For the first time, new workplace bullying laws enforced under the Fair Work Act 2009 since 1 January 2014 entitles workers to apply to Fair Work Commission for alleged workplace bullying conduct and seek stop orders on bullying behaviour.

A noteworthy trend emerging from these allegations that do make it to a hearing is the apparent confusion over what constitutes bullying in performance reviews and performance management.


Bullying vs Performance Management

Bullying can be obvious or subtle behaviour, carried out directly or indirectly such as through the use of social media channels. Importantly, in order for behaviour to constitute workplace bullying, the behaviour must be repeated, unreasonable and create a risk to health and safety.

Bullying behaviour may include:
• abusive/offensive comments
• deliberately excluding a person from workplace activities
• setting unreasonable timelines or constantly changing deadlines
• setting tasks that are unreasonably below or beyond a person’s skill level
• excessive scrutiny at work

Some of the examples of bullying behaviour above may be indicative of why many workers grapple fundamentally with the fine line between bullying and performance management.

When it comes to performance management, any staff with a managerial or supervisory role has the right and responsibility to make decisions and take action they deem appropriate in order to be effective at directing workflow, respond to poor performance and, if necessary, take disciplinary action. In doing so, managers are not being bullies, but executing their duties in a ‘lawful’ manner in response to an employees’ performance.

For example, a manager who gives fair and constructive feedback on an employee’s performance is an action that is not considered bullying as long as it is carried out in a reasonable manner and takes into account all the circumstances of the situation.


What is a reasonable management action?

A reasonable management action carried out impartially is not bullying. It is a behaviour that is deemed reasonable to be taken and conducted in an equally reasonable manner.

Examples of management action include:

• Performance appraisals
• Ongoing meetings to address underperformance
• Counselling or disciplining an employee for misconduct
• Modifying an employee’s duties including transferring or redeploying the employee
• Investigating alleged misconduct
• Denying an employee a benefit in relation to their employment
• Refusing an employee permission to return to work due to a medical condition

So how does one deal with an employee who is performing poorly, resistant to improvement directions and avoid a bullying claim?

Unfortunately there is no all-encompassing definition of what is “reasonable management action carried out in a reasonable manner”. It can be expected that some degree of humiliation may often be the consequence of a manager exercising his or her legitimate authority at work. Just because a person reacts badly to behaviour or perceives behaviour in a particular way does not necessarily make it unreasonable. Every situation will require an examination and consideration on its own facts.

When it comes to countering an employee claim about performance management conduct amounting to bullying and that the management action was neither reasonable nor was it carried out reasonably, it will be crucial that employers can demonstrate that there is a clear, fair and objective performance management process. In short, employers must have proper policy and procedure documentation that is transparent to all and consistently applied to address any performance concerns.


iHR Australia has identified key leadership behaviours and important appraisal and feedback preparation techniques in order to help managers and supervisors conduct successful performance appraisals. iHR Australia’s managing everyday performance helps participants to identify and internalise leadership behaviours that will foster a high performance culture as well as management approaches for under-performance. Participants learn techniques to conduct effective everyday performance conversations and provide feedback that is fair, accurate and consistent with the expectations of workplace law.

In iHR Australia’s performance management appraisal meetings training, the key focus is on how to deliver constructive and honest feedback and to learn the consequences of a poorly run appraisal. The program aims to equip your managers and supervisors with the capability to assess and deliver feedback with measurable and supporting evidence, and how to identify skill gaps and develop target developmental plans.

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