Introduction

Under the Fair Work Act (2009) (the “FW Act”) an employee who has been bullied at work may apply to the Fair Work Commission (the “FWC”) for an anti-bullying order. An employee is bullied if while at work an individual or group of individuals repeatedly behaves unreasonably towards the employee and that behaviour creates a risk to their health and safety.

In a recent decision, the FWC dismissed an application for an anti-bullying order, ruling that the performance improvement plan constituted reasonable management action.

Background

The employee worked in account management and customer service for a business which provided services to Telstra. In January 2021, the employer introduced a new customer classification system which required employees to classify customers by way of phone calls. The new classification system was split into designated targets for each employee, with management sending update emails and having regular discussions with employees at weekly meetings.

The employee believed that these targets were unreasonable and claimed that his contract did not require him to fulfill such obligations. The employee repeatedly informed his manager that he felt the task was “stupid” and a “waste of time” and would argue with her about the requirement. The employee failed to meet the classification targets over the course of three months, and continued to push back on the targets. The employee’s manager also became concerned about the employee’s performance in other areas, such as arriving late to work, failing to submit customer service requests issues and listening to podcasts during work hours.

The manager decided to place the employee on a Performance Improvement Plan (“PIP”) in April 2021. The employee refused to sign the PIP, claiming that some of the issues were fabricated and misrepresented, and that it was not in accordance with the relevant policies and procedures. The PIP was later amended to remove the additional concerns and only focus on the classification targets. Despite this change, the employee demonstrated no improvement in his performance, completing only 32% of his classification calls in May, 18% of his calls in June, and 27% of his calls in July. In comparison, every other team member had completed 98% – 100% of their classification calls since January 2021.

The manager claimed that when making performance recommendations to the employee, he would behave in a rude and condescending manner towards her. This included making comments indicating that he did not accept her authority and questioning her experience. In addition, the manager alleged that during one meeting the employee used his large physical size to intimidate her, raising his voice and speaking on top of her. After continued disagreements with his manager over his concerns with the PIP, the employee made an application to the FWC for an anti-bullying order.

Outcome

The FWC rejected the employee’s application for an anti-bullying order, finding that the direction to follow the new classification system was lawful and reasonable, and that the manager’s conduct was reasonable management action carried out in a reasonable manner. The FWC considered that the employee’s failure to follow the direction to comply with the new classification system and targets was “extraordinarily immature” and described his behaviour towards the manager as “disruptive and rude”. The FWC noted that the manager was not in charge of determining the number of calls to be made by account managers and that the employee was not singled out to perform the particular task. In rejecting the anti-bullying order, the FWC commented that the manager was correct to place the employee on a PIP and did not require his consent to do so, nor his agreement as to what was in the PIP.

The FWC also found that the employee had been placed on a PIP prior to the one in question by two male managers. After observing the employee during the hearing and in consideration of the material submitted, the FWC concluded that it would have been unlikely that he would have “addressed his manager in such a condescending and rude manager if his manager was male.” The FWC went further on to describe the actions of the employee as “blatantly misogynistic.”

Key takeaways

• Reasonable management action which is carried out in a reasonable manner will not constitute bullying behaviour. In some cases employees may claim that actions taken by managers to address performance concerns such as PIPs amount to bullying behaviour.
• The FWC can make an anti-bullying order if it is satisfied that an employee has been bullied at work and there is a risk that it will continue.

Employers can mitigate the risk of a successful anti-bullying claim by ensuring that performance concerns are communicated in a clear and timely manner and followed up with performance management action that addresses the specific areas of concern.

People + Culture Strategies