Disgruntled employee tries to argue performance improvement plan constitutes workplace bullying
What is the background?
In the recent case of Scott v Vita People Pty Ltd, Josie Williams [2022] FWC 24 (10 January 2022), the employee (applicant) filed a stop bullying order against his managers on the basis of a performance improvement plan (PIP) that had been implemented and been followed.
The employee alleged and contended that the PIP had grounds that were fabricated, untrue, was a form of micromanagement and were a complete misrepresentation of his performance.
What is workplace bullying?
Before considering the facts and key learnings from the decision, it is important to address some of the key issues that this decision considered.
Firstly, what does constitute bullying?
Bullying happens at work when:
a person or group of people repeatedly behave unreasonably towards another worker or group of workers; and/or
the behaviour creates a risk to health and safety.
What is not bullying?
Secondly, what does not constitute bullying?
Reasonable management action that's carried out in a reasonable way is not bullying.
However, management action that isn't carried out in a reasonable way may be considered bullying.
What are stop orders?
The Fair Work Commission (FWC) may make orders to stop bullying or sexual harassment.
It must be stated that the FWC does not have the power to order any monetary compensation – the orders are there to get workers back working in a bullying-free environment as quickly as possible, while taking steps to remove future bullying risk.
What happened in the Scott v Vita People Pty Ltd case?
The applicant lodged the application for stop bullying orders after his manager, with the backing and support of senior leadership and HR, placed him on a performance improvement plan (PIP).
The applicant contested the PIP specifically in relation to his failure to meet quarterly performance targets relating to phone contact with and classification of customers.
The applicant contended the performance targets were irrelevant and unnecessary, and not necessarily aligned to key performance indicators (KPIs).
The applicant also claimed that the PIP was excessive because his previous performance had been satisfactory, and he had not been consulted informally on the issues contained within the PIP.
Was this bullying or reasonable management action?
In her decision, Commissioner Hunt noted that the test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was “more reasonable” or “more acceptable”.
In her decision, Commissioner Hunt noted that the manager had ‘suitably and responsibly’ informed the applicant of his obligations and given appropriate support and supervision to assist him in improving his performance, but instead of doing what her was instructed to do, the applicant continued to argue over the requirements for several months, during which time he failed to achieve the targets set.
Did the FWC issue stop bullying orders?
In this decision, the FWC was satisfied that the employer took reasonable management action in a reasonable manner, and therefore dismissed the application.
Takeaway points
What can employers take from this decision:
Firstly, it clarifies reasonable management action to include:
reasonable and lawful directions;
requiring an employee to undertake the inherent requirements of their role;
performance appraisals;
requiring an employee to comply with a policy;
requiring an employee to provide reports on tasks and targets; and
requiring an employee to undertake a task or job which is part and parcel of their role.
Secondly, employers can, should and must ask employees to do their job.
Lastly, the FWC will not entertain issuing stop bullying orders if the disciplinary and performance management process is found to be reasonable.
For further information please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
