Employment Disputes Series - Part 3: When Does Performance Management Amount to Bullying

Posted by Malcolm Campbell on 18 December 2018
Employment Disputes Series - Part 3: When Does Performance Management Amount to Bullying

Bullying is real and it affects all of us in one way or another.

In 2010, the Productivity Commission found that bullying at work costs Australian organisations between $6 billion and $36 billion a year in lost productivity.

Half of all Australian employees will experience workplace bullying during their careers, 2016 research finds. Of those bullied, 40 per cent of people experienced workplace bullying early in their career and between 5 and 7 per cent had been bullied in the previous six months, a study, by the University of Wollongong found.

However, not all things that occur in the workplace that are unpleasant amount to bullying. While often a fine line, it is the role of the employer to understand what amounts to bullying and how to manage the issue in their workplaces.

What is Bullying

Workplace bullying is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.
Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is:

  • victimising
  • humiliating
  • intimidating or
  • threatening

When Is A Worker Bullied At Work

It is important to understand what constitutes bullying in the workplace and how Performance Management can be perceived as such.

A worker is bullied at work if:

  • the worker is at work in a constitutionally covered business; and
  • an individual or group of individuals;
  • repeatedly and unreasonable behaviour towards the worker, or a group of workers of which the worker is a member; and
  • the behaviour creates a risk to health and safety.

What Is Not Bullying

It will NOT be considered bullying if the behaviour is considered by the Fair Work Commission as reasonable management action when carried out in a reasonable manner.

This qualification is comprised of three elements:

  1. the behaviour must be management action
  2. it must be reasonable for the management action to be taken, and
  3. the management action must be carried out in a manner that is reasonable

Is 'Performance Management' Management Action?

It is fairly safe to say that:

  1. performance appraisals
  2. ongoing meetings to address underperformance constitute "management action".

Performance Management Best Practice

Important factors ensuring that performance management is not considered unreasonable include:

  1. clearly documenting required performance standards and where possible ensuring that these standards are a part of the employee 's job description;
  2. implementing formal policies which highlight behaviours that are not acceptable and setting out why;
  3. implementing forma performance and/or behaviour improvement plans in line with these standards;
  4. carefully minuting taking minutes of performance management meetings; and
  5. issuing formal performance/behaviour based warnings where relevant and appropriate indicating what will occur if performance/behaviour does not improve to a defined level within a defined period of time and making sure that this is done consistently across the board.

In Part 4 of this series, we’ll cover Handling Ill or Injured Employees, Tips & Traps. You can now read Part 1: The role of Policies & Procedures and Part 2: Workplace Investigation Best Practice

If you have concerns about your performance management process, need help creating new policies and procedures or if you need advice or assistance regarding an Employment Law issue, please contact us and we can provide you with advice tailored to your specific situation.