In many cases around workplace bullying a common thread is apparent– that there is a fine, difficult to distinguish line between performance management and bullying. What might seem reasonable and constructive to one party can seem like relentless criticism and mistreatment to the other.

The perils of this particular situation were highlighted in a recent case in Canberra. A manager in a government department was found to have bullied an employee by conducting one-on-one counselling sessions to help the under-performing employee. It sounds like every good manager’s nightmare!

In assessing the original claim, the Administrative Appeals Tribunal found that the private meetings were a form of bullying because they attracted “notoriety” to the employee. In contrast, the manager was found to have done the right thing by offering counselling, time off and support to help the employee improve her work.

The latest twist in this story may help you breathe a sigh relief. An appeal saw the original finding overturned and the manager was found to have acted appropriately. It was noted that the relevant guide to bullying which states that “Management action is reasonable if conducted fairly, transparently and in line with approved processes,” had not been properly considered. At appeal, a Federal Court judge found that the employee’s reaction should not determine whether the manager’s action is reasonable. The judge also added that “Some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work.”

It is also important to note that, at the original hearing, a culture of gossip and backstabbing was perceived to exist within the section of the department in which the aggrieved employee worked. Clearly this would have impacted on the employee’s feelings of anxiety and humiliation about being performance managed. This serves as a pertinent example of how important workplace culture is in preventing claims of harassment and bullying.

So what do you do with this information? It is pretty well established that negative feedback should be given privately and that principle still stands. Do not draw attention to the situation, but do not shy away from tackling non-performance. In addition, make sure you have a clear policy and procedure for dealing with performance management. Even better, make sure this process is made clear to all employees so there are no surprises later. Although it may be inevitable that some employees might have negative feelings about being performance managed, this should not be exacerbated by a poor team culture. Managers should be alert to the atmosphere in the workplace and act accordingly if any issues such as hurtful gossip and rumours come to their attention.

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