When an employee’s performance begins to slip, addressing it is a necessary part of leadership. However, a recent Fair Work Commission (FWC) decision highlights a growing challenge for Australian employers: the line between reasonable management action and what an underperforming employee subjectively perceives as workplace bullying.
The Case: Re Kristan Heidel v University of Notre Dame Australia
A program manager at the University of Notre Dame, responsible for managing a rural health grant, frequently struggled with incomplete tasks, vague accountability, and pushing deliverables onto other team members.
When her acting line manager began directly addressing these performance gaps through professional emails and requests for progress updates, the employee resisted accountability. She routinely pushed back, claiming she didn’t understand deadlines or that the tasks fell outside her responsibility.
The tension peaked when the manager issued a formal invitation to a performance meeting to discuss implementing a Performance Improvement Plan (PIP). That exact evening, the employee lodged a stop-bullying application with the FWC, claiming that the ongoing monitoring and formal meeting request constituted workplace bullying.
The FWC dismissed the employee’s application entirely. Commissioner Stephen Crawford noted that the employee was challenging to manage and actively resisted accountability.
Crucially, the Commission emphasised that employees cannot expect to avoid standard scrutiny of their performance by simply launching a workplace bullying claim.
While the Commission noted a minor administrative oversight by the university (an HR partner had accidentally forwarded a confidential query from the employee back to the manager), this did not alter the core facts. The manager’s communication remained professional, focused entirely on work delivery, and was deemed a classic example of reasonable management action carried out in a reasonable manner.
How to do it better: A strategic approach to performance management
While the FWC will back reasonable management action, managing performance should never be a one-size-fits-all process. Crucial factors such as an employee’s length of service, age, seniority, and past performance history must heavily influence your HR strategy.
When dealing with long-serving employees who have no prior history of performance issues, an abrupt shift to a formal PIP can damage trust. Instead, consider these Bloom HR approaches:
- Adopt a performance development mindset: If a long-standing team member suddenly experiences a performance slump, don’t head straight for a rigid PIP. Frame the initial process as performance development rather than improvement, shifting the focus onto support, guidance, and capability building.
- Lead with relationship leadership and empathy: Start from a place of understanding. Ask what is happening behind the scenes. A performance slump is often driven by systemic changes, new technology, or organisational restructuring that an older or long-standing employee may be struggling to navigate.
- Break poor habits gently but firmly: Years of non-management or shifting company structures can breed bad habits. You can realign expectations through increased supervision, clearer guardrails, and frequent informal feedback sessions to change behaviours that have formed over time.
- Document everything, including informal support: Taking a gentler, relationship-driven approach does not mean skipping the paperwork. Keep records of the emails, meetings, phone calls, offers of support and agreed actions. If performance does not improve and a formal process becomes necessary, this documentation ensures you can justify and outline to the employee the attempts before implementing a formal process.
The Bloom HR Takeaway
Addressing underperformance can be one of the hardest, most fraught, not to mention time consuming processes for managers and it’s not uncommon for employees to mistake constructive feedback for a personal attack. This FWC ruling serves as a reassuring reminder for Australian employers: you have a fundamental right to manage your team and hold them accountable to performance standards, but its not a one size fits all. Ensure to consider all the factors before your embark on a formal process. Put the human back into Human Resources!!
Either way, it’s comforting to know that Fair Work is ruling by the law. And reasonable management actions ARE NOT bullying. The trick is knowing what is ‘reasonable’, and that can be different for each case.
Facing a difficult performance conversation?
Don’t go it alone or guess the legal boundaries. Book a free 30-minute chat with the team via our booking page, and we will give you a compliant PIP and warning letter template to ensure your business stays protected.