Is photographing a worker’s poor performance a form of bullying?

By Michael Selinger on February 23rd, 2017

Woman Talking To Counsellor Who Takes Notes

Some types of workplace bullying are very straightforward and easy to recognise, such as intimidating physical confrontations, singling out a worker for undue criticism in public, or spreading rumours in the office.

But what happens when one of your employees, who has a record as being a hard-worker with no blemishes on his work history, comes to you with a complaint about a fellow worker?

In this scenario, the worker shows you photos he has been taking of a co-worker who he says is lowering the quality of the work the company produces.

The worker being photographed also comes to you saying this is causing unreasonable pressure on her.

Would this constitute workplace bullying?

If the photographing occurs on more than one occasion or is part of a broader pattern of behaviour directed toward the worker, it could constitute workplace bullying.

Workplace bullying is defined under the Fair Work Act 2009 (Cth) (FW Act) as repeated unreasonable behaviour toward a worker that creates a risk to health and safety. Bullying behaviour may be either intentional or unintentional.

Workplace bullying may give an employee a right to make an application to the Fair Work Commission for a stop bulling order under the FW Act.

If the worker being photographed does have quality issues with her work, some form of performance management may be warranted. However, a performance management process may still give rise to bullying if the performance management actions are unreasonable.

Before you determine whether a performance management action is reasonable, considering the following:

  • the impact of the performance management action on the worker;
  • the way the performance management action has been carried out (such as whether the action is consistent with workplace policies and procedures); and
  • the circumstances that have led to the performance management action.

Chapters B1 Bullying and P1 Performance Management in your Health & Safety Handbook contain relevant information in these areas.

Responding to unsatisfactory performance

For instance, Chapter P1 states it is important to provide regular feedback and assistance to workers as issues arise. If a worker is not performing work to a satisfactory standard, you will need to undertake performance management.

When deciding how to respond to unsatisfactory work performance, take the following factors into account:

  • how serious or significant the poor performance is, e.g. whether it exposes other workers to health and safety risks;
  • performance history, i.e. any previous record of incidents that may have been brought to the worker’s attention at the time they occurred;
  • consistency, i.e. whether similar behaviour engaged in by other workers has been tolerated or condoned by your business in the past; and
  • the worker’s personal circumstances, including their length of service.

And for more information on workplace bullying, read chapter B1 by ordering your copy of the Health & Safety Handbook today. Written in plain English by the legal experts at Holding Redlich, the Handbook will help you to avoid any costly actions brought against you for failing to deal with bullying at your workplace.


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