Recent cases have brought the subject of workplace bullying to the forefront again.  Specifically the Fair Work Commission has, through recent decisions, highlighted its willingness to find in the employers favour when it can be shown that the alleged ‘bullying’ was actually appropriate performance management.

Key to these findings is often that when the employee raises concerns about bullying, that they are handled appropriately by the business.  The appropriate use of fairness and an established procedure to address bullying claims is a businesses best tool for ensuring that bullying does not get confused with genuine performance management.

What do you need to do?

Businesses should ensure that both performance management and bullying claim processes are well defined and well understood by line managers.  Small things, like letting an employee know that a meeting is about their performance in advance of the meeting starting – may seem like small things to a line manager, but are vital for ensuring procedural fairness and for ensuring that the employee is prepared for the meeting.  Similarly a cold or callous response to a bullying claim from a line manager can result in a breach of procedural fairness, which would find in favour of the employee, even if it is found that there was no bullying.

These procedural elements must be well understood and followed to the letter if the business is to have the confidence to manage staff effectively, and if the staffs safety and right to work free from bullying is to be protected.

ACAPMA Members are reminded that they can access resources and support from the association in the areas of performance management and preventing and dealing with bullying in their businesses.

Understanding bullying?

All workers have the right to work in a safe working environment, and all businesses have a duty to ensure that their workers are protected from harm.  This includes the physical and mental harm that comes from bullying.

Bullying is defined as the ‘repeated, unreasonable behaviour of one party that creates a risk to the health and safety of the victim’.  Bullying can be verbal, physical or even environmental.  Bullying has a negative impact on the safety of the victims as well as a destructive impact on the business.  Some bullying may include, escalate to or constitute crimes, such as assault.

Some practical examples of bullying include;

  • aggressive and intimidating conduct,
  • belittling or humiliating comments,
  • victimisation,
  • spreading malicious rumours,
  • practical jokes or initiation,
  • exclusion from work-related events, and
  • unreasonable work expectations.

 Responding to bullying claims

In responding to any bullying claim it is important that when the issue is raised, either by the victim or ‘through the grapevine’, that the business treats it seriously, protects all employees, investigates, reports and puts into place appropriate corrective measures.  In many cases after a claim is raised and investigated the report will be that there was not ‘bullying’ as defined in the Act, but rather a misunderstanding or an incident of poor professionalism.  This type of finding in a report is appropriate if the circumstances warrant it.

Every bullying claim must be treated seriously, but not every bullying claim will result in a finding of bullying.  Until the report and findings are presented however, the business must respond as if serious bullying had occurred.

Bullying and Performance Management

When managing poor performing staff in the business it is important for the line managers to understand, and comply with an appropriate performance management process that ensures procedural fairness.  Key elements to remember include; providing notice of any performance meeting, providing information that the meeting is about performance, allowing for the presence of a support person, outlining the performance issues and expectations, seeking the employees responses to performance issues or incidents, documenting the meeting and any commitments or outcomes, providing the employee with a copy of the document, reviewing performance in an ongoing fashion to ensure compliance.

Here to help

ACAPMAs Employment Department is available to assist Members on 1300 160 270 or you can email employment@acapma.com.au.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by  calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals its free for members.

ACAPMA membership is affordable at only $770 per year for a single site, which represents great value with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Learn more about ACAPMA membership here.

SHARE THIS ARTICLE: