The Case

Donovan Christopher Scott v Vita People Pty Ltd, Josie Williams (2022)

Vita People Pty Ltd employed Mr Scott. Mr Scott made an application to the Fair Work Commission (FWC) for stop bullying orders against Vita People and his manager, Ms Williams, after Ms Williams placed Mr Scott on a performance improvement plan.

The performance improvement plan was based on Mr Scott’s failure to meet quarterly performance targets. Mr Scott objected to the performance improvement plan and:

• disputed the performance targets;
• claimed it was excessive given his prior satisfactory performance;
• claimed he had not been consulted about those issues informally; and
• stated it was unreasonable to place him on a plan when other employees were also not meeting their targets.

Vita People and Ms Williams refuted these claims, saying:

• the decision to place Mr Scott on a performance improvement plan was a reasonable management decision;
• Mr Scott had been consulted about his failure to meet targets and given guidance, support and supervision to try to rectify the matter;
• Mr Scott became aggressive when such matters were raised with him; and
• other employees were meeting their targets except one person who had only failed to do so because of a significant workload due to staff shortages.

The Verdict

The FWC dismissed the stop bullying application, finding that:

• Mr Scott was not bullied at work;
• Vita People and Ms Williams had taken reasonable management action in a reasonable manner;
• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be reasonable even if particular steps are not;
• to be considered reasonable, the action must also be lawful, and not be irrational, absurd or ridiculous;
• any unreasonableness must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

The Lessons

To make stop bullying orders, the FWC must find that:

• the employee was bullied at work by an individual or a group of individuals; and
• there is a risk that the employee would continue to be bullied at work by the individual or group concerned.

This decision by the FWC provides some confidence that reasonable performance management, properly managed, won’t normally give rise to a successful bullying claim.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.