The Fair Work Commission (FWC) has rejected a long-serving employee’s bullying claim after it accepted that her employer took reasonable management action in performance-managing her after she resisted changes to workplace practices.
Implications for employers
Requiring an employee to perform work in accordance with their position description is not considered to be bullying behaviour, even if, for a long period of time, that employee had carried out their role in a particularly different way. Provided that the requirement does not surpass the relevant position description and that additional training is offered where required, increasing the work efforts of employees in a moribund situation, and performance-managing any who resist such changes, is well within an employer’s managerial rights.
Ms AB, a case worker consultant with the Salvation Army Employment Plus, made an application under s 789FC of the Fair Work Act 2009 (Cth) (FW Act) for an order to stop bullying conduct she alleged had taken place at her workplace. The bullying complaint was directed at the employer and two other persons named in the application, Mr AC and Ms AD. The employer raised a jurisdictional objection to the application, submitting that the actions complained of can be characterised as reasonable management action undertaken in a reasonable manner.
For conduct to be regarded as “workplace bullying”, s 789FD(2) of the FW Act requires that the management action complained of must have been unreasonable, and that the action was carried out in an unreasonable manner.
Ms AB had been employed in her position for approximately 9 years. Her role, as set out in her position description, was to undertake a number of activities to assist job seekers in their quest to find employment. One such responsibility was the case management of “stream 1” to “stream 4” job seekers.
These “stream” allocations came about as a result of an assessment of characteristics of job seekers in the Centrelink system. A stream 4 client may be somebody who is recently out of prison, may have drug or mental health issues and is not considered job-ready. Stream 1 clients on the other hand are generally job-ready and are considered capable of finding work with very little guidance.
For the first eight years of her employment, Ms AB was only servicing stream 1 clients. The reason for her specialisation in these clients was not clear. In mid-2014, all staff of the employer were advised that all consultants, including Ms AB, would have a ‘rainbow caseload’, that is, that they would be servicing stream 1 to stream 4 clients. Ms AB objected to dealing with stream 4 clients, claiming that doing so made her feel unsafe.
On a subsequent assessment of her performance plan, Ms AB was shown to have failed to meet all of the essential requirements of her performance criteria, most notably being marked as “not meeting expectations” in relation to her failure to service stream 4 clients. As such, Ms AB claimed that she had been unreasonably performance managed and micro-managed.
Commissioner Lee found that the behaviour alleged by Ms AB to constitute workplace bullying was reasonable management action undertaken in a reasonable manner. After considering evidence including a recent Worksafe inspection, the Commissioner was satisfied that there was no safety risk associated with the requirement for Ms AB to work with the full “rainbow” of clients rather than just those who were job-ready.
The Commissioner also found that it was not unreasonable for Ms AB’s refusal to work with stream 4 clients to become a matter of note in her performance appraisal, given that it was and always had been a part of her position description.
At the time, changes were taking place within the company concerning the improvement of staff management and efficiency. The employer sought to implement a high performance culture to turn around losses that had previously required the agency to be subsidised.
The employer’s new approach to performance management was a major driver of Ms AB’s bullying claim. While in the past the company had failed to appropriately assess individual employee performance, the introduction of doing so and the manner in which it had been introduced and administrated was not unreasonable.
Although the shift from a long period of moribund management to a performance-focussed enterprise represented a significant change with a personal impact on Ms AB’s working environment, the fact that this change occurred and the method of its implementation did not amount to bullying behaviour.
A.B.  FWC 3353