Performance Improvement Plan is not workplace bullying says Fair Work Commission

Performance Improvement Plans and Performance Management is not Workplace Bullying

The issue of workplace bullying has become a prevalent situation in workplaces of late especially those dealing with:

Under resourced workforces
Hard to manage or underperforming staff
Lack of new staff coming in (or difficulty recruiting more)
Losing key personnel and those in management roles
Challenges around vaccination requirements and Government health orders
Restrictions around work including higher use of work from home or virtual teams

Performance Improvement Plan

In the case of Scott v Vita People Pty Ltd, Josie Williams [2022] FWC 24 (10 January 2022) an employee filed a stop bullying order against his managers on the basis of a performance improvement plan (PIP) that had been implemented and been followed. The employee claimed that the PIP had grounds that were fabricated, untrue, was a form of micromanagement and were a complete misrepresentation of his performance.

After receiving notice that he was to be placed on a PIP the employee gave objections to this and acted aggressively towards his manager. Evidence was given that the employee had previously been placed on two PIPs which concluded without disciplinary action. The Commissioner noted that these previous PIPs were issued by male managers to the employee leading to the Commissioner querying whether the employee objected that these directives were given by a female manager – this was denied by the employee.

The employee had avidly stated his disinterest in completing the tasks set by his managers and expressed his reluctance to focus on targets as he wished to focus his abilities elsewhere. Targets were set by the company, Vita People, and not the manager herself, these were deemed to be reasonable. An objective test was applied from the principles of Ms. SB[1] to determine whether the conduct from the manager was reasonable.

Identifying Workplace Bullying

Workplace bullying has previously been defined as where “a person or group of people repeatedly behave unreasonably towards another worker or group of workers and the behaviour creates a risk to health and safety.”[2] The question was whether the actions of the managers constituted this to which Commissioner Hunt believed she did not.

“The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”.

Commissioner Hunt continued to define: [at 232] “In general terms, this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable.

• a course of action may still be “reasonable action” even if particular steps are not;

• to be considered reasonable, the action must also be lawful and not be “irrational, absurd or ridiculous;

• any “unreasonableness” must arise from the actual management action in question, rather than the applicant’s perception of it; and

• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”

(our emphasis added)

Commissioner Hunt of the Fair Work Commission (FWC) determined that the various events and actions by the employer were not unreasonable. The Commissioner also strongly implied:

The employee had a misogynistic approach to the managers and this was a reason (potentially the prime reason) for failing to follow the PIP and act aggressively
A genuine apology may lead the employer to consider halting any disciplinary action

What this means for employers – 3 reasons why the Fair Work Commission sided with the Employer

Reason 1 – Management Action just must be reasonable not perfect or ideal.

The perception of the employee that the actions taken by management that it is bullying will be fully defended if the Employer can show reasonable management action. An example of what is reasonable management action include:

PIPs
Reasonable and lawful directions
Requiring an employee to undertake inherent requirements of their role
Performance appraisals
Requiring an employee to comply with a policy
Requiring an employee to provide reports on tasks and targets
Requiring an employee to undertake a task or job which is part and parcel of their role

Reason 2 – Employers can ask an employee to do their job.

It is perfectly reasonable management action for a manager to require an employee to do their job and undertake their duties and responsibilities. Failing to provide reports, miscommunication with stakeholders and performance management discussions are and should be considered reasonable.

Reason 3 – Misogyny and disrespect are frowned upon by the Fair Work Commission.

Not surprisingly attitudes that are considered misogynistic and disrespectful are not looked favourably in a stop bullying order. An employee cannot expect to react unreasonably in circumstances where the actions and directions made are within the ordinary bounds of a company policy or are an inherent requirement of the position.

Commissioner Hunt shared her views and provided a strong basis for employers who wish to implement a PIP process for an employee. She backs reasonable management and confirms that a PIP is a ‘remedial activity’ rather than a form of disciplinary action.

Performance Management Training can limit liability

The team at NB Lawyers – Lawyers for Employers undertake Performance Management Training Workshops and tackle issues such as:

What is performance management?
Dealing with misconduct
Undertaking investigations
What is reasonable management action?
How to deal with workplace bullying and sexual harassment claims?

NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help.

Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.

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Written By

Jonathan Mamaril

Director

NB Lawyers – Lawyers for Employers

[email protected]

+61 (07) 3876 5111

Assisted by

George Abou Sleiman

Graduate Law Clerk