HR professionals need to ensure that performance management and disciplinary processes are ‘reasonable’
Workplace bullying is recognised as both a workplace relations and a safety risk, which employers are required to manage and eliminate.
The Fair Work Act 2009 (Cth) (FW Act) defines bullying at work as repeated unreasonable behaviour toward an individual (or group of individuals) that creates a risk to health and safety.
A worker who reasonably believes that they have been bullied at work can lodge an application to the Fair Work Commission (FWC) for orders to stop bullying.
In 2016-2017, the FWC received 722 applications for an order to stop bullying (Fair Work Commission 2016-2017 Annual Report).
Within the workplace, there some incidences in which we see bullying complaints commonly arise.
Common sources of bullying complaints
Poor behaviour in the workplace
Poor workplace behaviour, including aggressive and belittling behaviour, or gossip and rumour mongering that creates a risk of psychological injury may be found to be workplace bullying.
Employers should immediately address poor behaviour in the workplace and take steps to ensure appropriate standards of workplace behaviour are set and maintained. This could be achieved through adopting through policies/Codes of Conduct, ensuring workers are aware of and trained in them and enforcing those policies/Codes of Conduct consistently (and from the top down).
Performance management and disciplinary action
It is not usual for bullying complaints to arise in the context of a performance management process – during which an employee alleges they are being micromanaged or at the commencement of disciplinary action where a worker alleges the disciplinary action is unfair.
The FW Act provides an important exemption to what will be considered bullying at work. Under section 789FD(2) of the FW Act, a worker will not be “bullied at work” when the action is reasonable management action carried out in a reasonable manner.
To manage the risk of a bullying claim, it is important that performance management and disciplinary processes are reasonable and that the process adopted is reasonable.
In Ms S.B [2014] FWC 2104, Commissioner Hampton considered subsection 789FD(2) of the FW Act and explained that to determine whether management action was “reasonable” involved an objective assessment of the action, having regard to the circumstances and the knowledge of those involved. In this regard, Commissioner Hampton noted that, “The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.
Similarly, Commissioner Hampton stated that whether the action was carried out in a reasonable manner was also to be determined objectively.
By way of practical application, it would be reasonable for an employer to conduct performance appraisals of and to address underperformance in a formal manner with employees provided that the conduct and delivery of the process was also reasonable.
Generally, the steps in a performance management process may include:
- Identification of the poor performance;
- Discussion of the identified issues of poor performance and the next steps that will be taken;
- Development of a Performance Improvement Plan (PIP), with agreed outcomes and timeframes; and
- Regular meetings to review agreed outcomes.
In Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Mac), the FWC considered an Application for stop bullying orders (the Application) lodged by an employee who made allegations of bullying conduct relating to the employer’s decision to place her on a PIP and the PIP process.
After considering the evidence, VP Hatcher concluded that the decision to place the employee on the PIP and the manner in which it was implemented was not unreasonable. VP Hatcher held that the employer had identified and documented shortcomings in the employee’s performance over a period of time, that the employer was entitled to take action to improve the employee’s performance and that the PIP process was the standard way that this was done in the employer’s business.
Importantly, VP Hatcher held that the employee had failed to demonstrate that the introduction of the PIP lacked any justification such that it would be considered unreasonable in all of the circumstances. Accordingly, VP Hatcher dismissed the Application.
Similarly, the commencement of disciplinary action and the steps in the disciplinary process must also be reasonable. Some of the factors the FWC may consider in determining whether disciplinary action is reasonable and carried out in a reasonable manner include, whether there was a valid reason for the action (i.e. “sound, defensible and well founded” and not “capricious, fanciful, spiteful or prejudiced”) and where procedural and substantive fairness is afforded to the employee.
For example, in the recent decision in Burbeck v Alice Springs Town Council; Davison; Price; Fisher [2017] FWC 4988, the FWC took issue with some of Council’s actions, including the commencement of disciplinary action against the employee for a “very low level” breach of the Code of Conduct and the issuing of an allegations letter containing historical matters that looked to “to be a process on the part of the Council to trawl for matters” to hold against the employee. These actions were held to be unreasonable conduct and not reasonable management actions taken in a reasonable manner.
Disciplinary action in circumstances where it is not warranted or proportionate to the alleged conduct has also been held by the FWC not to be reasonable management action carried out in a reasonable manner.
In Willis v Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Carroll [2015] FWC 1131, Commissioner Lewin dismissed a jurisdictional objection by the employer who submitted that its actions in initiating a disciplinary process should be characterised as reasonable management action carried out in a reasonable manner and that the application for a stop bullying order should be dismissed.
Commissioner Lewin commented that in his view:
In this matter, the employer relied upon a letter issued to the employee headed “Disciplinary Process”, which contained allegations relating to the employee’s performance and conduct. After considering the evidence, Commissioner Lewin was not satisfied that there was a causal link between the employee’s performance and conduct that warranted disciplinary action by the employer such that the disciplinary action was reasonable. Commissioner Lewin noted that as disciplinary action involved a threat to the security of continuing employment, “[m]anagement action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.”
To manage claims arising from performance management and disciplinary circumstances, it is important for employers to ensure that processes are in place and that managers and supervisors undertake training in how to best manage underperforming employees and the disciplinary process.
This is part two of a series of articles on bullying by Shane Koelmeyer of Workplace Law. To read part one, click here.
