Written by Stephanie Hosking
The word bullying can sometimes arise when a manager is trying to address an employee’s lack of performance. Often, employees find it difficult to deal with constructive feedback and believe they are being bullied, which may result in a WorkCover claim being lodged against the employer.
So, how can you avoid this?
Let’s take an example. Mark works in sales over the phone for an insurance company.
Paul, his manager, has been noticing that Mark’s customer service has been very poor. Mark does not answer clients’ emails in a timely manner, which results in complaints. When on the phone, Mark does not inform clients properly about policies, omitting important details, resulting in clients complaining about the policy they signed. Finally, he is rude to customers who call to complain.
The next day, Paul tells Mark he is being moved to another department with no customer interaction. Paul explains that the company is losing customers and this is impacting on their bottom line.
Mark doesn’t turn up for work the following day, and Paul receives a medical certificate stating that Mark is unfit to work for the next 4 weeks because of stress and bullying. Paul doesn’t understand as he is only trying to improve Mark’s attitude and does not believe he is bullying Mark.
Let’s look at what Paul could have done better to avoid this situation.
A manager has the right and obligation to address poor performance and take appropriate management decisions. The thing to remember is that these actions and decisions must be carried out in a reasonable manner and must not leave the employee feeling victimised or humiliated, or it might be considered bullying.
So, what is bullying at work?
Bullying occurs when:
- A person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers
- The behaviour creates a risk to health and safety.
Bullying may involve any of the following types of behaviour:
- Aggressive or intimidating conduct
- Belittling or humiliating comments
- Spreading malicious rumours
- Teasing, practical jokes or ‘initiation ceremonies’
- Exclusion from work-related events
- Unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
- Displaying offensive material
- Pressuring the employee to behave in an inappropriate manner
Bullying does not include reasonable management action carried out in a reasonable manner.
Reasonable management action may include:
- Performance management processes
- Disciplinary action for misconduct
- Informing a worker about unsatisfactory work performance or inappropriate work behaviour
- Directing a worker to perform duties in keeping with their job
- Maintaining reasonable workplace goals and standards
Any reasonable management action must be conducted in a reasonable manner. If not, it could still be considered bullying.
So, in our example, it is very likely that Mark’s claim for compensation will be successful. Let’s look at why:
- Addressing poor performance in meetings
Courts have ruled that addressing the performance of an employee in a meeting in front of other colleagues is not reasonable and may constitute bullying. By singling out an employee’s performance in a group context, this may be humiliating for the employee in question.
Team meetings are usually set up to address planning and workload and not one particular employee’s performance. 1
- Use of language and tone of voice
If the employee feels humiliated, intimidated, victimised or threatened by the other person’s words or actions, it is deemed unreasonable behaviour. Repeated unreasonable behaviour can constitute bullying. An objective test determines whether the action is reasonable and depends on the context of the situation and knowledge of those involved at the time. 2
- Moving Paul to another role
Courts have found that the change of routine in a person’s employment is not reasonable management action and fail the reasonable action test. 3 Therefore, changing an employee’s tasks and duties unilaterally to address poor performance is not reasonable and could be deemed as bullying.
Paul should have followed best practice to avoid the claim being accepted. Here is how Paul should have addressed Mark’s poor performance:
- Invite the employee to discuss the poor performance
Paul should have invited Mark to a disciplinary meeting (giving him at least 24 hours’ notice) by issuing a letter or email letting Mark know the reason for the meeting and giving him the opportunity to bring a support person.
- Meet with the employee
Paul should have met Mark in a private room where he would have explained the performance concerns in detail (providing dates, clients’ names, etc). Paul would have given Mark the opportunity to respond to the concerns and listened to what he had to say. Based on Mark’s response, Paul would have decided whether any disciplinary action was appropriate.
- Performance Improvement Plan
If it was decided that Mark’s performance wasn’t up to standards, Paul would have created a performance improvement plan with Mark outlining the key areas to improve in, to what standard and by when.
- Follow up with a letter to confirm decision & outcome
The meeting would have been followed up with a letter confirming the outcome of the meeting and disciplinary action taken by Paul.
For more information on any of these issues, please contact the KBA team on 1300 4 ADVICE.
1 National Australia Bank Limited v KRDV (2012) 204 FCR 436.
2 Georges and Telstra Corporation Limited  AATA 731 at para. 23; Re Ms SB  FWC 2104 (Hampton C, 12 May 2014) at paras 49–51.)
3 Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; (2012) 217 IR 335).