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Managing people

Negative performance appraisal – is this bullying?

08 Nov 2022

Managing employee performance and conduct can sometimes be a challenging task.

Consider this scenario: an employer is conducting annual performance reviews of all employees. One employee has received a critical performance review from his manager. The manager counselled the employee on how his performance could be improved.

The employee then claims he is being bullied by the manager. He threatens to resign and lodge a complaint with the Fair Work Commission.

Where does an employer stand in this situation?

Is it bullying?

Employers need to be aware of what behaviour constitutes bullying and what preventative measures can be taken to control bullying in the workplace.

Bullying is when an individual or group of individuals repeatedly behave unreasonably toward a worker and it creates a workplace health and safety risk. It is not a one-off incident. 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, a person must be a ‘worker’, which means an employee who resigns from his/her employment cannot make a bullying complaint under the Fair Work Act.

The Fair Work Commission's 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

Features of repeated unreasonable behaviour that could constitute bullying at work are 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.

Such behaviour may not be obvious. For example, in a decision handed down recently, the Fair Work Commission 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.

The most common avenues for seeking 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 the 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 – the 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.

How we help

Creating a performance and misconduct policy isn’t a process many employers are familiar with, so use templates that can fast-track the process. Along with many other documents and policies, My Business Workplace has a Performance and Misconduct Policy. It offers comprehensive guidance and can be used by both small and large employers.