​Negative performance appraisal – is this bullying?

​Negative performance appraisal – is this bullying?

By Paul Munro on 19 June 2018
Can a negative performance review be construed as bullying?

This question was recently sent to our Ask an Expert service.
 
Q We are currently conducting annual performance reviews of all employees. One employee has received a critical performance review from his manager. The manager counselled the employee on how his performance could be improved.

The employee has claimed he is being bullied by the manager and has threatened to resign and lodge a complaint with the Fair Work Commission.

Would the manager’s behaviour in this circumstance constitute bullying?

A Employers need to be aware what behaviour constitutes bullying and what preventative measures can be taken to control bullying in the workplace. Bullying is where an individual or group of individuals repeatedly behave unreasonably toward a worker and it creates a workplace health and safety risk. It is not a one-off incident. Proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is created.

To make a bullying claim to the Fair Work Commission, a person must be a ‘worker’, which means an employee who resigns his/her employment cannot make a bullying complaint under the Fair Work Act.

The Fair Work Commission's anti-bullying charter is to improve workplace culture and prevent bullying rather than ordering compensation or damages to a claimant. 

Bullying does not include:
  • genuine and reasonable disciplinary procedures
  • genuine and reasonable performance management – constructively delivered feedback or counselling (as in the above case), or
  • directing and controlling how work is done.
In this case, the employee has reacted negatively to an objective performance management appraisal, so this would not constitute bullying.

Examples of bullying behaviour


In a matter before the Fair Work Commission, the features of repeated unreasonable behaviour constituting bullying at work were: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination. See Mac v Bank of Queensland [2015] FWC 774

Such behaviour may not be obvious. For example, in a decision handed down recently, the Fair Work Commission found a school principal bullied a teacher over a period of three years. Bullying behaviour included having to attend induction training after taking leave and being assigned a mentor with less teaching experience. 

Other remedies


The employee can pursue other avenues seeking a remedy to the alleged bullying.

The most common avenues seeking compensation are:
  • complaint to relevant WorkCover or WorkSafe authority - an employer found liable for bullying may face prosecution for breaching workplace health and safety legislation. This may result in fines or, in serious cases, imprisonment.
  • workers compensation claim – possibility where workplace bullying has resulted in the employee suffering a mental or physical injury
  • equal opportunity complaint – if the bullying is deemed to be discrimination, harassment, vilification or victimisation – for example, an employee repeatedly targeted for unfair/bullying treatment based on race, sex or age, may be unlawful under racial, sex or age discrimination, or
  • common law claim – the employer breached the implied contractual term of ‘mutual trust and confidence’, which may expose the employer to a court for damages to the employee.
In Victoria, the Crimes Act 1958 [Vic] was amended so that some bullying can also amount to stalking, which is a criminal offence reportable to the police.

The bottom line: A one-off negative performance appraisal may not be regarded as bullying under the Fair Work Act, but repeated and unreasonable behaviour towards an employee can constitute bullying. Important steps in controlling bullying in the workplace include maintaining up to date policies about bullying and appropriate workplace behaviour.
 

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