Workplace bullying can take many forms including, in some instances, a Performance Improvement Plan implemented by an employer to address issues with an employee’s behaviour in the workplace. In what circumstances is a Performance Improvement Plan considered bullying?
What is a performance improvement plan (PIP)?
A Performance Improvement Plan (PIP) is a document that sets out a process that addresses a particular employee’s conduct within a business. It identifies an issue with an employee’s behaviour in the workplace and the steps to be taken to improve it. Implementing a PIP can be a daunting process for both an employer and an employee. It is something an employer must get right and therefore you need to fully understand all the risks and implications of the process.
Do you want to know more about PIPs? Contact us now at JFM Law by calling us on (02) 9199 8597 or you can email us at wehelp@jfmlaw.com.au.
What is workplace bullying?
Under section 789FD of the Fair Work Act 2009 (Cth) (Fair Work Act), workplace bullying is when an individual or a group of people repeatedly behave unreasonably towards a worker, or a group of workers, and that behaviour creates a risk to health and safety.
When can a performance improvement plan be classed as a form of bullying?
The Fair Work Act confirms that reasonable management action carried out in a reasonable manner is not workplace bullying.² A PIP is considered to be reasonable management action in most instances, however, there have been cases in the Fair Work Commission (Commission) where unreasonable use of a PIP against an employee has amounted to workplace bullying. In some instances, employers have been ordered to pay significant compensation to an employee for such breaches (such as a whole year’s salary).¹
Types of behaviour that have been considered by the Commission to constitute bullying at work include (but are not limited to):
- Intimidation;
- Coercion;
- Threats;
- Shouting;
- Sarcasm;
- Singling-out;
- Malicious pranks;
- Physical abuse;
- Verbal abuse;
- Belittling;
- Ganging-up;
- Rumour-mongering;
- Mocking;
- Victim-blaming; and
- Discrimination.³
This may seem like a broad list and may be concerning to employers who do not want to inadvertently fall into the trap of being accused of workplace bullying. In practise, the Commission recognises that employers need to undertake management action with some employees. Management actions do not need to be perfect to be considered reasonable. When it comes to bullying, the Commission’s real objective is to prevent employers from taking extreme or ridiculous steps to manage employees.
A PIP is not an opportunity to micromanage or belittle an employee for not achieving certain objectives. A PIP should not be used a means to push out an employee. A PIP needs to be reasonable in the circumstances. It should not introduce new and more onerous responsibilities that have previously not formed part of the employee’s duties. Meetings and assessment of the employee should be conducted in a way not designed to humiliate the employee. The objective of the PIP genuinely needs to be for the employee’s benefit, this also means the objectives must be achievable.
Importantly, the employer must comply with its own policies and procedures in taking any relevant action.
It is critical to implement a PIP appropriately, and in accordance with the law. To speak to a member of our specialist employment law team at JFM Law, call us on (02) 9199 8597 or you can email us at wehelp@jfmlaw.com.au.
How should a performance improvement plan be implemented?
To deflect claims that a PIP is ‘bullying’, an employer should implement a performance improvement plan with care. We recommend the following steps:
- When Preparing the PIP document ensure:
- The performance issue is identified;
- The employee’s defined role and existing expectations (e.g. KPIs) are taken into account; and
- The PIP complements any existing workplace policies on employee performance or conduct as relevant.
- Make sure you meet with the employee to go over the PIP. The employee must:
- Have an opportunity to discuss the performance issue that has been identified; and
- Be allowed to bring a support person to this meeting.
- Ensure you finalise the PIP with the agreement of the employee.
- Goals, benchmarks and timeframes should be discussed and agreed with the employee.
- The final PIP should be signed by both the employee and the employer.
- Monitor the employee’s progress.
- At regular intervals in the improvement process, the employee’s progress should be monitored. This needs to be assessed on specific criteria included in the PIP. It cannot be a general or arbitrary assessment; the employer needs to be able to point to an objective criterion.
- If the employee is continuing to not meet progress markers it is important to consider and offer additional support that may be required.
- At the conclusion of the PIP meet with the employee to discuss findings.
- A final meeting should take place with the employee post the implementation of the improvement process.
- A decision should be made with respect to the employee’s employment, and this will need to be communicated to the employee both in person and in writing.
- Again, the employee should be allowed to have a support person attend any meeting.
The processes outlined above may need to be adapted depending on the employee, the nature of the work and PIP itself. You can read more about how to implement a PIP here.
As an employee, the earlier you speak to an employment lawyer about your rights and the implementation of a PIP, the better informed you will be to protect yourself throughout the process. As an employer, the preparation and management of a PIP can carry significant risk; utilising a specialist employment lawyer can help with the management of these risks.
How can we help?
We can assist employer by guiding you through the implementation of a PIP. We can identify what are not appropriate management actions and what may constitute workplace bullying. If you are an employee, we can assist you if you believe that a PIP is being used to bully you or force you out of the business. Contact JFM Law on (02) 9199 8597 to speak to our specialist employment law team, or you can email us at wehelp@jfmlaw.com.au.
More information
Join our Andreyev Lawyers team as we answer your FAQs about Bullying and Harassment in the workplace. To read the transcript, click here.
The information contained in this post is current at the date of editing – 20 November 2024
¹ Pezzimenti v Rotary International [2019] FCCA 1854.
² Fair Work Act 2009 (Cth), s 789FD(2).
³ Mac v Bank of Queensland Ltd [2015] FWC 774 at [95].
