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  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":
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.
While you as a manager have to be "reasonable", you do not have to be perfect. This means that:
The Fair Work Commission will interpret reasonable management action broadly, taking into account the context and all of the circumstances.
It is crucial that organisations train their managers in the art of effective performance management of their employees. Mangers should take the time to:
The message is simple: there is "bullying" and then there is "reasonable performance management carried out in a reasonable way".
Tailored training programs can also be designed and delivered to meet your needs, location and budget. Learn more