Background

Following a range of performance concerns (including a failure to meet targets), an employee was placed on a performance improvement plan (also known as a “PIP”). The employee took issue with the PIP describing it as a 'fabrication.' He challenged the targets, claiming some of the tasks were not valuable and refused to complete them.

The employee’s manager attempted to work with the employee to help him achieve the required targets and performance measures. This included offering to sit down with him to complete an overdue portfolio plan. The employee described this offer as 'frustrating' and an attempt to undermine his experience and success.

The worker refused to engage with his manager and insisted that all communications be in writing. The worker’s responses were persistently rude and dismissive, and he often copied in many irrelevant parties.

The employee continued to perform poorly and repeatedly challenged the validity of the PIP. He was informed that his inappropriate behaviour, including his communication with his manager, refusal to perform tasks and refusal to comply with his manager’s request to refrain from listening to podcasts and complete his work, would require him to attend a disciplinary 'hearing.'

The employee raised an internal grievance alleging the way his performance management was carried out amounted to bullying. He then took personal leave and during his absence made an application to the Commission seeking an anti-bullying order.

The decision

Having observed the employee and listening to his evidence, the Commission described his behaviour as 'blatantly misogynistic.' The Commission noted the employee addressed his female manager in a condescending and rude manner, which was significantly different to how he communicated with male managers.

The Commission was satisfied the employer had followed its processes and was entitled to engage in management action in the way it did, including placing the employee on a PIP.

Describing the employee as 'petulant, disruptive and rude,' the Commission dismissed the application and suggested the employee consider making an apology.

The decision emphasises the right of management to take reasonable management action in the workplace, even when dealing with challenging employees.

Learnings for business

This case reinforces the importance of having sound workplace policies and procedures in place which staff are well aware of and trained in. These give managers an approved framework to operate within when faced with challenging employees, such as the 'blatantly misogynistic' behaviour of the employee in this case.

In the heat of the moment, it is useful for managers to have a policy and procedure they are familiar with to rely on to help them navigate the situation.

The Commission did caution the employer about calling disciplinary meetings 'hearings,' which is an important reminder to all employers to ensure appropriate and fair language is used throughout any disciplinary process.

The Commission also noted that some of the allegations of misconduct put to the employee by the employer 'lacked specificity.' This is a reminder to keep principles of natural justice in mind when engaging in a disciplinary process and ensure that any allegations are detailed enough to allow them to be understood and responded to.

How we can help

Our Workplace Relations Advice Line and Consulting Team have a wealth of experience helping businesses manage performance and conduct issues both before they get to the Commission and after. We recommend businesses are proactive and act swiftly when managing any workplace issue.

For immediate advice and support members can call our Workplace Relations Advice Line on (03) 8662 5222.

Our Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Policies a business should have in place
• Disciplinary and performance management processes (including bullying matters)
• Details of VCCI’s FWC representation services
• Details of VCCI’s training services (including our training courses for managers and HR staff).

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.