Aug 02

Bullying Update: What is ‘Reasonable’ in Performance Management?

Do you recognise this scenario?

Consider this familiar workplace scenario: an employee is underperforming and guidance provided in their annual review has not improved matters. Their manager is duty bound to commence a more focussed program of workplace performance management. All too often, the employee takes exception to this, considers the process unfair micro-management and accuses the manager of bullying. Sometimes, the manager is under-skilled in managing performance, and the actions being undertaken to improve performance skate dangerously close to being unreasonable.

Bullying and Reasonable Management Action

The definition of bullying found in the Fair Work Act 2009 (Cth) specifically excludes ‘reasonable management action carried out in a reasonable manner’. This exclusion, or clarification, reflects the wider understanding that, parallel to the rights of employees to not be bullied at work, employers also have a legitimate authority to direct employees and to control their work.

This is the question: how, as a manager, can you stay on the right side of the reasonable/unreasonable divide?

Firstly, let’s have a refresher on how not to manage a person’s workplace performance:

• Attacking the person not the behaviour or outcome; ‘The problem with you is…’

• Focussing on something that can’t be changed; ‘It’s obviously a problem that you don’t have a law degree’

• Unspecific, vague comments; ‘You need to improve your attitude…’

• Exaggerated comments; ‘You always/never/constantly…’

• Talking about impacts not actions; ‘People are fed up with how you behave’

• Drawing unfounded conclusions; ‘Well obviously you don’t get on with women’

• Creating a sense of gossip; ‘Well everyone thinks you have an anger issue’

• Issuing veiled threats; ‘If you don’t improve the consequences will be ugly’

• Losing emotional control: Shouting, belittling, sarcasm, rolling eyes

• Drawing conclusions before getting all the information

• Holding this staff member accountable for things that other employees get away with

These sorts of management practices, if done repeatedly, could quite reasonably be perceived as bullying. Where an employee is already be feeling defensive because their underperformance is being scrutinised, they are going to quickly call it out.

Recent Cases

In addition to these overtly unreasonable examples of management action, recent cases have indicated that management actions that do not have an intelligible reason or are not objectively justifiable will be open to an interpretation of bullying.

For example, requiring a long-serving employee to undertake an induction programme on returning from long service leave, and appointing a mentor who is much more junior than they are, are decisions without an evident objective justification. They go beyond the realms of what is an appropriate and reasonable monitoring of performance in the circumstances: Ms Susan Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308.

What is Reasonable?

Aly v Commonwealth Bank of Australia [2015] FWC 3604, a decision by the Fair Work Commission in relation to a bullying application, illustrates how ‘best practice’ management procedures can provide a solid defence for organisations to a claim of bullying.

The applicant, Mr Aly, was employed as a customer assist officer with CommSec since 2012. There were concerns about Mr Aly’s performance from 2013 with repeated applications of the Performance Improvement Process. This eventually led to a second and final warning during 2014 for a breach of the ‘Clean Desk Policy’. At the end of October 2014, Mr Aly alleged he was being micro-managed.

Commissioner Bissett dismissed the application and held that the actions of CommSec were objectively ‘reasonable management actions’ taken in a ‘reasonable manner’, and there was no evidence to find that Mr Aly had been ‘micro-managed’ as he claimed.

The Commission was satisfied that the approach taken by CommSec managers was reasonable, as Mr Aly was:

• advised of the standards expected of him;

• offered continued support and assistance in reaching the standards required including ‘review’ meetings; and

• this conclusion was also supported by the content of the minutes of those meetings.

Best Practice in Setting Performance Standards

Managers have the legitimate right to set performance standards and hold staff to those standards, even if staff perceived that they are being unfairly targeted, or find the actions unreasonable.

The subjective (and honestly held) perception of an employee that they are being micro-managed or unreasonably targeted will not of itself amount to bullying, if the management has been objectively sound, consistent between employees and documented.

The best practice principles, which all supervisors and HR managers should aim to implement when performance managing an employee, include:

• clear performance standards and minimum Key Performance Indicators, linked to the Performance description for the role;

• implementing formal performance improvement plans in line with those standards;

• having policies which clearly highlight behaviours that are not acceptable and explaining why;

• providing formal warnings for breaching workplace policies, noting which behaviours have breached the policies; and

• preparing written minutes of all performance management meetings.

We saw in the previous case that the actions of CommSec managers ensured the employer had a strong defence, and could justify its actions when challenged. CommSec had clearly trained and supported its managers, given the level of skill and diligence that the Fair Work Commission found they had applied.

The lesson for employers here is – ensure that those managers who are charged with implementing performance management programs are skilled and confident at staying on the right side of ‘reasonable’.

About Tom Henry

Since joining Worklogic in 2011, Tom Henry has led a large number of challenging, highly technical workplace investigations and workplace reviews across the corporate and public sectors, including industrial, mining, energy and communications, through to the health and tertiary education sectors. He is increasingly in demand as a public speaker and trainer, on issues such as workplace bullying and undertaking effective investigations.

Worklogic works with employers to resolve workplace complaints and build a positive workplace culture. Worklogic also offers in-house training courses on undertaking effective performance management and conducting conversations that matter. If you would like to discuss any matters relating to performance management, please contact Tom on 03 9981 6500 or via email for an obligation free, confidential conversation.

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