Are legal claims a symptom of the courage or compassion leaders should have shown?

The story is all too common – the engineer, accountant, lawyer, stock broker, line manager [insert other profession or occupation of choice] who has been promoted for their technical expertise but lacks the business acumen, emotional intelligence and fundamental leadership skills to lead a team – the common conundrum of how to make sound technical experts good leaders.

"Reasonable management action" taken in a "reasonable manner" is a defence to applications to "stop the bullying" before the Fair Work Commission as is a variation of this test for workers compensation stress claims.  The challenge lies in the construction and application of the word “reasonable” - the fine line between lawful management directions and substantiated claims.

The Safe Work Australia Guidelines on Preventing and Responding to Workplace Bullying provides examples on what may be considered bullying to the extent it is repeated, unreasonable and creates a risk to health and safety including:  

  • unjustified criticism or complaints
  • deliberately excluding someone from workplace activities
  • setting unreasonable targets
  • setting tasks unreasonably below or beyond an employee’s skill level.

The words emphasised illustrate the fine line leaders must walk between exercising management prerogative and falling foul of these provisions. Whilst performance management guidelines and counselling and disciplinary procedures are a great place to start to demonstrate the “reasonableness” of action taken, it is often the “soft skills” used to implement these that will  reduce the risk of complaint.

To take an example, situations often arise where employees are hired or promoted and it transpires that despite their best efforts, activities and pursuits – they are just not cut out for the job. The challenge for leaders in these circumstances is "calling this out" early and having the difficult or “courageous” conversation rather than letting the situation fester causing increased frustration and reduced tolerance for leaders and performance anxiety for employees.  This often escalates to absenteeism, workers compensation and bullying complaints when leaders are alleged to have crossed the “reasonable management action” line – and let’s face it, with systemic unaddressed under performance and increasing management frustration it can!

The challenge when this occurs is the boundaries start to blur as the performance challenges can lead to the absence and the absences lead to further performance deficiencies. It is critical for leaders in these situations to separate the performance issues from the temporary absence from work, bullying or workers compensation claim as these are unlawful grounds to act upon in taking adverse action against or terminating an employee. To clarify the objective performance grounds leaders are relying upon in performance managing an employee, leaders must have the courage to have conversations in person rather than engaging in email wars with employees.  Whilst written records of performance discussions are important to demonstrate the process that has been followed (and indeed the reasonableness of it), these should only be after a face to face conversation with the employee in which they have had an opportunity to respond and ask questions or request accommodations, resources, training or support. 

 A bad hiring decision or an employee that is just not right for the job, is to be distinguished from the response to employees who make mistakes, unfortunate and catastrophic as they may be. Research undertaken by Emma Seppala (Science Director of Stanford University’s Center for Compassion and Altruism Research & Education) provides great insight on this finding that whilst the traditional approach is to reprimand an employee who has made a mistake, the more effective approach is to show compassion which in turn increases employee loyalty and trust. Importantly, the research shows "creating an environment where there is fear, anxiety and lack of trust makes people shut down...their threat response is engaged, their cognitive control is impacted. As a consequence, their productivity and creativity diminish.”  The research is illuminating in its conclusion that “When trust, loyalty, and creativity are high, and stress is low, employees are happier and more productive and turnover is lower. Positive interactions even make employees healthier and require fewer sick days".

Leaders can therefore benefit as much from curiosity about people and how to engage them as they can from knowledge of the law and compliance requirements.  Good leaders have an intuition about people enabling them to not only see issues and risks, but to understand why they have materialised so they can have the courageous conversations early rather than leaving people to "wither on the vine".  Good leaders worry less about lawful and reasonable directions as they do about harnessing talent, developing employee strengths, encouraging creativity and trust and understand that sometimes employees will win, sometimes, they will learn.  In the words of Brooker Washington “few things help an individual more than to place responsibility upon them and to let them know you trust them" .  So next time a complaint hits your desk, ask yourself, is this a symptom of the courage or compassion leaders should have shown?

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances 

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