Performance management and bullying – Do you know the difference?
Employers can performance-manage employees without successful claims of bullying or workers’ compensation, provided they have robust policies and procedures in place that enable them to prove that they have complied with the law.
A good example of this is in the legal case Lim v Comcare (2016).
A union acting on behalf of an employee claimed that the employee’s stress-related illness arose from management action that amounted to a ‘sustained campaign of bullying and harassment’.
The Administrative Appeals Tribunal found that the exclusion for reasonable management action, called ‘reasonable administrative action’, under the Safety Rehabilitation and Compensation Act (1988), disentitled the claim as it arose during appropriate performance management.
The exclusion for reasonable management action means that claims (e.g. bullying) cannot be successful if they result from reasonable management action.
To determine whether management action is reasonable – and therefore whether the exclusion applies – the courts look at the legal duties of the employer and employee, and then review what has occurred against those duties.
The law is very clear that employees are required to undertake their duties honestly, competently and in the best interests of their employer.
Employees are also required to comply with the lawful and reasonable directions of their employer, including complying with the policies and procedures of the business.
3 types of documents all employers must have
For employers to show that they have legally managed their staff, they must have these three documents:
- Employment contracts, which describe the job and the employee’s obligations.
- Job descriptions, which set out the employee’s duties and responsibilities.
- Policies and procedures, which describe what good behaviour is and how bad behaviour will be managed.
Legislation assists in managing people too
The Fair Work Act makes it clear that failure to comply with a lawful and reasonable direction is serious misconduct.
In addition, health and safety legislation imposes duties upon workers to comply with directions relating to health and safety.
Health and safety law provides you with the foundational steps when it comes to managing people.
‘Reasonable practicability’ looks at the presence of any hazard (physical or psychological), the associated risks, and the control that eliminates or minimises those risks to provide a healthy and safe workplace.
If an employer follows this, it is acting in a lawful and reasonable manner.
How your legal obligations can help in performance management
You can combine your health and safety obligations with your workplace obligations to make the following clear:
- Underperformance and poor behaviour can be a hazard. Employers are obliged to address this with the employee and the employee is obliged to perform in accordance with the employer’s directions.
- If the employer addresses the issue in accordance with the policies and procedures of the business, it is undertaking a lawful and reasonable enterprise. It is not bullying to point out a failure in performance or misconduct.
- If an employee claims feeling stressed or upset, the employee is disclosing a hazard for which the employer needs to reflect, determine the level of risk and implement an appropriate control, e.g. a short break or access to a support person.
- If the employer’s decision at the end is fair, based on the nature of the underperformance or misconduct, it acts in accordance with the law and its own policies and procedures, and it communicates that generously, its conduct is unimpeachable. This gives rise to the reasonable action defence in both bullying and workers’ compensation law.
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