Federal Court decision a win for performance management

by Stephanie Zillman17 Apr 2013

A recent Federal Court decision has reinforced the sentiment that HR professionals needn’t fear that legitimate performance management will be interpreted as adverse action or bullying under the Fair Work Act.

Following the case of Ramos v Good Samaritan Industries [2013] FCA 30 – in which it was ultimately found that the employer did not taken adverse action against an employee as a result of legitimate performance management actions legal experts at Clayton Utz identified a number of key takeaways for employers.

The decision of the Federal Court reinforces that:

  • Not all adverse action taken against an employee is unlawful;
  • legitimate performance management can still be implemented where an employee has exercised a workplace right; and
  • keeping detailed records which demonstrate that any performance management is only based on an employee's poor performance is vital in successfully defending an adverse action claim.

Speaking to HC, Joydeep Hor of specialist employment law firm People + Culture Strategies said it’s critical for robust communication and feedback that managers appreciate that legitimate performance management will never be bullying. “If someone feels that they’ve been bullied however, there’s the issue of what they’re feeling, as opposed to the issue of what’s actually happening. The manager should be very clear that what’s in fact happening is a legitimate process, to give that employee feedback on performance,” Hor said, adding that if an individual feels they want to exercise their rights to make a complaint about bullying, that’s up to them, but that will be treated as a separate process altogether.

In turn, organisations must ensure there is a solid commitment to training around how to conduct performance management, but equally important is a commitment to training around what bullying and harassment is, and what bullying and harassment isn’t. “It has to happen throughout the organisation, and so training employees to understand that when they receive feedback on their performance – that that is not bullying and that is not a breach of the organisation’s policies or legislation,” Hor added.


  • by Bryan Cook 17/04/2013 3:47:42 PM

    I'm finding that organisations are getting better at defining to their employees what is bullying, but they're not great at educating them in what isn't bullying - which results in a lot of unnecessary complaints around perfromance processes.

  • by Bernie Althofer 18/04/2013 10:09:18 AM

    It seems that there continues to be a struggle in understanding what are and what are reasonable management actions, and what is meant by the 'reasonable person' test.

    It also seems that whilst some organisations are improving their responses in relation to various forms of counterproductive workplace behaviours such as bullying, others seem to 'fear' having the discussion or even trying to discover the extent and frequency of incidents.

    It also seems that in times when there are budgetary restraints, training is the first area to be cut, yet in the overall scheme of prevention and detection, this is where the most beneficial changes can start. In reality, changes in relation to workplace bullying are occurring on a daily basis, and some organisations do not have the systems or processes in place to maintain currency of knowledge.

    Some organisations have even removed their 'front line' i.e. harassment referral officers, so that might increase the level of risk exposure, or even ability to provide front line training or awareness sessions.

  • by Julie Cork 20/04/2013 1:13:04 PM

    In our experience, the reluctance of organisations to follow through with providing feedback about and taking corrective action in relation to unsatisfactory performance of their people remains THE major challenge. In the face of accusations of bullying, the lodgement of complaints or just plain hostile responses managers (at all levels) and HR areas alike tend to go to water.

    This will be a helpful case to try to bolster confidence and resolve.

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