Reasonable Performance Management is Not Bullying

By 24 August 2018Workplace

An employee’s application for an anti-bullying order has failed after the Fair Work Commission (FWC) confirmed that taking reasonable steps to manage an employee’s performance is not bullying.

Background

The matter of Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears [2018] FWC 2906 arose after a former ‘star’ employee of AGL Macquarie Pty Ltd (AGL) was placed on several performance improvement plans (PIPs).  The employee argued that the implementation of the PIPs was an act of workplace bullying and filed an application with the FWC for an order to prevent bullying occurring at work under section 789FD of the Fair Work Act 2009 (Cth) (FW Act).

The FWC heard that the employee was a long-serving engineer for AGL and received a promotion in 2013 following his “distinctly positive” performance. However, the employee was later placed on two PIPs, the initial PIP in March 2017 and a revised PIP in June 2017.

The employee’s supervisor gave evidence that the employee had been placed on the PIPs after failing to meet expected standards.  The FWC heard that these standards had been communicated to the employee by his supervisor prior to the introduction and implementation of the PIPS.

The employee argued that the PIPs were “unreasonable management action” on the basis they related to matters outside the scope of his role description.

FWC Ruling

The primary issues for determination were whether the decision to introduce or revise the PIPs was justified, and whether they were implemented in a reasonable manner.

The FWC found that the employee’s performance justified the implementation of the PIPs and that the actions and expectations in the PIPs could be achieved and were therefore reasonable.

Importantly, the FWC noted that while the positive feedback the employee had previously received may have caused him to become accustomed to positive feedback, any unreasonableness must arise from the actual management action itself rather than the employee’s perception of it.  The test to be applied is whether the management action taken was reasonable.  In order to be reasonable, the action does not need to be perfect, this means:

  • a course of action may still be considered reasonable even if a particular step in the process may not be;
  • management action must be lawful and must not be ‘irrational, absurd or ridiculous’;
  • management action must comply with established policies or procedures.

Overall, determining what is reasonable will be a question of fact and the test to be applied is an objective one.

Ultimately the FWC held that the PIPs were put in place as a genuine attempt to improve the Employee’s performance and that there was no evidence of bullying.  The FWC accepted that the supervisor had complied with AGL’s company policies by providing mentoring and an opportunity for the Employee to improve his performance prior to the PIPS being implemented.

The application for an anti-bullying order was dismissed.

Lessons for Employers

This case not only confirms employer guidelines around the implementation of management action, but helps to clarify what management actions will and will not constitute bullying.

Importantly, managers and supervisors should remember that they can take management action, particularly with respect to the performance of employees, provided that such action is reasonable. In order to limit the risk of an employee filing an application for an anti-bullying order following the implementation of a PIP, it is recommended that employers:

  • ensure all performance and disciplinary matters are documented;
  • provide clear instructions, training and information to employees particularly with respect to the scope of their role and expected standards; and
  • ensure that if management action is taken, it is justified and conducted in accordance with any established policies and procedures.

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