Bullying and reasonable management action

Let’s not confuse performance management and disciplinary action

This confusion is based on an historical and outdated concept. It’s what I call the ‘old paradigm’of performance management.

Performance management is the management of performance or behaviour.

This should be happening on an ongoing, informal and daily basis as manager’s work alongside their staff. It is a manager’s role to continually monitor and assess capability, performance and behaviour and provide feedback.

It is a sign of both respect and appreciation for staff and the contribution they make to a business for them to be offered timely and constructive feedback. To wait to provide feedback at a 6 or 12 monthappraisal meeting or to evoke a disciplinary process as a vehicle for providing feedback is discourteous and unjust – and fits within the ‘old paradigm’.

The ‘new paradigm’ of performance management is the clear message that as manager, I value your contribution and effort and I am supporting you to make continuous improvements – not only to deliver on the standard of work expected (or show the expected behaviours), but also for you find enjoyment and satisfaction in your work.

The ‘new paradigm’ says performance management is a message of ‘we want to keep you in this business – how can we support you?’

If a manager’s intention is one of support and investment in people, how could they possibly wait until the staff member is failing so poorly that management want the staff member to be exited from the business – which is a possible result of a disciplinary process?

If a staff member chooses not to act on the timely and constructive feedback offered (and other forms of support like coaching, updated training, mentoring etc.) and their behaviour or performance does not improve, then a disciplinary process can be evoked. However, even within a disciplinary process, the intention should still be one of support and guidance focusing on keeping the staff member in the business. Only then, if the staff member chooses not to accept this support and guidance, should termination of employment be considered.

A staff member deserves to know that should they not respond positively to an informal feedback process, then a formal performance management process will be enacted and failure to respond positively to this may result in a disciplinary process, which may result in termination of employment.

[2015] FWC 1131 – the case of Willis v Gibson, Capital Radiology Pty. Ltd. provides good insight into relevant management action carried out in a reasonable manner. Commissioner Lewin made several statements that should be taken note of:

  • “a requirement for relevant management action to be reasonable is that there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action, and that the management action is a reasonable and proportionate response to the attributes of the employee to which it is directed.”
  • there must be a clear “link between conduct, behaviour, or work performance, which constituted misconduct or unsatisfactory work performance by Mr Willis which would warrant “disciplinary action”.
  • “differences of opinion [does] not reasonably warrant “disciplinary action”.
  • “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. Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action”.

All managers should be informed by HR that threatening a staff member’s security of employment when their behaviour/action does not warrant disciplinary action may be a form of bullying.

For more information about [2015] FWC 1131 click here 

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