'People are dancing around the issue a lot of the time and not dealing with it head on,' says employment lawyer offering tips for HR
Criticism is hard to take. When a worker feels a manager’s assessment of their performance masks a true motivation to get rid of them, it’s easy to fire back with an accusation of bullying.
In a recent case, a nurse who had been issued warning letters 20 months apart for misconduct decided to take his employer to the Queensland Industrial Relations Commission. The warnings, he said, were unreasonable.
The commission didn’t agree.
"Management actions do not need to be perfect or ideal to be considered reasonable,” it said. “The [employer’s] conduct… was, in my view, reasonable management action carried out in a reasonable manner.”
Performance management or bullying
Accusations against an employer are a common response when performance is deemed below standard, said Stephen Hardy, partner in labour, employment and workplace safety at K&L Gates.
“When the process [of addressing performance] is underway, it’s common for an employee to make the trifecta – accusations they were bullied, harassed and discriminated against – in an attempt to stop that process.”
At that point, he said, the employer must separate the two issues – it must acknowledge the complaint and deal with it while separately dealing with the issues of performance or conduct.
The definition of bullying is a critical reference.
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“Bullying occurs when a worker repeatedly behaves unreasonably towards a worker or a group, and the behaviour creates a risk to health and safety,” Hardy said.
“It does not apply to reasonable management action that’s carried out in a reasonable way, and that certainly would capture performance management that is carried out in a reasonable way.”
Unreasonable complaint
It’s another reminder to HR managers to be prepared and to understand the specific performance or conduct issues they are proposing to raise.
“Be structured and deliberate in the way you embark on the process,” he said. “Sometimes, managers feel that a water-cooler chat has started the process where an employee may not be aligned on that.”
A deliberate process, he said, might include an invitation to the worker to meet to discuss performance, with a day’s notice or notice as required by policy.
It’s a good reminder that policies need to include some flexibility, Hardy said.
“Sometimes, people get stung having been too prescriptive in their policies and not having enough wriggle room to manage performance or conduct as the circumstances deem fit.”
The meeting should be in a private location and the employee may be given the opportunity to invite a support person.
“Be prepared to listen to the person and, if necessary, break the meeting so you can consider those matters,” Hardy said. “Not forgetting that obviously the law still permits people to manage, so you have a legal right to manage your staff.”
Fair and reasonable assessment of performance
Finalising performance process documents in advance of meetings is dangerous, he said.
“It gives a perception that you are targeting somebody. Finalising it and just sliding it across the table looks like you haven’t run a fair process.”
Appropriate actions might include a verbal counselling session, a verbal warning, a written warning, a first and final warning, demotion or dismissal, Hardy said. “Make sure you are very clear about what the issues are and what action you are taking.”
The same clarity applies when putting someone on a performance improvement plan, he said: what are the deficiencies addressed, what is the expectation, what is required to lift performance, and how long will it take to get there.
But stick to what’s agreed.
“I’ve seen cases where people say, ‘Right, you’ve got from now to the end of the year, and I want you to improve your performance by doing X, Y and Z. We’ll monitor you every month,’” he said. “All of a sudden, they start monitoring weekly and, come November, they [want to dismiss the worker]. That is when it can look a bit like bullying.”
When a claim of bullying has grounds
The employer must follow to the letter what is agreed to with the worker. Changing the frequency of performance updates and the deadline for improvement is like shifting the goalposts once the game’s stared.
“That can weigh quite heavily against you if you dismiss them and they run an unfair dismissal case,” Hardy said.
His advice is simple: don’t expect to use a template. Instead, be specific about what needs to be addressed and make sure to offer some support to get there. To come to the matter with an expectation that someone is to be “performance managed out” is to invite bullying claims, he said.
“The performance improvement process, believe it or not, is actually to get improvement in performance,” he said. “Whereas a lot of practitioners want to use this phrase ‘performance manage out’.”
It could all be so much easier if employers and workers were better at talking to each other.
“Studies have shown that Australian managers, by and large, are very good coaches and very good mentors, but very weak at being a tough manager and having a tough conversation,” Hardy said. “Rather than do that, they dress this up to manage somebody out, or they dress it up as being a redundancy … when in fact there is actually a performance issue to address.”
Honest assessment of performance
Play it straight, he said. Identify what the issue is. Address it. If it is a redundancy, make it a redundancy. If it is performance, deal with performance. If it’s conduct, deal with conduct.
“People are dancing around the issue a lot of the time and not dealing with it head on. That can make it look like you are targeting or bullying someone in a roundabout way.”
Prepare and be fair with the timeframe, Hardy said, because as the manager, you are in total control of this process.
“You are the one who is entitled at law to address and manage performance, dismiss somebody, put them on a plan – it is entirely in your control.”
An HR manager will need to find a balance between both parties, because it is easy to “get a bit too close”, he said. “They need to step back a little bit and make sure their decisions remain reasonable management action undertaken in a reasonable way.”
The performance improvement process can make anyone anxious, and HR managers should consider the impact on someone’s psychological well-being.
Hardy also warned that if a bullying case is brought, the Fair Work Commission will take a dim view if an employer is suddenly intolerant of behaviour it found acceptable in the recent past or has happily been paying bonuses to a worker it now claims is underperforming.
“Organisations and managers often get tripped up when they are seen to be acting inconsistently.”