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The Fair Work Commission (FWC) has dismissed a formerly high-achieving employee's stop bully application, in which he claimed the performance improvement plans (PIP) implemented by his employer were an act of workplace bullying.

In Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears [2018] FWC 2906, the employee was a long-serving engineer for AGL Macquarie and was promoted in 2013 as recognition of his performance. However, in March 2017 he was placed on a PIP, which was revised and re-issued in June 2017. In response, he filed an application with the FWC for an order to prevent bullying occurring at work under s 789FD of the Fair Work Act 2009 (Cth).

The employee argued that the PIPs were "unreasonable management action" on the basis they addressed issues that were not included in his role description or were not achievable for a person in his role to undertake.

AGL Macquarie acknowledged the impact the PIPs were having on the employee's health and submitted that they had offered personal support and alternative options to the employee, including a reduced workload. It submitted that the PIP was put in place to improve his performance, rather than in an attempt to remove him.

The FWC found that the employee's performance provided justification for a PIP and that the actions and expectations in the PIPs were achievable. Further, it found his supervisor was compliant with company policy in providing informal coaching and an opportunity for the employee to improve on these areas of concerns before issuing the PIP. It found that when determining what constitutes a "reasonable management action", you must look at whether the management action (including performance and disciplinary matters) was reasonable, not whether it could have been done in a more reasonable or acceptable manner, or how the employee perceived the action.

Lessons for employers

The takeaway from this case is that PIPs can often be viewed by an employee as the first step towards removing them from an organisation—they should be made aware that this is not the case. When implementing PIPs, you should ensure you are assisting and supporting the employee towards improving their performance. You should be sensitive to the employee's response to performance management, including (when appropriate) offering additional support by way of an employee assistance program. Finally, as always, ensure you follow any relevant policies and procedures, and document the process so there is contemporaneous evidence of the method used. 

The decision can be accessed here.

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