Respect at work – Fair Work Commissioner rejects Stop-Bullying claim. Common sense prevails. 

Sometimes an employee may view their performance at one level but their manager views their performance at a different level!

Sound familiar?

As an employer/manager, you may have already experienced this yourself. 

A member of your team is unable to accept that there are areas they can improve on in performing the required duties/tasks of their position. 

In this recent case, an employee that did not appreciate her manager raising performance concerns with her, lodged a ‘STOP bullying claim’ with the Fair Work Commission.

The manager rejected the employee’s claim stating the employee was trying to avoid reasonable performance management.

Read on to get an insight into ‘What happened and what the Commissioner had to say.’

What happened

The employee was part of a small team. The employee repeatedly failed to meet or work within the required time frames set by her manager. The work the employee did complete was inaccurate and unreliable. 

The manager needed to raise the ‘performance concerns’ with the employee so as not to impact on the other team members.

As the employee was new to the role, the manager decided to address the employee’s performance concerns at a separate meeting, to be held after the employee’s formal performance review meeting. 

At the employee’s formal performance meeting, the manager rated the employee ‘meets expectations’ despite the ‘performance concerns’ (that were yet to be raised) with the employee.

When the manager met with the employee (after the formal performance meeting), the employee did not appreciate the manager raising the performance concerns with her. The employee was of the view she didn’t have any performance concerns and defended her performance claiming: lack of clarity around assigned tasks, inadequate resources, incomplete data and interruptions due to leave.

At the next performance meeting, the employee questioned why the manager was managing her performance, albeit informally, given she was a busy Mum already struggling with work and home schooling. 

Consequently, the employee claimed she was suffering anxiety and stress due to the manager’s behaviour and claimed the manager had unreasonable expectations and unjustified criticisms. 

The employee sought ‘Stop Bullying Orders' against her manager claiming she had been subjected to undue criticism during an informal performance management process.

What did the Commissioner have to say?

The employee seemed to have the inability to accept that there are issues with her performance.

One glaringly apparent issue with the employee was her attitude and approach to her work and these proceedings. 

The Commissioner found it was not unreasonable for the manager to continue the informal management process and rejected the employee’s application to Stop-Bullying.

Thank goodness common sense prevailed.

Ms W (a pseudonym) [2022] FWC 1627 (28 June 2022)

Take home message

Employers/managers have a legal duty to prevent unacceptable behaviour (bullying, discrimination, and sexual harassment) occurring in the workplace by leading by example and providing training and awareness education sessions about ‘What is bullying?’ and equally importantly, ‘What is not bullying?’ 

Take action to prepare for changes in the law in 2023

Changes to the law will be introduced in 2023, by the Federal Government now that the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill has been passed.

The new laws place an onus on employers to take a preventative approach, as opposed to a re-active approach, to discrimination, harassment, and other forms of inappropriate behaviour in the workplace.

The 3 critical things that will mitigate the risk of bullying or another form of inappropriate behaviour occurring in the workplace are:

  1. a workplace policy that prevents and, manages incidents of unacceptable workplace behaviour (bullying, discrimination, and sexual harassment) that may occur; and
  2. a procedure for reporting/managing complaints of unacceptable workplace behaviour; and
  3. educate your people by providing training at induction as well as compulsory ‘refresher training’ every 12-months.

Do you need our help?

Ulton’s HR Consulting services can assist you with meeting your employer obligations, in the areas of:

  • Provision of policies and procedures to manage unlawful sex discrimination, sexual harassment, victimisation and all other forms of unacceptable workplace behaviour
  • A confidential complaint procedure for receiving and managing complaints
  • Respect @ Work training and awareness workshops for your people

Training outcomes include:

Participants will learn about the changes in the law and what constitutes unacceptable workplace behaviour, preventing/eliminating unacceptable behaviour from occurring in the workplace and so much more.

Relevant case studies and real life examples to put training content into context. Participants engage in discussions and interactive activities. An assessment is completed by all participants during the training workshop.

All participants will receive a handbook and certificate of participation upon completion.

If you are interested in this training, please reach out to Christine Guy on (07) 4154 0413 or and we will add you to our mailing list.

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