Performance Management processes block bullying claims

Workplace bullying claims can often be a minefield for employers, especially when they stem from performance management and/or reasonable management action.  A recent Decision from the Fair Work Commission (FWC) highlights the importance of distinguishing reasonable management action and bullying behaviour.

For employers, this case is an important reminder that clear expectations, proper documentation, and professional communication are critical when managing performance issues, to avoid workplace bullying claims succeeding. 

What was the Decision about?

A lawyer, engaged by the Department of Employment and Workplace Relations (DEWR), accused his supervisors of bullying.  The lawyer’s allegations stemmed from issues relating to his tardiness, falling asleep during meetings, and delays with completing required work. 

The lawyer alleged that his supervisor's feedback with respect to these issues was bullying because of the “accusatory” and “menacing” tone and claimed that the feedback he had received was “biased and unfair.”

Despite multiple attempts from the DEWR to improve his work performance, the lawyer continued to fail to follow even the most basic instructions (and, at times, even challenged them).

The lawyer subsequently filed an application in the FWC for an order to stop bullying.

The Commission’s ruling

Deputy President Dean of the FWC held that the lawyer had not, in fact, been bullied.

The FWC considered that the lawyer’s claims had stemmed from reasonable management action taken by DEWR. This included feedback provided about the lawyer’s poor performance, which included arriving late to several meetings, shopping online and browsing real estate during meetings, and twice falling asleep at work.

The supervisor’s emails and meetings addressing these concerns were also found to be appropriate and professional, with no bullying behaviour identified.  Relevantly, the FWC observed at [32] of the Decision:

 “Obviously, there is nothing unreasonable in expecting Mr Meagher to attend scheduled meetings or training sessions on time, in circumstances where there are other people involved in the training  program or meetings. Nor is there anything unreasonable in setting clear expectations about how he uses his time while at work or expressing concern about him falling asleep during meetings.”

Separately, Deputy President Dean was critical of the lawyer’s conduct during the hearing and even described him to be, “belligerent, rude, obstructive, refused to concede points he clearly should have, and regularly refused to answer questions directly.”

Important lessons

This case is important for the following reasons:

• Firstly, this case reinforces the importance of managing employee performance clearly and fairly, while distinguishing between reasonable management actions and bullying behaviour. Employers should remain diligent in setting expectations and providing appropriate feedback to prevent misunderstandings and/or confusion.
• Secondly, employers should clearly set expectations for employee performance and conduct. In the FWC’s view, the DEWR had provided more than adequate guidance and instructions, both before and after tasks, to support the lawyer’s performance.  

A copy of the Decision can be found here.