The Case

Mac v Bank of Queensland (2015)

An in-house lawyer applied to the Fair Work Commission (FWC) seeking bullying orders against five of her colleagues and her employer, the Bank of Queensland.

The claim arose as a result of the employee being put on a performance improvement plan, with the potential for dismissal if she did not make satisfactory progress under the plan.

The Verdict

The FWC held the employer’s decision to place the employee on a performance improvement plan, and its implementation of that process, was reasonable.

In reaching its decision, the FWC provided some useful guidance:

• the employee complained at various stages of the performance improvement process that she was not made aware of the alleged deficiencies in her performance. In this respect, the FWC held that there had been no failure by the employer to properly communicate the relevant deficiencies – rather, the evidence showed an inability on the part of the employee to accept the validity of any criticism of her performance;
• while the FWC recognised that a performance management plan may be used by some employers to achieve and justify a predetermined outcome (which would constitute bullying through performance management), this was not the case in this instance. The FWC held the employer had properly implemented the performance improvement plan to try to improve the employee’s performance;
• while there was clear evidence that being subjected to the performance improvement plan had a significant and negative impact on the employee’s health, it was not satisfied that the employer’s actions were outside of acceptable performance management. The FWC noted that the employee failed to demonstrate that the performance management plan lacked justification such that “it would be considered by a reasonable person to be unreasonable in all the circumstances”;
• conduct following an employee’s exit from the workplace (in this case, on extended sick leave) was unlikely to be conduct ‘at work’ so as to enliven the anti-bullying jurisdiction; and
• the types of conduct that might constitute bullying did not occur. These include

The Lesson

This decision demonstrates that reasonable performance management will not constitute bullying, and will therefore not enliven the FWC’s anti-bullying jurisdiction.

The claim arose as a result of the employee being put on a performance improvement plan, with the potential for dismissal if she did not make satisfactory progress under the plan.

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.