Can negative feedback be construed as bullying?

Can negative feedback be construed as bullying?
By Paul Munro on 21 July 2016 An employee who received a critical performance review claims his manager is bullying him. Can a negative appraisal equate to bullying?

This question was recently sent to our Ask an Expert service.
 
Q Our company is currently conducting annual performance reviews. One employee has received a critical review of their performance by his manager. In doing so, the manager counselled the employee on how his performance could be improved. The employee has claimed he is being bullied by the manager and has threatened to resign and lodge a complaint with the Fair Work Commission.
 
Would the manager’s behaviour in this circumstance constitute bullying?
 
A Not as a stand-alone incident. Bullying is where an individual or group of individuals repeatedly behave unreasonably toward the worker and it creates a workplace health and safety risk. Proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is created.
 
To make a bullying claim to the Fair Work Commission, the person must be a ‘worker’. This means an employee who resigns their employment cannot make a bullying complaint under the Fair Work Act.

The Fair Work Commission’ anti-bullying charter is to improve workplace culture and prevent bullying rather than ordering compensation or damages to a claimant.
 
Bullying does not include:
  • genuine and reasonable disciplinary procedures
  • genuine and reasonable performance management – constructively delivered feedback or counselling (as in the above case), or
  • directing and controlling how work is done.
In this case, the employee has reacted negatively to an objective performance management appraisal, so this would not constitute bullying. 

Examples of bullying behaviour

In a matter before the Fair Work Commission, repeated unreasonable behaviour constituting workplace bullying was described as: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination. See Mac v Bank of Queensland [2015] FWC 774.
 
Such behaviour may not be obvious. For example, a recent FWC decision found a school principal bullied a teacher over a period of three years. Bullying behaviour included having to attend induction training after taking leave and being assigned a mentor with less teaching experience. 

Other remedies

An employee can pursue other avenues seeking a remedy to the alleged bullying. Common avenues for compensation are:
  • complaint to relevant WorkCover or WorkSafe authority – an employer found liable for bullying may face prosecution for breaching workplace health and safety legislation. This may result in fines or, in serious cases, imprisonment.
  • workers compensation claim – possibility where workplace bullying has resulted in an employee suffering a mental or physical injury
  • equal opportunity complaint – if the bullying is deemed to be discrimination, harassment, vilification or victimisation, for example, an employee repeatedly targeted for unfair/bullying treatment based on race, sex or age, may be unlawful under racial, sex or age discrimination, or
  • common law claim – an employer breached the implied contractual term of ‘mutual trust and confidence’, which may expose the employer to a court for damages to the employee.
 In Victoria, the Crimes Act 1958 [Vic] was amended so that some bullying can also amount to stalking, which is a criminal offence reportable to the police.
 
The bottom line: A one-off negative performance appraisal may not be regarded as bullying under the Fair Work Act but repeated and unreasonable behaviour towards an employee can constitute bullying. Important steps in controlling bullying in the workplace include maintaining up to date policies about bullying and appropriate workplace behaviour.
 

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