By Charles Power

In the five years since the Fair Work Commission (FWC) introduced its anti-bullying scheme, the number of anti-bullying claims made by employees has increased by more than 300%.

A 2016 report for Safe Work Australia found that nearly one-in-10 Australian workers were bullied in the workplace in 2014-2015. In two-thirds of these cases, the alleged bully was a supervisor.

Workplace bullying claims lead to reduced productivity, costly and disruptive litigation and hefty workers’ compensation premiums.

The Fair Work Act 2009 (Cth) (FW Act) does not provide relief for employees who claim they are being bullied at work if the alleged bullying conduct is found to be reasonable management action carried out in a reasonable manner.

The FWC will determine whether the imposition of a Performance Improvement Plan (PIP) constitutes workplace bullying or whether it is reasonable management action by undertaking an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time.

In doing so, the FWC will adopt the following approach:

• the FWC will look to see whether the decision to introduce the PIP lacked any evident and intelligible justification and whether the PIP was carried out in a reasonable manner;
• the focus will be on whether the implementation of the PIP was reasonable, not whether it could have been implemented in a manner that was more reasonable or more acceptable;
• the implementation of the PIP does not need to be perfect or ideal to be considered reasonable;
• the fact that some steps in the implementation may be unreasonable does not make the entire process unreasonable;
• to be considered reasonable, the implementation of the PIP must also be lawful and not be irrational, absurd or ridiculous;
• any unreasonableness must arise from the actual PIP and its implementation, not the perception of it by the person subject to the PIP;
• it is relevant whether the PIP process is undertaken in accordance with established policies or procedures, and if not, whether the departure was significant, and if so, whether the departure was reasonable in the circumstances; and
• in assessing whether the imposition of the PIP was unreasonable, the FWC will not substitute its own judgment as to whether the employee’s overall work performance was satisfactory or not in place of the judgment of the employee’s managers and supervisors.

The FWC adopted this approach in Blagojevic v AGL Macquarie Pty Ltd (2018). In that case, an experienced, diligent and hard-working engineer contended that the action of his supervisor, in placing him on a PIP, constituted bullying at work for the purposes of the FW Act.

The employee claimed that, prior to being placed on a PIP, his work performance was not deficient in a way that justified the decision to place him on a PIP. The employee argued that most of the areas of alleged underperformance related to matters not within the scope of his role.

Furthermore, many of the work actions required of him under the PIP were impossible.

Therefore, the employee argued, the imposition of the PIP was not reasonable management action carried out in a reasonable manner.

In this case, the FWC ruled that the employee’s performance in relation to a range of issues provided an evident and intelligible justification for the decision to place the employee on a PIP. It was reasonable for management to expect the employee to demonstrate leadership in his role by taking responsibility for the underperformance.

The employer complied with its own performance management policy.

The FWC ruled that the employer’s action, in placing the employee on the initial PIP and then revising and maintaining the PIP, was reasonable management action carried out in a reasonable manner.