to arise in the context of a performance management process – during which an employee alleges they are being micromanaged or at the commencement of disciplinary action where a worker alleges the disciplinary action is unfair.
The FW Act provides an important exemption to what will be considered bullying at work. Under section 789FD(2) of the FW Act, a worker will not be “bullied at work” when the action is reasonable management action carried out in a reasonable manner.
To manage the risk of a bullying claim, it is important that performance management and disciplinary processes are reasonable and that the process adopted is reasonable.
In Ms S.B  FWC 2104, Commissioner Hampton considered subsection 789FD(2) of the FW Act and explained that to determine whether management action was “reasonable” involved an objective assessment of the action, having regard to the circumstances and the knowledge of those involved. In this regard, Commissioner Hampton noted that, “The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.
Similarly, Commissioner Hampton stated that whether the action was carried out in a reasonable manner was also to be determined objectively.
By way of practical application, it would be reasonable for an employer to conduct performance appraisals of and to address underperformance in a formal manner with employees provided that the conduct and delivery of the process was also reasonable.
Generally, the steps in a performance management process may include: