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Can employees claim they are being bullied when under performance management?

When you need to manage an underperforming employee, can they claim they are being bullied?

Bullying by its definition excludes ‘reasonable management action’ which includes performance management, setting reasonable goals, restructuring or transferring employees and managing an injury or illness. However, sometimes the performance management isn’t done well and that’s when there is room for claims against the employer.

Occasionally on a one-off incident, a manager may lose their temper or swear and although this is not an approach that we recommend, one off incidents also do not constitute bullying.

When a manager will be found to be bullying is when their management of employees includes things such as verbal abuse or offensive language, making unrealistic demands or isolating someone and providing them with meaningless tasks to complete.

The Fair Work Commission have found that performance management has amounted to bullying in the following examples:

  • When investigations have been conducted in an unfair manner
  • When rude or inaccurate rumours have been spread about the employee
  • When vexatious allegations have been made against a worker

If you, or one of your managers is acting in this way, the risks are that the employee could lodge a general protections or unfair dismissal claim, discrimination claim, or a Workers Compensation stress claim.

How can you manage these risks?

  • Although poor performance is a valid reason for dismissal – it’s essential that you follow what’s known as procedural fairness. This often means giving your employee a reasonable chance to improve in a reasonable amount of time and letting them know that if they don’t improve their performance their job may be on the line. This does not usually equal tripling sales within a week (although it might be nice) – think about what would be seen as reasonable by an external party.
  • Make sure that you follow a reasonable disciplinary process. It’s prudent to always offer a support person and give the person a reasonable chance to improve their performance.
  • Document your process. Have you had discussions, meetings, warnings? If so, they should all be documented. Particularly important in defending a claim, will be the reason you made a decision to discipline the employee.
  • Be consistent. It’s really important to make sure that you apply the same performance standards and behaviours to all employees and not just some.
  • Take a breath. When you have an underperformer with a bad attitude, it can be frustrating. If you are frustrated you are much more likely to blow your stack when trying to communicate your performance issues. This could inevitably be a much quicker road to a bullying claim. So stay calm.
  • Get the problem out of your head and onto paper. I find that it helps to have a list of the performance related issues that you need to address with clear and concise performance objectives – so that you don’t wing it and end up saying something you will regret, or that could be deemed as bullying.
  • And ensure that your managers wo are responsible for implementing performance management are trained and capable in understanding what is ‘reasonable’ management action.

Feel free to contact a member of our HR Gurus team if you need help with the performance management process where one of our highly experienced Gurus would be happy to assist.

Written by Resident Guru Jessy Warn.

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