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Managing employee performance in the age of the anti-bullying regime

On 1 January 2014, Part 6-4B of the Fair Work Act 2009 (the Act), better known as the “anti-bullying regime”, came in to force.  The changes provide those workers who believe that they are being bullied at work with the ability to apply to the Fair Work Commission for an order that the bullying cease.

According to section 789FD of the Act, a worker is bullied at work if (while at work) an individual or a group of individuals repeatedly behaves unreasonably towards the worker (or towards a group of which the worker is a member) and the relevant behaviour creates a risk to health and safety.  The Fair Work Commission will make a “stop-bullying” order if it is satisfied that a worker has been bullied at work and that there is a risk that the bullying will continue.

Importantly, the Act provides that a worker will not have been subjected to bullying in circumstances where the conduct complained of amounts to reasonable management action taken in a reasonable manner.  This is an extremely important qualification, when one considers that about 70% of the “anti-bullying” applications lodged with the Fair Work Commission since 1 January 2014 have been lodged by employees who have been subjected to performance management action initiated by their employer.

So what amounts to reasonable management action taken in a reasonable manner?

Given that the relevant provisions have only been in operation for six months, there is currently very little by way of published decisions of the Fair Work Commission. However, the decision of the Administrative Appeals Tribunal in Pettiford and Comcare [2014] AAT 95 (27 February 2014) may provide some guidance. In Pettiford, in the context ofworkers compensation claim, the Tribunal was required to determine whether a psychological injury sustained by a worker was the result the employer having taken reasonable administrative action in a reasonable manner.

While ultimately the Tribunal determined that the relevant action was not reasonable administrative action taken in a reasonable manner, the Tribunal’s decision helpfully cited the judgment of Belby J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056 (later cited with approval by Cowdroy J in National Australia Bank Limited v KRDV [2012] FCA 543 at [51]), who held that:

Whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the  taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.

The practical take away from the Pettiford decision is:  provided that an employer has a reasonable basis for taking management action against an employee and that action is taken reasonably, that action will not amount to bullying.

To establish that “reasonable basis” employers should document their dealings/meetings with staff with detailed file notes of meetings that are confirmed in follow up correspondence. For example, reviews based on failure to meet attendance standards at work should refer to the employment agreement that sets out the work hours – including start and finish times – and documents the incidents of breach. There may be good reason for a staff member being late to work, or finishing early, but they should be negotiated and approved.

Despite the dire predictions from some quarters as to the effect that the anti-bullying regime would have on workplace relations, the experience to date suggests that the Fair Work Commission will only intervene in cases of genuine bullying at the workplace. Performance management, carried out properly, will not attract the ire of the Commission.

Performance management is never an easy process to engage in.  Employees typically feel threatened by it and may form the view that they are unfairly being singled out.  It is important that the process is done properly right from the outset.  If you are in doubt as to how to manage an employee’s performance, we recommend you obtain advice before beginning the process.

Luke Mitchell