This article looks at what managers can do to limit the possibility of having an adverse claim of bullying found against them
This article was added to the Management Insights series in 2012. Since then, the anti-bullying jurisdiction of the Fair Work Commission has been created taking effect from 1 January 2014. A new article called the Anti-bullying jurisdiction of the Fair Work Commission available here. This 2014 article should be read in conjunction with this title.
There is no escaping the fact that bullying and harassment have become a hot topics in workplaces. Almost universally employers have adopted policies that deal specifically with bullying and more generally with respect and conduct while some employers even have dedicated bullying dispute resolution clauses in their collective agreements. All of this is very positive and welcome. It can however make the job of managers harder when it comes to performance managing employees. In this article we will look at what managers can do to maintain fairness and effective performance management practices while also limiting the possibility of having an adverse claim of bullying found against them.
Performance management is a task requiring not only an efficient administrative system and the technical skills to determine and implement appropriate measures of performance – but also the well-honed interpersonal skills of the managers involved. As a manager you are required to point out areas for improvement while at the same time keep an employee motivated and positive – downplay the negatives too much and you run the risk that the employee only focuses on the positive and continues to make the same mistakes which ultimately leads to frustration all round. Be too focused on the negatives and you can run a very real risk of having to answer a charge of bullying.
It is not always clear at law what constitutes bullying. The definitions of “bullying” and “reasonable managerial conduct” differ in each state and each jurisdiction. For the purposes of worker’s compensation the focus is on the conduct of the manager and whether the conduct constitutes “reasonable managerial conduct”. For unfair dismissal and occupational safety laws the focus is on the effect the manager’s behaviour has had on the employee and whether there has been a threat to the employee’s “safety and welfare”. In workplace policies the focus may not always be clear and it can be a question of who gets their claim in first (the frustrated manager or the frustrated employee) as to who gets the greater support from their employer.
For the purpose of this article we will use the definition of bullying that has been adopted nearly universally by each state Workcover authority – bullying is “repeated unreasonable behaviour directed toward an employee or group of employees that creates a risk to health and safety”. And “reasonable managerial conduct” is:
(a) reasonable action taken in a reasonable manner by the employer to transfer demote discipline redeploy retrench or dismiss the worker; or
(b) a decision of the employer on reasonable grounds not to award or to provide promotion reclassification or transfer of or leave of absence or benefit in connection with the employment to the worker; or
(c) an expectation of the taking of such action or making of such a decision.
Reasonable managerial conduct is not “unreasonable behaviour” so while reasonable managerial conduct may cause an employee stress and anxiety it will not be considered bullying.
1. Communicate: from top down
There is a common pattern that emerges in many bullying claims against managers. A not uncommon scenario unfolds like this:
Manager A is likeable but underperforming. Senior managers replace Manager A with Manager B with firm instructions to Manager B that he is to get the workforce into shape and produce results. Manager B is told to do what he has to do to turn the team around. The team used to a non-confrontational style of management and armed with years of performance reports that rate their work highly are immediately upset by the new managerial approach and the questioning of their ability. Bullying claims soon follow.
Without the support of senior managers Manager B can quickly become a scapegoat having to face the charge that given the large number of bullying claims senior managers have no option but to be seen to do something. Manager B is then transferred demoted or dismissed – all for following instructions.
With the support of senior managers this process can be managed far more smoothly and productively for all staff. As with everything related to workplace bullying communication is key. Senior managers need to clearly communicate to Manager B their goals and expectations and give Manager B a clear written position description. Senior managers also need to clearly advise Manager B’s team of their goals and give them notice that expectations for the team have changed. Finally Manager B needs to communicate with the team as a whole to let them know what the goals and expectations for the team are. The clearer the communication the less likely that misunderstanding will occur and the more likely the conduct of Manager B will be objectively seen as reasonable managerial conduct.
2. Communicate: one-on-one
The old managerial saying of ‘praise in public criticise in private’ is still true today although it should be extended to say ‘criticise in private as part of a structured performance management process’ – not as snappy to say but effective managerial practice. A common scenario in bullying claims is as follows:
Employee A has been a consistent and reliable performer. Manager C is comfortable with Employee A and trusts Employee A to get the job done. Performance reviews with Employee A are annual and usually take 15 minutes discussing general goals for the year ahead. Lately Employee A has been having some personal issues that are causing conflict with other staff. Manager C has been asked by other employees to talk to Employee A. Manager C has taken a keener interest in reviewing Employee A’s work and has called Employee A in for a couple of informal chats. Employee A resents this additional attention and has filed a bullying complaint.
