Could employees claim your performance management process is bullying behaviour?
ELM: Joanna, you are providing us two perspectives at the upcoming HR Law Masterclass in Adelaide this September; one on workplace bullying and the other on underperforming employees. In your perspective, do you see one of these issues outweighing the other in terms of importance or relevance in the current market?
JOANNA: I think both matters are of equal importance. They both have the potential to create significant liability for employers.
Employees who are terminated for underperformance can point to a poorly managed performance improvement process to support a claim for unfair dismissal.
Bullying behaviour in the workplace can result a toxic working environment, resulting in lower productivity, an increase in personal leave and an increase in workers’ compensation claims.
ELM: Is there a correlation between these two issues at all?
This is why the definition of “bullied” of the Fair Work Act 2009 (FW Act) creates an exception for “reasonable management action carried out in a reasonable manner”.
Reasonable management action includes appropriate steps taken by an employer to manage poor performance.
In my experience, it’s not unusual for an employee who is being performance managed to claim that the performance management process is in fact bullying behaviour.
ELM: In discussing unlawful discrimination claims, how would you suggest employers minimise risks related to this type of claim? What would be your top tips?
JOANNA: Employers should implement a clear workplace policy in relation to discrimination and the standard of conduct it requires from its employees and any other persons at the workplace. However, it’s not enough to simply have a policy in place.
All employees should be provided with a copy of the policy on commencement of employment. The policy and any amendments to the policy should be easily available for employees to review, at all times.
The employer should induct and train its employees, including its senior employees, in relation to discrimination. Employees should understand that:
- workplace discrimination is unlawful;
- the employer treats any complaints of workplace discrimination seriously; and
- engaging in discriminatory conduct in the workplace may result in disciplinary action, including the termination of the employee’s employment.
ELM: Have there been any case examples recently we can learn from; if so, what is the key take away from each?
JOANNA: In the recent decision of Newchurch v Centreprise Resource Group Pty Ltd and Others  NTADComm 1 the Northern Territory Anti-Discrimination Commission found the employer to be vicariously liable for the discriminatory conduct engaged in by its employee. It was not enough for the employer to show that it had policies and procedures in place. These policies and procedures have to be communicated effectively to employees.
In the recent decision of Hinchen v Moonee Valley Racing Club  FWC 2176, the Fair Work Commission held an employee’s dismissal to be unfair. Although the employer had a genuine basis to be concerned about the employee’s performance, the employer did not provide the employee with an adequate opportunity to improve his performance.
About Joanna Knoth:
Joanna is a Senior Associate at MDC Legal. Joanna has a Bachelor of Laws and a Bachelor of Arts, majoring in Industrial Relations, for the University of Western Australia in 2008. Joanna has a strong employment law background, which includes experience in unfair dismissal and adverse action matters, industrial strategy and dispute contingency, enterprise agreement making, restructuring and redundancy, post-employment restraints, workplace investigations, equal opportunity and discrimination. In addition to commercial work, Joanna has represented employers in a variety of forums, including in the Federal Court, the Federal Circuit Court, the Fair Work Commission and the WAIRC.
Joanna is addressing attendees at the upcoming HR Law Masterclass series in Adelaide.