More frequently, employees who are the subject of formal or informal performance reviews claim that they are being bullied and harassed, as a way of either sabotaging the performance review or because they have genuine perceptions of unfairness or harassment.
Employers need to be careful that they walk the line between fairly and impartially investigating all claims of bullying and harassment while at the same time continuing to manage the performance review process:
- employers should pursue conduct or performance issues, even where an employee raises bullying or harassment claims. Things often go awry when the employer simply "freezes" under the weight of the employee's allegations
- employers should ensure that the performance or conduct process is procedurally fair, which includes providing an opportunity for the employee to express their allegations, investigating those allegations and then considering whether there are mitigating circumstances for the employee's conduct or performance, and
- employers should address their OHS obligations to, as far as is practicable, provide a safe workplace.
Where an employee alleges that a termination following a performance review is flawed because of bullying and harassment, the Australian Industrial Relations Commission (AIRC) has found that it is up to the employee to establish that he or she was in fact subject to bullying and harassment.
This means that unfounded allegations made as a result of performance management will not make a termination of employment harsh, unjust or unfair.
Uitdenbogerd v Australian Taxation Office 
In Uitdenbogerd v Australian Taxation Office  AIRC 39 Mr Uitdenbogerd (the employee) was employed by the Australian Taxation Office (ATO) in 2000. Following a change in the employee's direct manager, the employee's new manager noticed shortcomings in the employee's performance.
In 2005, an informal performance management process was instituted. Despite assistance being provided, the employee's performance did not improve.
During this performance review, the employee made complaints that his supervisor had bullied him. The complaint was fully investigated and dismissed. The employee appealed the finding, which was dismissed by the Assistant Commissioner of GST Compliance.
Following the review process, the employee was informed that his performance during the review period had been unsatisfactory and that he would be given a final warning and would now be subject to a formal performance management process.
Once informed of this outcome, the employee made a further complaint of bullying and harassment, this time against his supervisor's manager. This complaint was fully investigated and rejected. The employee again appealed the matter to the Assistant Commissioner of GST Compliance with the same result.
The employee was then the subject of a formal performance review process. During the course of the review, the decision maker determined that the employee's performance had not improved despite the assistance provided to him and his performance was unsatisfactory. The decision maker also determined that the employee had behaved inappropriately during the review process. The final decision was made to terminate his employment.
During the formal performance review, the employee also made a complaint about the decision maker.
The employee lodged an unfair dismissal claim with the AIRC alleging, amongst other things, that not only was he bullied and harassed by his supervisors but that his employment was terminated as punishment for his complaints of bullying and harassment by his supervisors and as a way to prevent him from raising such issues in the future. The employee also asserted that his termination of employment was in part an effort to silence his views on the activities of the ATO with regard to GST compliance.
Commissioner Williams of the AIRC determined that the ATO had:
- instituted an appropriate performance review process to assess the employee's performance
- provided him with an appropriate opportunity to improve his performance, and
- informed the employee of the possible consequences – ie the possible termination of his employment.
In determining whether the termination of his employment had been harsh, unjust or unreasonable, the AIRC determined that the evidence presented established that the employee's performance was clearly unsatisfactory and that the choice of penalty (dismissal) was open on the basis of the conclusions set out in the final report regarding the employee's performance.
The AIRC went on to consider the issues raised by the employee – namely, his assertions that there was an endemic culture of bullying and harassment at the ATO and that he had been terminated because of his complaints and in an effort to prevent him from making further complaints. Commissioner Williams concluded that the evidence led by the employee failed to establish any of the above arguments. In fact, the Commissioner concluded that the evidence only went to show that the employee himself had bullied and harassed a fellow employee.
The Commissioner found that the employee's termination of employment was not harsh, unjust or unreasonable.
Clearly, the issues raised by the employee in the context of his dismissal were serious. Had the ATO failed to investigate his claims of bullying and harassment, the outcome of the case may have been different.
Departments and agencies should promptly address issues of bullying and harassment when they arise. The process put in place to investigate allegations of bullying and harassment must be reasonable in the circumstances and appropriately address the allegations made.
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.