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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.

Summary

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.

Jeremiah Byrnes is PEEL HR’s newest consultant. He is based in Melbourne and is dedicated to supporting Victorian organisations in their efforts to build strong, collaborative and sustainable working environments. You can contact Jeremiah on 0481 518 705.​

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a) Provide feedback making your employee relive this humiliating experience by detailing what went wrong?
…. “there is a fundamental problem with all types of feedback: it focuses on the past, on what has already occurred—not on the infinite variety of opportunities that can happen in the future. As such, feedback can be limited and static, as opposed to expansive and dynamic.”


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Collaboration is the key to winning gold and having a successful fulfilled team ! The review into culture and leadership in Australian Olympic Swimming and their tribulations at the London Olympics reinforces that the management of collaboration is a critical element for a team to achieve success. The findings contained in the Culture Review into Australian Olympic Swimming submitted to Swimming Australia by Bluestone Edge was released to the public last week and reflects on some of the key gaps in the team’s values, behaviours and supporting systems.

Collaboration not only means a richer understanding of people’s interests earlier which can be harnessed to prevent unhealthy conflict and ensure alignment of values and behaviours, but it also means robust conversations that leverages differences in perspective, experience and knowledge to generate new ideas and new solutions to achieving goals and objectives.

Does your team collaborate ? Do you lead collaborative behaviours within your team ?  If you see the following behaviours in your team, you know you are on the right track.

• Team members spend time with each other supporting achieving each others goals, that is, they have a commitment to the success of the team and not just themselves individually
• Team members initiate healthy conflict and robust discussion that is topic based
• They respectfully and constructively question whether there is another way
• Team members constructively explore their differing opinions and approaches and search for solutions beyond their own
• Team members have a priority for learning from within and across teams and so provide honest constructive feedback
• Team members make efforts towards inclusion such as sharing experiences, knowledge and techniques, not hoard it
• Team members seek out and build strong and sustainable relationships outside their team
• Team members have knowledge of each other’s work, communication and learning styles
• Team members call each other on their behaviours when they are un-collaborative
• Team members take accountability and personal responsibility

Your behaviour as a leader would expand upon these and reflect your modelling of a responsive, inspiring and ethical leader.  You certainly would be willing to have hard conversations.  Your behaviours would reinforce the importance of the team behaviours, such as, responding immediately to un-collaborative behaviours identified by you or escalated to you.

Articulated behaviours provide a consistent approach and ensure the cohesion necessary for productive collaborative effort.  These behaviours should be further broken down and particularised for your team.  If you do this through an open and transparent process in consultation with your team you will educate them and achieve the buy-in to ensure everyone has a clear roadmap to achieve a collaborative and successful team.  Teams that have worked together to determine their shared goals, values and underpinning behaviours are in the best position possible to achieve collaboration and see their performance hum.

Collaborative teams are supported by collaborative systems.  Systems engendering collaboration range from grievance/dispute resolution systems with a strong preventative focus that encourage the raising of concerns and conflict in a direct and immediate manner, to more micro systems that are applied in team meetings prompting team feedback on collaborative successes and opportunities.

PEEL are passionate about assisting organisations to build collaborative workplaces.  We partner with you in system design, capability build, ongoing preventative support and remedial interventions.  We undertake Team Effectiveness Reviews and work with you in Team Behaviour Workshops.  To find out more about our approach contact us or by phone on 02 4963 7373

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All Human Resource (HR) practitioners love those golden managers who effectively work with their people to illicit the necessary discretionary performance. While we can be fantastic at developing great HR policies and infrastructure it means nothing unless the business has good people leaders in place.

The best HR policies may encourage performance however it is the people leaders who will determine their effectiveness depending on the strategy they take. There is no one right strategy for all situations. People leaders must be equipped with an array of strategies that they can draw on to assist them in managing performance in the workplace, including skills related to:

• Giving feedback;
• Setting objectives;
• Counselling;
• Coaching;
• Conflict resolution; and
• Conducting disciplinary meetings

There will be times when despite the efforts of line managers, underperformance continues or misconduct issues arise and it is expected that line managers will play a role in formalised disciplinary procedures.

If an employee is terminated at the conclusion of a managing for performance process and they claim they have been unfairly dismissed, they must be able to establish to Fair Work Australia (FWA) that the dismissal was harsh, unjust or unreasonable. In considering this FWA will look at:

• Whether there was a valid reason for the dismissal, such as the employee’s performance or conduct;
• Whether the person was notified of that reason;
• If the dismissal related to unsatisfactory performance, whether the employee had been warned about that unsatisfactory performance before the dismissal; and
• Any other matters that FWA considers relevant.

The recent judgment of the Full Bench of FWA in Parmalat Food Products Pty Ltd v Kasian Wililo, has highlighted that the existence of a valid reason is pivotal to an employer's ability to succeed in defending unfair dismissal claims. The Full Bench of FWA said it is the primary consideration.

The Full Bench also highlighted the importance of complying with the procedural justice requirements, setting out that where such compliance is combined with a valid reason for dismissal "it would only be if significant mitigating factors are present that a conclusion of harshness is open".

As such, people leaders who play a critical role in this process should be afforded the opportunity to understand the legal considerations that apply when it gets to this stage on the performance management spectrum. A good practice is also to involve the people leader throughout the escalation process when a performance management issue becomes contested and to review cases with the people leaders generally when HR or an external consultant become involved.

Peel HR has developed a new “Managing for Performance” program that is aimed at building the confidence of line managers in applying various performance management techniques.  The scope of the program is to develop practical skills in performance management with a focus on addressing and realigning poor performance.

For more information on this program please feel free to contact us or by phoning: 02 4963 7373

Danielle Carney
Principal Consultant

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