Key learnings for employers

• Employers dealing with employee performance and/or conduct issues must do so in a structured and comprehensive manner. The Fair Work Act ‘stop bullying’ provisions require employers to take a reasonable approach.
• Employer actions that are not part of any performance management such as issuing work directions could be caught up in this – and must also be given in a reasonable manner.
• As more employees claim bullying in response to legitimate management discussions employers may find themselves having to respond to bullying allegations in a formal Fair Work hearing. This means that a paper trail and a witness to formal discipline discussions are essential.
• A performance improvement plan is usually undertaken before any formal disciplinary processes are commenced in the hope that an employee will change their behaviour. It can involve regular formal meetings, written goals and tasks as well as attitude expectations. They can be a useful way to outline expectations to employees who need a metaphorical ‘push’ in the right direction. They are often not effective for employees with ingrained performance or attitude concerns.

On the same day as he received a written warning and had his performance improvement plan (PIP) extended by 4 weeks, Mr Hamid lodged a bullying complaint against his employer Vistaprint, in the Fair Work Commission. He sought a ‘Stop Bullying’ Order from the Commission.

In summary, the ‘Stop Bullying’ provisions in the Fair Work Act (2009) state that a worker is bullied at work when another individual (or group of individuals) repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. It then states that reasonable management action carried out in a reasonable manner is not bullying.

Mr Hamid was employed in an entry level IT support position. His duties included IT support to the manufacturing function on-site, identifying and investigating to resolve IT issues, maintaining asset management, responding to IT tickets, decommissioning IT hardware and assisting the IT team with projects.

His bullying complaint included an extensive list of allegations some of which follow:

• He was asked to prepare security cards and sort through redundant IT ‘waste’.
• He was assigned menial tasks by his supervisor and not briefed on real IT project work.
• He was told he was not responsive enough on IT support work.
• He had a PIP placed on him and it undermined his self-worth. The scrutiny and feedback left him feeling like a failure. He described the PIP reviews as torture and ongoing bullying.
• He claimed the PIP had no clear expectations, the meetings had misleading agendas and were called at short notice.
• His work was closely monitored, tasks he undertook were questioned and he had deadlines imposed on him.
• The PIP targets were unattainable and simply a form of bullying and micromanagement.
• The PIP meetings and requirements left him stressed and feeling victimised.
• He was micromanaged when he was questioned why he was turning up for work late.
• He was subjected to derogatory and disrespectful comments and verbal abuse in his one-on-one meetings with his supervisor and another person.

The employer disputed all of Mr Hamid’s allegations providing evidence and witness statements in relation to his work performance and conduct. This included:

• Mr Hamid was witnessed sleeping in his car multiple times during working hours.
• He left the workplace on 11 occasions and was uncontactable for several hours.
• He was not performing his duties to the required standard.
• The applicant failed to undertake work reasonably assigned to him by his manager.
• He failed to respond to IT support requests.
• He was rude, abrasive and disrespectful to other staff.
• He was using his work computer excessively for personal browsing including viewing SEEK.

Initially the above items were dealt with informally but later escalated to a formal management process through a ‘letter of expectation’. Thereafter he was placed on the PIP which allowed for weekly meetings and the review of his performance. Despite the PIP Mr Hamid’s conduct and performance did not improve.

On 7 May 2024 he reacted aggressively when lateness, his failure to clock in and non-resolution of IT tickets was raised with him. Thereafter he was issued with a written warning, and the PIP was extended for a further 4 weeks. In response Mr Hamid screamed and then slammed the door as he left the meeting room. On the same day he filed his bullying complaint in the Fair Work Commission.

On 24 May 2024 he left work and did not return calling in sick. He filed a workers compensation claim identifying severe anxiety, depression and stress.

The employer contends that the response in relation to Mr Hamid’s conduct and performance issues were reasonable management actions and that there was no bullying.

It states that they followed a thorough and structured process and that the PIP clearly outlined the required standards and was achievable. The employer stated Mr Hamid was provided with support to achieve the standards of performance outlined in the PIP.

It’s not possible here to address all of Mr Hamid’s allegations, the employer’s detailed evidence and the Commission’s individual response. In assessing Mr Hamid’s application the Commissioner addressed and progressively dismissed each of Mr Hamid’s bullying allegations.

In relation to the PIP the Commissioner provided the following comments in relation to Mr Hamid’s allegations and the evidence of the employer:

• The Head of People and Culture (HPC) was present at the PIP meetings and organised for Mr Hamid’s supervisor to be trained and coached and ultimately manage the PIP process.
• The Supervisor remained professional in the PIP meetings even when aggressively challenged by Mr Hamid in relation to his conduct or performance.
• The Commission accepted the evidence of the HPC that she witnessed Mr Hamid’s passive aggressive behaviour, that he thought his duties were beneath him, his reluctance to perform administrative duties, to follow directions and that he wanted to attend work when he chose to do so.
• The PIP requirement that he attend work between 7.30am and 4pm was reasonable given the requirement that he provide IT support to the manufacturing part of the plant.
• The evidence showed that the PIP contained clear goals with weekly review meetings and that Mr Hamid understood he could access assistance but chose not to.
• There was no evidence of micromanaging and that Mr Hamid was offered extensive support.

Ultimately the Commissioner dismissed the matter stating “I do consider the management of Mr Hamid’s performance was conducted in a reasonable manner.  The process was fair and reasonable but also appropriate in the circumstances of the obvious conduct and performance concerns”.

What I find interesting in this case is that Mr Hamid displayed this level of performance and conduct for almost a year. The patience displayed by this employer was phenomenal.  Given Mr Hamid’s blatant unwillingness to improve his performance and aggressive conduct he would have provided multiple opportunities to bring this matter to a structured termination at a much earlier date with minimal employer risk.

Employers do not need to accept such unacceptable and disruptive behaviour.  

Another concerning aspect of this case is that in ‘stop bullying’ claims (as with many other Fair Work processes) the Fair Work Commission at first seeks to attain a conciliated outcome (often ‘$’) between the parties. If the applicant refuses to accept the conciliation the matter proceeds to arbitration. This case clearly shows a problem with the process whereby an employer can be dragged into a costly formal hearing process on a frivolous and baseless claim.  As such it also shows that employers must undertake such processes in a competent manner to ensure they have sufficient evidence to support their decision.

If you require assistance with a Mr Hamid in your workplace please do not hesitate to contact me.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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