AMMA principal workplace relations consultant Bill FitzGerald examines a Fair Work Commission decision where an employer stepped a fine line between bullying and performance management.

AMMA’s Principal Consultant Bill FitzGerald

In a single member determination, Deputy President Ingrid Asbury issued an anti-bullying order after finding emails sent by the chair of a body corporate committee to the residential complex’s manager constituted bullying.

Background

In this case, Application by Ms. A [2018] FWC 4147 (13 July 2018), Deputy President Asbury heard numerous allegations regarding the communication of the chair, who regularly sent up to seven emails a day to the caretaker-manager, usually in a highly derogatory manner which were copied in to other directors.

A number of allegations were carefully considered by DP Asbury, but the pivotal aspect resulting in the bullying orders was the manner in which the chair of the board delivered the performance management to the employee.

Within the emails, the chair queried where the manager was, what work had been done and also threatened to reduce the remuneration or terminate the manager’s contract.

The employee said this prompted her to move away from the complex and had impacted on her family life due to stress.

She told DP Asbury the communication led to the breakdown of her marriage with her husband, who is also a director of the organisation and stayed at the complex to carry out the majority of management duties.

Despite DP Asbury finding that the content of the emails constituted reasonable administrative action, it was the excessive frequency and timing of the emails which constituted bullying.

The decision

While DP Asbury found the manager’s performance left “much to be desired” and that most of the chair’s emails therefore constituted reasonable management action, she concluded that the timing of the emails meant that it was bullying conduct.

It was found the chair’s regular sending of emails “significantly outside the core hours during which [the manager] is required to be contactable” occurred despite none of the issues raised being emergencies.

The emails also contained derogatory and sarcastic language, accused the employee of being a liar, questioned her credibility and suggested she could not perform her duties satisfactorily.

DP Asbury said the conduct was unreasonable, repeated and found it created a “risk to health and safety by affecting her personal wellbeing”.

In concluding, DP Asbury delivered bullying orders including that the director first contact the employee or her husband by telephone before sending emails and any contact is be made only during agreed hours other than in the case of an emergency.

The orders were issued without identifying the parties involved in the hope it would be more conducive to the resumption and continuation of ongoing safe and productive working relationship between the parties.

Implications

This case reinforces why best practice performance management not only addresses the circumstances in which performance management may be required, but sets out the practices and processes under when and how it would be undertaken.

A performance management process is generally defensible against claims (such as bullying in this case) when it is undertaken during normal working hours; is delivered respectfully and within a reasonable time frame; and when the performance is being objectively judged by way of evidence against agreed performance criteria.

AMMA’s Workplace Relations Consultants are specialists in all these areas and are available to assist members.

For further advice about themes covered in this case summary, contact AMMA’s Principal Consultant based in AMMA’s Hobart Office, Bill FitzGerald.