The discussions involving an underperforming employee are some of those most dreaded by managers. These awkward conversations often involve uncomfortable topics like raising  the employee’s poor performance, setting targets for employees to reach and ensuring that their performance is monitored. While difficult for the manager, they can also be a source of stress and anxiety for the employee.

In some cases, an employee may allege that such discussions amount to bullying and harassment – causing them a compensable work-related injury. Can this be the case? Is it even worth having the conversation with the employee?

The answer is of course, yes. These conversations are a necessary part of managing employees. However, if the process is not handled properly and appropriately, issues like bullying accusations may arise. To begin with, it’s helpful to understand the definition of workplace bullying.

SafeWork Australia defines bullying as follows:

‘Repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.’

It is possible that bullying can be the result of a poorly managed performance management process. Here are some examples:

•    Setting unreasonable timelines that are difficult to achieve
•    Overloading a particular employee with work
•    Constantly and unreasonably changing deadlines
•    Setting a person tasks that are beyond their known abilities
•    Taking work away from an employee unfairly

All of these somewhat ‘covert’ behaviours can be considered bullying behaviour if they are repeated, forming a pattern. Often, this is where the line between performance management and bullying can be blurred. Despite this, a manager must performance manage an employee if it is appropriate to do so. Can this be done without causing stress and anxiety to the employee?

Yes.

If the employee is underperforming, if their behaviour is inappropriate or if you receive legitimate complaints from other employees or customers –  you must address this with the employee.

When having a discussion of this type, it is important to approach it in the right way. Consider the following:

•    The tone of your voice
•    The location of your discussion (private is always better)
•    The content of the discussion
•    Your body language
•    The mode of discussion (ie email, phone, in person)

All of these factors can significantly affect the employee’s stress levels during your discussion with them about sometimes uncomfortable content. Having a consistent approach is also helpful, and this can be achieved through the implementation of a performance management procedure. This way, all managers know to follow a particular ‘script’:

•    Discuss and put in place concrete and achievable goals and timelines for the employee, and discuss the reasons behind their underperformance or behaviour so that you can understand the source of the problem if there is one.
•    Keep notes, and record everything agreed to during the conversations. If possible, have the employee sign off on the agreed outcomes.

If despite all of this, the employee files a worker’s compensation claim alleging their injury (normally stress and/or anxiety) was caused by your performance management process, this does not mean their claim will  automatically be accepted by Return to Work SA.

As a manager or employer, you are entitled to take ‘reasonable administrative action’ with regard to your employees. Even if the worker’s injury is determined to be substantially caused by the performance management process, if you can show (through your notes and records of all meetings, in first instance), that the action was reasonable and was taken in a reasonable manner, the employee’s claim will not be accepted.

Remember, you cannot stop an employee from making a claim for workers’ compensation alleging stress. They are entitled under the law to make the claim, whether it is legitimate or not. It will then be for Return to Work SA to assess the claim to determine whether work was ‘the substantial cause’ of the mental injury.

As an employer, you can only be responsible for what you can control – the way you and your employees have interacted with the employee, the process you have undertaken, and ensuring adequate notes and record keeping has been undertaken so that the evidence is there if your conduct is ever questioned.

As such, approach any performance management discussions in a well-planned and thought out manner, if possible. Make sure any discussions or agreements are made in writing and preferably signed by the employee. Having a consistent approach with a performance management procedure will also assist managers in dealing with these matters.

Are you are concerned about the possibility of a workplace bullying compensation claim? Or perhaps you just want to get the correct processes in order before a potential situation arises? Get in touch with one of our experienced and professional team at insyncHR for your FREE consultation. We can offer information, assistance and support on how to best protect your workplace from bullying claims and how to manage staff performance.