Performance Management Fail
An employer has failed in its bid to have a stop-bullying claim dismissed on the grounds that it engaged in “reasonable management action”.
In James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 1131 a stop bullying claim was lodged by a radiographer after the company’s HR manager sent the employee a letter headed "Disciplinary Process", which is a stepped procedure which can lead to an employee's dismissal.
The employer lodged a jurisdictional challenge that its actions should be properly characterised as reasonable management action. The Fair Work Commission disagreed. Commissioner Lewin said that for management action to be reasonable under the Fair Work Act's bullying regime, there had to be "some line of cause and effect between conduct, behavior or performance of an employee, and the relevant management action", while it also had to be a "reasonable and proportionate response to the attributes of the employee to which it is directed".
Commissioner Lewin identified a number of the concerns the employer had with the employee’s communication style and its view that the employee was “insufficiently subservient and respectful of authority”, but found the employee’s behavior warranted performance management as opposed to disciplinary action, which he observed “connotes something more sinister than performance management”.
Commissioner Lewin said there "may have been a reasonable basis for orthodox performance management processes to be routinely applied in relation to [the employee's] discharge of his duties as a radiographer, in accordance with any reasonable requirements concerning the performance of his tasks", particularly as he was a relatively new employee at the clinic. However, the "management action involved was not of this kind".
Commissioner John Lewin held that "disciplinary action taken against an employee involving multiple steps towards potential dismissal could reasonably be perceived to threaten the security of an employee’s employment, and cause them to feel threatened".
These findings are a strong reminder that performance management should not be confused with disciplinary action.
Lessons to Learn
Employers should clearly distinguish issues of poor performance and misconduct before implementing any process.
When addressing issues, management action must be a reasonable and proportionate response to the particular circumstances.
Warnings about possible dismissal may, if handled clumsily, be considered “threats” and risk being constituted as bullying.
