Dealing with employee issues informally can be a great way of working to improve things gradually whilst maintaining healthy relationships. But what risks does informal management action represent? Is it OK to pull someone aside for a quick chat about their performance? Could this expose you to a bullying claim?
The FWC position
The Fair Work Act s.789FD(2) is clear that bullying does not include ‘reasonable management action carried out in a reasonable manner’. The new Anti-bullying Benchbook provides examples of what this might look like (performance appraisals, counselling etc.) but also notes that ‘an informal, spontaneous conversation between a manager and a worker may not be considered management action’ (p. 32) even where it deals with such issues. While it is unclear how exactly the FWC will deal with this issue, a workers’ compensation case from 2012 highlights a possible approach.
A sample case
NAB LTD v KRDV (2012) 204 FCR 436 examined a situation in which an employee claimed she was picked on and criticised during an operational meeting of team leaders. This meeting was followed by a casual chat with her manager where her performance was discussed including the suggestion that resignation should be considered. The employee claimed to have found these meetings to be very distressing and was soon after certified as unfit for work. NAB claimed it was not liable to pay compensation on the basis that the action taken was reasonable administrative action undertaken in a reasonable manner. This was rejected by both the Administrative Appeals Tribunal and the Federal Court on the basis that the purpose of the meeting of team leaders was not to discuss individual performance, and that if the meeting and the casual chat did touch upon matters of performance they did not do so in a reasonable manner because of the lack of notice given to the employee.
Employers and managers can feel confident in their right to direct work and undertake normal management duties in a reasonable manner. Informal meetings and conversations are, and should be, an essential part of this. However, it is important to be clear about the purpose and processes underlying meetings in the workplace. Where there is a need to discuss an employee’s performance this should be done in the appropriate context, and where serious issues and consequences are to be discussed it is important for more formal processes (proper notice, offer of support person etc.) to be followed. Choosing the wrong time and place to discuss performance in an effort to remain informal may mean that the action is not regarded as ‘reasonable management action undertaken in a reasonable manner’ and could expose you to a workplace bullying claim.
Written by Jeremiah Byrnes.