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What is the difference between performance management and bullying?

This help sheet has been prepared by Moores, not-for-profit legal advisers.

New bullying laws introduced in 2014 created some confusion in relation to performance management discussions.

When the new laws were announced, there was concern among some employers that they would open the floodgates to employee allegations of bullying.

Chief among these concerns was that employees would use the Fair Work Commission's expanded jurisdiction to bring claims against their employers alleging that they were being bullied by their boss as part of performance management discussions.

A 2014 decision of the Fair Work Commission shed light on how the commission will interpret the meaning of "reasonable management action carried out in a reasonable manner".

In The Applicant v General Manager and Company C [2014] FWC 3940, the applicant made an application to the Fair Work Commission for an order to stop bullying directed at her by her manager and employer, a major national listed company.

The company had implemented a strategy to rectify the unsatisfactory financial performance of the applicant's department, which involved a change to the applicant's reporting requirements and meant that she had to report to the general manager of state operations. The applicant alleged that the general manager had bullied her by his unreasonable behaviour, which included micromanaging her, raising his voice, using an aggressive tone, and undermining her by dealing directly with members of her team.

Commissioner Roe found that, in all of the circumstances, and given that the general manager had overall responsibility for the department (and was justifiably concerned about finding ways to improve its economic performance), the following actions by the general manager constituted "reasonable management action carried out in a reasonable manner":

  • requiring more frequent reporting (however, daily reporting would have constituted "intimidatory micro-management")
  • itemising the matters about which he felt the applicant should have kept him informed;
  • raising his concerns about the applicant's failure to be forthcoming with information and participate in meetings;
  • forcefully communicating in both words and body language that the applicant's way of interacting with him was unacceptable (however, if such behaviour had been repeated it "should be considered in a different light" and should be found to be unreasonable or bullying behaviour)
  • making direct inquiries, without involving the applicant, to members of her team;
  • requesting information about two unresolved complaints by her team members;
  • raising concerns about the team not making budget;
  • directing the applicant to go home when she came to work after two days of sick leave without a return-to-work clearance from her doctor;
  • determining priorities in the use of resources by setting a requirement that team members not accompany the applicant on visits to clients; and
  • refusing a general request that all meetings be witnessed - however, in light of the applicant's anxiety and her recent bullying complaint, the refusal "was not carried out in a reasonable manner".

Commissioner Roe was critical of the general manager's failure to adequately respond to the applicant's request for a support person at meetings with him.

Having found only one instance of unreasonable behaviour, Commissioner Roe determined that he could not make orders in the matter because the general manager's actions were not "repeated incidents of unreasonable behaviour". Therefore, the conduct did not constitute bullying.

"Reasonable" - in a nutshell

While you as a manager have to be "reasonable", you do not have to be perfect. This means that:

  • a course of action may still be "reasonable" even if particular steps may not be;
  • the action must be lawful and must not be "irrational, absurd or ridiculous";
  • the action itself is considered, not the employee's perception of it; and
  • you should ensure compliance with established policies or procedures.

The Fair Work Commission will interpret reasonable management action broadly, taking into account the context and all of the circumstances.

Management training

It is crucial that organisations train their managers in the art of effective performance management of their employees. Mangers should take the time to:

  • determine the issue and the employee involved;
  • 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 issue is and how to improve their performance.

The message is simple: there is "bullying" and then there is "reasonable performance management carried out in a reasonable way".

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