Bank lawyer “nervous and anxious” after performance management: is it really bullying?

A bank’s management of an under-performing lawyer fell short of “the best human resources practice” and was not “entirely beyond criticism”, but did not constitute bullying under the Fair Work Act, the Fair Work Commission has ruled.

The corporate lawyer claimed she had been bullied by five of her colleagues when she was placed on a performance plan early last year.

She started with the bank in January 2011, and her manager assessed her as “competent” in her first annual performance review at the end of the year. In the middle of 2012, the bank assigned her to a new manager, who soon formed the view that she had performance problems.

Despite this, the manager ranked the lawyer as “competent” again at the end of 2012, although she also told her that she needed to prioritise her work more effectively, not overwork her files and use her time more efficiently, and that she seemed to take more time to complete her tasks than her colleagues. The manager’s concerns increased during 2013, and the lawyer received a “needs development” assessment that meant she missed out on a salary increase. Early in 2014, the manager placed the lawyer on a “performance improvement plan” (PIP), which potentially involved dismissal following three warnings.

The lawyer told the FWC she had “a physical reaction” to the plan when she first saw it: “I was shaking and my face became very flushed. I felt ill. I was completely surprised by the document. I did not understand it. I thought why I have to do this. I had not heard of the PIP process before. I felt nervous and anxious,” she said.

But the Commissioner hearing the case said she should not have been surprised by the plan, given the feedback she had received in her performance reviews, and that the document was easy to understand. After her third manager advised her in March that he believed she had breached the PIP, she went on stress leave and has not returned since.

In July, the lawyer lodged her application for anti-bullying orders under s789FC. The Commissioner observed it was a prerequisite for an application under s789FC that the lawyer reasonably believed she had been bullied at work. He said that her belief that she had been bullied at work was “reasonable in the sense that it has something tangible to support it and is not entirely irrational, absurd or ridiculous”.

But referring to the definition of bullying in s789FD, the Commissioner said the bank’s decision to place the lawyer on a PIP and the manner of its implementation were not unreasonable. He said it was not his job to form his own judgement about whether the lawyer’s performance warranted her being placed on a PIP.

He said the lawyer needed to show that the decision to introduce a PIP “lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances”, which she had failed to do. “There was an evident and intelligible justification for the PIP based on the earlier identification by experienced persons who managed or supervised her of shortcomings in her performance and the assessments she received through the documented [performance review] process.”

The Commissioner said that in a dull spot — he called it a “longueur” — in the hearing he jotted down a list of features that might constitute bullying. “My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.”

But he said the lawyer had not alleged any such behaviour against her colleagues, although it was “unsatisfactory” that the bank’s performance management policy made no reference to the PIP process, “with the result that the process was not fully transparent to all employees”. He also said it was also surprising that the bank did not appear to have a dispute resolution policy for employees not covered by an industrial instrument, such as its corporate lawyers. “Nonetheless, performance plans which clearly identify targets for improvement, require achievement of those targets within identified timeframes, and which provide support and feedback to employees to assist them to achieve such targets, are a legitimate and commonly used means to improve employee performance.”

The lawyer’s long list of bullying complaints included that the bank had not responded appropriately to medical advice that she was fit to return to work in October last year. The Commissioner said a common feature of those contentions was “that no particular individual has been identified as responsible for the alleged unreasonable behaviour” and that “there was nothing in section 789FD or the Part 6-4B anti-bullying provisions which suggested that bullying at work was something which could be engaged in by a corporation.

iHR believes that employers can avoid time-consuming, stressful and expensive bullying and harassment actions via both prevention and the application of procedural fairness. Our Equal Employment Opportunity, anti-bullying training for managers focuses on the responsibility as the custodians of your organisation’s workplace culture and the key elements of the manager’s role in preventing and effectively managing bullying, harassment and discrimination issues in the workplace.