Can an employee make a workplace bullying claim in relation to a performance management process?
Yes, if the performance management process is initiated or conducted in a manner which constitutes workplace bullying as defined by the relevant area of law.
Workplace bullying is repeated, unreasonable behaviour towards a worker, or group of workers in the workplace including behaviour which is likely to victimise, humiliate, undermine or threaten and which creates a risk to mental or physical health and safety.
Repeated behaviour does not mean that the bullying need necessarily involve repeated instances of the same type of unreasonable behaviour. A pattern of behaviour involving a series of different types of unreasonable behaviour may constitute bullying.
There are many areas of law that an employee can use to make claims against an employer for workplace bullying (such as occupational health and safety laws, the anti-bullying jurisdiction under the Fair Work Act and the laws of negligence).
None of these areas prohibit a workplace bullying claim being made merely because it is made in relation to or arising out of a performance management process.
Namely, if the initiation of a performance management process is not for a valid reason (such as because of performance issues) and is really a covert means of bullying a worker (that is, it is an attempt to humiliate or demean them), then this can constitute workplace bullying.
Moreover, if the initiation of a performance management process is for a valid reason but is carried out in an unreasonable manner (that is, in a way which humiliates or demeans the worker), then this can constitute workplace bullying too.
However, performance management processes initiated for a valid reason and carried out in a reasonable manner will not constitute workplace bullying.
Reasonable management action does not amount to workplace bullying.
All employers have a legal right to direct and control how work is done and managers have a responsibility to monitor workflow and give feedback on performance. If a worker has performance problems, these should be identified and dealt with in a constructive and objective way that does not involve personal insults or derogatory remarks.
Reasonable management action can include:
For advice about whether your performance management processes are appropriate, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
