What can your organisation do to protect itself from bullying claims arising from performance management? Nichola Constant and Erin Lynch provide some tips.
On 21 March 2013, the Fair Work Amendment Bill 2013 (the Bill) was introduced into Federal Parliament for consideration and debate. While the Bill contains a number of changes to the Fair Work Act 2009 (Cth) (FW Act), one of the most controversial amendments is the introduction of new anti-bullying measures.
The Bill proposes a popular definition of bullying as the “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”. If the Bill is passed it will be the first time Australians will have an accepted definition of bullying.
The question is – will the Government’s proposal to allow individual employees who are bullied at work to complain directly to the Fair Work Commission
(FWC) clear up some of the mystery around when performance management becomes bullying, or will it only muddy the waters even further?
Recently, the FWC found that even when performance management is stressful for an employee, this may not necessarily equate to bullying or harassment (although this would come as no surprise to most of us).
In Choi v Country Fire Authority
, Ms Choi was told by several managers that her work was unsatisfactory and needed to be changed. Believing that she was doing a good job, Ms Choi refused to comply with these instructions, which led to the commencement of a formal performance management program. Following this, Ms Choi made an informal complaint that the “raising of ongoing performance issues by her managers” was bullying.
After an incident involving an outburst directed at a colleague, Ms Choi was dismissed. She subsequently lodged an unfair dismissal claim and argued that the performance management process was “part of a bullying process by her managers”.
In dismissing her application, the FWC found that the stressful performance management process was not inappropriate or unfair and that there was no reason to dispute the outcome of the employer’s investigation (which found that the behaviours engaged in by Ms Choi’s managers were not bullying).
It should be noted that the FWC did not definitively decide that bullying and harassment had not occurred – it merely accepted the investigation outcomes. It remains to be seen whether a case with similar factual circumstances would be decided differently under the Government’s proposed anti-bullying regime.
Employers should also be cautious, as not all actions purportedly undertaken to discipline or counsel employees will be characterised as performance management, and the conduct of managers during performance management may make otherwise reasonable performance management unreasonable and/or unfair. As such, any exception for reasonable management action under workers’ compensation legislation – such as section 11A of the Workers Compensation Act 1987 (NSW) – may not apply.
In South Eastern Sydney and Illawarra Area Health Service v Nikolis,2 it was found that a number of meetings between a manager and an employee about her absenteeism and lack of punctuality could not truly be characterised as performance management. It was held that the “firm” tone of the manager and an incident in which the manager had ended a meeting “with a bit of frustration” were sufficient to uphold a finding that Ms Nikolis would perceive it to be “bullying and intimidating” and therefore she should be entitled to workers’ compensation.
Some things your organisation can do to protect itself from bullying claims arising from performance management:
Maintain objectivity and focus on the performance issues, not the person, during performance management meetings.
Ensure that the emphasis of any performance management meetings is on the future – that is short-, medium- and long-term goals – even though discussion of performance issues will necessarily involve discussing the employee’s past performance.
Document all performance management discussions and meetings (as you may already be doing).
Pay attention to your oral and written communications and consider the impact these have on the employee.