The Fair Work Commission dismissed a bullying application because it was satisfied that the alleged bullying conduct was actually performance management carried out in an ‘ordinary fashion’.


Implications for employers

While the language of the express exclusion from bullying under the Fair Work Act (ie. ‘reasonable management action carried out in a reasonable manner’) is not used in this decision, this case supports the position that a genuine and properly conducted performance management process will not constitute bullying. It is important that such processes are fairly conducted and documented so that the justification for, and conduct of, the process can be supported.

Background

The applicant, a senior employee with a Commonwealth department, had previously raised a number of concerns regarding the way in which his managers and supervisors’ treated him. It appears that, after initial inquiries, the respondent concluded that the conduct of at least 2 previous managers was linked to performance management of the applicant.

The applicant also made two complaints against a senior manager, Mr PR. In response to these complaints, an internal investigation was conducted which concluded there was no evidence of bullying.

Mr PR, and a number of the applicant’s previous managers, had concerns with the applicant’s performance. In or around December 2013, a 5 week performance improvement plan (PIP) was implemented for the applicant under which Mr PR was required to give continual feedback to the applicant regarding his performance issues. A number of the applicant’s examples of bullying related to issues required to be addressed under the PIP.

In March 2014, the applicant filed a bullying application in which he alleged that senior management had allowed Mr PR to freely micromanage his performance with the malevolent motivation of establishing a reason to terminate his employment. In the application it was alleged that (amongst other things) Mr PR ‘…tells me to go back where I came from’, ‘…constantly intimidates me to terminate my employment’ and has ‘…affected my health adversely…’. The applicant also alleged that Ms DN had engaged in intimidating conduct including during the hearing of the matter.

Decision

Senior Deputy President (SDP) Drake found that although the applicant held an honest belief that Mr PR had managed his performance to establish a reason to terminate his employment, this was unjustified and Mr PR’s concerns regarding the performance of the applicant were not motivated by an intention to dismiss him or otherwise bully him. SDP Drake also found that it was the applicant’s misguided perception of Mr PR’s malevolent motivation and the apprehension of termination of his employment which gave rise to his adverse health consequences (not bullying).

SDP Drake held that the respondent’s managers had managed the applicant’s performance in an ‘ordinary fashion’ and that the material demonstrated an ‘ordinary exercise of management prerogative’. The Commission effectively found that the manager was simply reviewing performance in an ordinary way with no ill intent or motivation. On the flip side, the applicant was not cooperating in the process and his allegations were found to be either unsupported or unjustified.

SDP Drake found that neither Mr PR nor Ms DN, nor any other employee of the respondent, had engaged in bullying. As such, the application was dismissed.