Clifford Gouldson Lawyers

Are you performance managing or bullying?

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In a recent case heard by the Fair Work Commission, a senior public servant sought to have the Fair Work Commission overturn its finding that his employer was performance-managing him as opposed to bullying him.
In the first instance, Senior Deputy President Lea Drake ruled that she was satisfied that neither the employee’s managers nor his colleagues bullied him and instead their actions merely demonstrated an “ordinary exercise of management prerogative”.
This decision was affirmed when the employee’s application for leave to the appeal the decision was rejected by the Full Bench.  
In its decision, the Full Bench noted that Senior Deputy President Lea Drake’s task was to “consider the evidence before her and whether, assessed objectively, the evidence constituted bullying behaviour and, in that context, whether it comprised no more than reasonable management action carried out in a reasonable manner”.
The Full Bench noted that the employee was not performing at a standard expected of an employee and that the evidence presented “overwhelmingly” supported the decision that the employee was being performance managed, not bullied.
The lesson
With the rise in bullying and harassment claims being brought against employers, it is ever so important for employers to ensure their practices and procedures (especially performance management procedures) are both a reasonable management action carried out in a reasonable manner and an ordinary exercise of management prerogative.
It is important employers carry out clear, consistent and reasonable processes when performance-managing employees to ensure that such actions are not characterised as bullying.
Having clear and structured procedures in place is one major step towards ensuring your management processes comply with your obligations under the relevant law.
Should you have any concerns as to your current performance management processes or you would like to know more, please do not hesitate to contact our Workplace team.

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