Managing staff in the workplace, particularly poor performing staff is difficult at the best of times.  This difficult situation is often complicated when changes are required at the workplace to address the safety concerns of staff about the conduct of the managed staff member, and often result in counterclaims of bullying by the managed staff member.  A recent case involving performance management, mental illness, location moves and a bullying counterclaim provides some welcome clarity on where some of the murky lines of fairness lay.

Case Review

A casual employee, after being performance managed for sleeping on the job, taking breaks early, leaving site without notice and failing to do requested tasks, lodged a complaint with internal HR that his supervisor did not take account of his mental illness.  HR outlined that the supervisor would receive sensitivity training.

A mere few months later the employee was terminated following an incident onsite where he had to be escorted from the workplace by the police for confronting the supervisor, threatening him and trapping him in his office.

‘This incident followed other warnings for the use of violence and threatening language at work.

The employee claimed unfair dismissal and the case was settled with mediation and an agreement to reinstate the employee at a different work location to ensure no contact with the supervisor.

Despite the employee accepting the reinstatement claimed that he did not understand that he had to go to a different location and refused to present for work, refused to read emails from the business, issued ultimatums in emails and told staff and the HR manager “you made me wat to kill myself”.

The employee applied for Stop-Bullying-Orders stating that the business was bullying him by preventing him from entering the original workplace.

The business argued that it was discharging its safety requirements in addressing the legitimate concerns of workers at the original workplace that the employee was a risk to them.

In addressing the case Commissioner Lee noted “While allegations of bullying are made against various individuals, it is apparent that the central complaint made by [the employee] is that [the business] has determined that he is not to return to [the original workplace” and that there was indeed “clear evidence that the staff at [the original workplace] have legitimate concerns bout working with him”.

In dismissing the application the Commissioner noted that the relocation of the employee to a new workplace, in response to the legitimate concerns of the staff there, was reasonable administrative action and therefore not bullying.  Indeed he went further and noted “In fact, the evidence shows an organisation that has turned itself inside out to accommodate the needs of [the employee]”.

Lessons to all businesses

“Anytime there is a performance management process there is layers of complicating facts and situations.  That is why there is no simple answer on how to respond to a particular situation, each is different.  In this case the finding was that it was fair and not bullying for the business to remove the employee from the workplace after a pattern of failing to follow instructions and violence and unprofessional conduct led to genuine concern by other workers at that location” explains ACAPMAs Elisha Radwanowski.

“The fact that the employee was facing mental health struggles is something for the business to consider, which it did in offering relocation to another workplace, however, ultimately it does not excuse the employee from following lawful reasonable directions and it does not automatically make all management action into bullying.  The situation of the employee must be considered, but a business has a duty to all employees and must respond reasonably given that duty.  When it does so, this case shows, that the business will be considered to have acted fairly and reasonably, and despite the employee being dissatisfied with the management action, that does not make it bullying” concludes Elisha.

Here to Help

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice, Members are reminded that they can seek further advice on their situation by  emailing employment@acapma.com.au  its free for members. ACAPMA membership is affordable at only $810 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click  here to learn more about ACAPMA membership.

Elisha Radwanowski BCom (HRM & IR)
ACAPMA

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