Consider this familiar workplace scenario: an employee is under performing and their manager is providing feedback to get the team member back on track. Like many managers, they are a little “clunky” in how the feedback is presented. All too often, the employee takes exception to this, considers the process unfair micro-management, and accuses the manager of bullying. It’s a scenario I’m often faced with when undertaking training programs on team performance, and managers are increasingly conscious of this issue when providing feedback, leading to a breakdown in team performance.

Our philosophy is that managers should have the skills to provide ongoing, sensible feedback to team members through candid conversations, and the workplace should have a culture of open and trustworthy feedback. There are many reasons why things go off track when managers provide feedback. Sometimes, the manager is under-skilled in managing performance and the actions being undertaken to improve performance skate dangerously close to being unreasonable. On the flip side employees are often confused by the difference between reasonable management actions and bullying. The result being that workplace underperformance is not managed, accusations are made, and productivity suffers.

Managers and supervisors must remember they have rights and an obligation to take appropriate management action if the candid conversation process has not worked. They need to be able to effectively direct and control the way work is carried out, respond to poor performance and if necessary, take disciplinary action. Allowing poor workplace performance to remain unaddressed can have a negative impact on workplace culture, leading to reduced productivity, high staff turnover, poor morale and sometimes litigation.

The Fair Work Act protects employers from a bullying claim if they are carrying out what they call ‘management action in a reasonable manner’. At the heart of “reasonable” is mature feedback and communication between the manager and the team member. Let’s explore this wording and compare examples of bullying and reasonable management action.

Three key criteria is often used by the court if a performance management process turns into an alleged bullying claim:

  •  The behaviour must be management action
  • It must be reasonable for management action to be taken
  • Management action must be carried out in a reasonable manner

 Examples of management action:

  • Performance appraisals
  • Ongoing meetings to address underperformance
  • Counselling or disciplining an employee for misconduct
  • Modifying an employee’s duties including transferring or redeploying the employee
  • Investigating alleged misconduct
  • Denying the employee a benefit in relation to their employment
  • Refusing an employee permission to return to work due to a medical condition.

 Examples of reasonable management action:

  • Setting reasonable performance goals, standards and deadlines
  • Rostering and allocating working hours
  • Transferring a worker for operational reasons
  • Deciding not to select a worker for promotion where a reasonable process has been followed
  • Informing a worker of their unsatisfactory work performance
  • Informing a worker of their unreasonable or inappropriate behaviour in an objective and confidential way
  • Implementing organisational change or restructuring
  • Taking disciplinary action including suspension or termination of employment

 Examples of actions carried out in a reasonable way:

  • Communicating in an appropriate way
  • Providing notice of the conversation
  • Following organisational policy and procedures
  • Conducting fair investigations into alleged breaches
  • Allowing the team member to respond to feedback
  • Making proportional decisions and recommendations (e.g; do not commence disciplinary procedure because someone is late for work once or twice)

 Examples of bullying and unreasonable behaviours:   

  • Being aggressive, intimidating or humiliating
  • Using bad language or rudeness
  • Teasing, playing practical jokes or spreading rumours
  • Standing over employees for regular, extend periods of time to observe their work
  • Exclusion from team activities that are not relevant to the reasonable management action
  • Unreasonable workload expectations; whether it be too much, too little or withholding information necessary to complete the job

So, the question is as a manager, how can you stay on the right side of the reasonable/unreasonable divide?

  • Determine the issue and the employee involved
  • Communicate with the employee in an open, clear and practical manner
  • Focus on the problem, not the person
  • Set goals in consultation with the employee so that the issues are clear, and the employee knows how they can improve their performance

Other ways to stay on the right side of the divide is to have good systems and policies in place to assist with employee issues. These procedures support your managers to provide guidance and structure. They will also be used to confirm reasonable management action was exercised in the event of a bullying accusation.

Systems and tools can include:

  • Clear performance standards and minimum Key Performance Indicators, linked to the performance description for the role
  • Formal performance improvement plans
  • Policies which clearly highlight behaviours that are not acceptable such as value statements, codes of conduct etc
  • Formal warnings for breaching workplace policies, noting which behaviours have breached the policies, codes or values.

In short, develop a culture and a manager skill set of open and candid conversations within the workplace when discussing performance, and support and train your managers to provide respectful and candid feedback when escalating performance conversation. Follow management policies and procedures, and make decisions that are proportional when providing such feedback.

If you would like a sample Performance Planning template for managing underperformance, please contact us.

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Case Study

Bullying laws introduced in 2014 created some confusion in relation to performance management discussions.

When the new laws were announced, there was concern among some employers that they would open the floodgates to employee allegations of bullying.

Chief among these concerns was that employees would use the Fair Work Commission’s expanded jurisdiction to bring claims against their employers alleging that they were being bullied by their boss as part of performance management discussions.

A 2014 decision of the Fair Work Commission shed light on how the commission will interpret the meaning of “reasonable management action carried out in a reasonable manner”.

In The Applicant v General Manager and Company C [2014] FWC 3940, the applicant made an application to the Fair Work Commission for an order to stop bullying directed at her by her manager and employer, a major national listed company.

The company had implemented a strategy to rectify the unsatisfactory financial performance of the applicant’s department, which involved a change to the applicant’s reporting requirements and meant that she had to report to the general manager of state operations. The applicant alleged that the general manager had bullied her by his unreasonable behaviour, which included micromanaging her, raising his voice, using an aggressive tone, and undermining her by dealing directly with members of her team.

Commissioner Roe found that, in all of the circumstances, and given that the general manager had overall responsibility for the department (and was justifiably concerned about finding ways to improve its economic performance), the following actions by the general manager constituted “reasonable management action carried out in a reasonable manner”:

  • requiring more frequent reporting (however, daily reporting would have constituted “intimidatory micro-management”)
  • itemising the matters about which he felt the applicant should have kept him informed;
  • raising his concerns about the applicant’s failure to be forthcoming with information and participate in meetings;
  • forcefully communicating in both words and body language that the applicant’s way of interacting with him was unacceptable (however, if such behaviour had been repeated it “should be considered in a different light” and should be found to be unreasonable or bullying behaviour)
  • making direct inquiries, without involving the applicant, to members of her team;
  • requesting information about two unresolved complaints by her team members;
  • raising concerns about the team not making budget;
  • directing the applicant to go home when she came to work after two days of sick leave without a return-to-work clearance from her doctor;
  • determining priorities in the use of resources by setting a requirement that team members not accompany the applicant on visits to clients; and
  • refusing a general request that all meetings be witnessed – however, in light of the applicant’s anxiety and her recent bullying complaint, the refusal “was not carried out in a reasonable manner”.