A recent decision by the Fair Work Commission in relation to a bullying application illustrates how best practice management procedures can provide a solid defence for organisations.
As noted in our June 2014 Workplace Insights, there have been relatively few decisions in the Fair Work Commission's recently established anti-bullying jurisdiction, perhaps due to it being a 'no-compensation' jurisdiction and the requirement for a victim to still be 'at work' for an order to be made.
Claims often relate to management or performance management activities 'gone wrong' for example micro-management. In many cases these claims are justified, however sometimes a claim may be lodged as a tactic to combat discipline or termination of employment as a result of formal performance management.
What is bullying?
For a claim to be made under the anti-bullying provisions of the Fair Work Act 2009 (Cth), the following circumstances must be present:
- a person or a group of people repeatedly behave unreasonably toward a worker or a group of workers at work; and
- the behaviour creates a risk to health and safety.
Bullying does not include 'reasonable management action' carried out in a 'reasonable manner'. Therefore claims require that management actions are considered objectively to determine if they were reasonable or otherwise.
In a recent case [Aly v Commonwealth Bank of Australia  FWC 3604], Commissioner Bissett affirmed the principles set out in Ms SB and applied them in a more typical performance management situation.
The applicant, Mr Aly, was employed as a customer assist officer with CommSec and had held that position since 2012. His role required compliance with minimum key performance indicators (KPIs) including:
- compliance with strict and closely monitored legislative obligations including those arising under the National Credit Code and required by ASIC;
- ensuring that his average handling time for call stages and adherence to schedule is in line with the standard metrics for all customer assist officers;
- meeting the quality standards established by his employer, CommSec, for customer assist officers, including following proper procedures to comply with legislative requirements.
During 2013, Mr Aly was subject to action plans to address issues with his performance. This intensified in July 2014, when he was required to complete an Enhancing Employee Performance Plan (EEPP No. 1) and then a further plan in October 2014 (EEPP No.2) when it was assessed that his performance had dropped again after completion of EEPP No. 1.
Mr Aly was also issued with a second and final warning in relation to a breach of CommSec's clean desk policy for leaving a document with customer sensitive information on his desk at the end of the day.
After the above disciplinary procedures, Mr Aly lodged a bullying application with the Fair Work Commission and sought an order that he be placed to work with CommSec in a role where he was no longer subject to the supervision of his immediate supervisor and her manager.
Commissioner Bissett dismissed the application and held that when viewed objectively, the actions of CommSec were 'reasonable management actions' taken in a 'reasonable manner', and there was no evidence to support a finding that Mr Aly was "micro-managed" as he claimed.
The Commissioner acknowledged that it is not unknown for performance management techniques to be used as a means to achieve and justify a pre-determined outcome of termination of employment, i.e. forcing a resignation or justifying termination. However, it is not the case that all performance management techniques are directed at this.
The Commission was satisfied that the approach taken by managers was reasonable as Mr Aly was:
- advised of the standards expected of him; and
- offered support and assistance in reaching the standards required including review meetings (in addition to normal weekly meetings).
This conclusion was also supported by the content of the minutes of those meetings.
As Mr Aly only worked three days a week and had to attend a performance meeting on two of those days every week, he felt he was over managed. This was regarded as a matter that managers need to be aware of in dealing with performance issues for all staff, particularly with staff who do not work every day.
The good news
The good news for HR Managers is that the subjective and even sincere perception of an employee that they are being micro-managed or managed in a way that is intended to force a resignation will not of itself amount to unlawful bullying.
Managers have the basic right to set reasonable standards and manage staff to those standards, even if staff have a different view as to the reasonableness of those standards.
The above example shows a number of best practices which all HR managers should be aiming to implement when performance managing an employee, including:
- clearly documenting required standards and minimum KPIs, and building this into the role description for the position;
- implementing formal performance improvement plans in line with the above standards;
- documenting policies which highlight behaviours that are not acceptable and why;
- providing formal warnings for breaching workplace policies, noting specific behaviours which constitute the breach; and
- documenting the minutes of performance management meetings.
All of the above steps worked to assist CommSec in ensuring it had a solid defence and could justify its actions when challenged. This is a good example for organisations of all sizes and industries to follow.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.