A senior FWC member has recently made the observation that it is ‘unfortunately easy’ to allege bullying when undergoing performance management.  The observation was in relation to a Berwick Waters Early Learning Centre Pty Ltd room leader who resigned stating her decision was due to ‘all the mental harassment I received from the organisation over the past few months’.

She further made reference to ‘performance issues allegations (without any evidence) and being bullied by the centre director’, saying she made attempts to resolve the issues however the HR team provided no support.

In her FWC unfair dismissal case, the employee alleged that she resigned due to realising that the employer would do nothing about her complaints.

Her employer’s claim was that the employee was undergoing a procedurally fair and reasonable performance process and performance plan, received a first warning and as a result alleged bullying 10 days after the performance plan was created.  The room leader advised that she would take indefinite stress leave feeling bullied as a direct result of the performance management process.

The employer was able to provide records of the process they followed, that included the performance issues put to the room leader, the opportunity for the leader to respond to those concerns and further response by the employer to claims the room leader had been underpaid.

The employees’ case was dismissed with Deputy President Reg Hamilton stating that the allegations put to the room leader had some substance.  He was unable to find any evidence of coercion or similar conduct (alleged by the room leader) which may constitute constructive dismissal.

The Deputy President went on to state that such counter allegations made by the room leader must be substantiated and that the room leader failed to provide evidence that any bullying had indeed occurred.

Deputy President Hamilton said it was "unfortunately easy to respond to performance or disciplinary allegations, with counter allegations of bullying", and that it would be “disappointing if a custom and practice arose of applicants making unsubstantiated allegations of bullying or general protections breaches in response to ordinary employer performance improvement, disciplinary or other action", deeming it “an abuse of process”.

This case reiterates the importance of ensuring that due process is followed and documented accurately.

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