Many bullying claims arise because an employee feels they are being singled out by their manager. This can be averted if managers take a regular and consistent approach to one-on-one reporting. While most contracts provide for annual performance reviews this does not prevent managers from having more regular (and more informal) one-on-one sessions with staff to discuss their performance. Regular one-on-one sessions are particularly important in times of workplace change when staff may be unclear of their roles or insecure about their employment.
The aim with one-on-one sessions is to be consistent – consistency will avoid any actions appearing to be arbitrary or reactionary. It is also easier to demonstrate that conduct is reasonable managerial conduct if you can evidence a consistent and uniform pattern of behaviour.
3. Communicate: with human resources/other managers
One of the more important management competencies is the ability to effectively manage employees – managing workflow delegating responsibilities setting and monitoring targets and ensuring staff are meeting their performance obligations. Managers are not however judge jury and executioner. Below is a common example of what can happen when managers go from policing to judging:
Manager D supervises Employee B. Employee B is highly ambitious and has very clear designs on Manager D’s job. This has manifest itself in a number of ways including Employee B deliberately misrepresenting Manager D to other staff including senior managers Employee B undermining Manager D in staff meetings and Employee B being openly hostile. Manager D initially takes Employee B’s behaviour as a challenge and believes that it is good for the team for Manager D to appear decisive and firm in dealing with Employee B. However the firmer Manager D is with Employee B the more Employee B undermines and criticises Manager D leading to a complete breakdown in their relationship. Before Manager D can contact HR to work out how to handle the situation, Employee B files a bullying complaint against Manager D.
As a manager, part of your skill is knowing the right people for the right job, and when staff need to be performance managed, you should rely on the human resources experts in the workplace – it is your role to report the problem and set targets; it is the role of human resource to discipline employees and, if necessary, issue warnings. Action taken by you that appears to be emotionally driven or focused on the personal rather than the professional is in danger of falling foul of the ‘reasonable managerial conduct’ test.
4. Communicate: clearly and consistently
Not all exchanges with your staff will lead to complaints against you. But if you find that you are setting behavioural or performance targets for your staff then you need to record these targets in writing and provide copies firstly to the employee and then to HR or another manager. This not only provides clarity to your employees but provides a record of all relevant interactions. A common problem that arises from not being clear and concise is detailed below:
Manager E has been having one-on-one sessions with Employee C for a number of months. As Employee C’s performance has been slipping of late, Manager E has taken more time in these meetings to discuss Employee C’s performance and to offer constructive criticism. The meetings appear to go well and Employee C always leaves the meetings on a happy note. Manager E is surprised to receive from HR notice that Employee C has made a detailed complaint against Manager E. On reading the complaint Manager C feels a lot of what he has said has been taken out of context or misquoted.
One-on-one sessions are a chance for managers and employees to discuss work issues together in a direct and immediate way. These sessions are not performance management sessions. Performance management needs to involve clearly articulated and written performance targets with a process and timeline for an employee to meet those targets. Failing to put these targets in writing makes misunderstanding and miscommunication more likely.
In performance management, it’s important to remember no one size fits all. But there are some basic principles which are helpful. Effective performance management is about optimising employee motivation and satisfaction, focusing people’s efforts, aligning staff efforts across the organisation and at all levels and ensuring accountability – for employees and managers. An effective performance management system requires not only a sound administrative system and technical skills to determine and implement appropriate measures of performance – but also well-honed interpersonal skills – including most importantly highly-developed communication skills.
As a manager you need to ensure the link between your staff members’ objectives and the aims and expectations of the department and organisation as a whole is clear, in written form, communicated and discussed regularly and consistently and that feedback is constructive. You also need to ensure you communicate with your manager regularly and with human resources when disciplinary matters arise.
Where appropriate you should seek training in areas such as communication skills, conducting performance-related conversations, on-the-job coaching and providing constructive feedback.
And if you’re involved in performance managing staff, the performance management pitfalls set out in Section 2 of APESMA’s Guide to Performance Management, in addition to the material set out in this article, are a must-read to alrt you to some of the pitfalls of performance management, to improve your skills and to minimise the possibility that you’ll be the subject of a bullying claim.
Looking for more ideas?
For readers interested in extending their understanding of sound management practices and effective performance management, the following titles are available from the APESMA website:
Performance management – principles, practice and pitfalls
The qualities of successful managers
Reflective practice: a personal productivity tool for managers
Collaboration and the manager’s role
About the Author
Joseph Kelly has had extensive experience in commercial litigation and workplace law, having advised employers and employees on all issues relating to industrial relations and employment law. Joseph has advised industry bodies, unions, employers and government and continues to run training and information seminars for legal practitioners. Joseph is currently the Principal of Kelly Workplace Lawyers. [Web: www.kwlawyers.com.au]