Bullying and performance management

Here's an example of the Fair Work Commission dealing with the difficult question of bullying allegations made while a performance management process is on foot.

In this case, the Commission declined to make stop bullying orders. The Commission said,

"it is not acceptable to use the stop bullying jurisdiction ... to prevent, delay or deflect justifiable disciplinary outcomes or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying".

A factor relevant to the decision was that the employer had conducted both an internal and external investigation into the bullying allegations - and both investigations had found the allegations were not substantiated.

The key points to take from this decision (and other similar recent cases) are - 

1. Every allegation of bullying should be investigated. The employer can't just ignore an allegation because there is a performance management process on foot.
2. Provided that the allegation is investigated appropriately, the FWC will be reluctant to intervene in the performance management process because the allegation has been made.
   
3. The stop bullying application can be reopened if the employee is dismissed and subsequently re-instated after making an unfair dismissal application. 
   

For the full decision see - 

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4274.htm