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The Interplay between Performance Management and Complaints of Workplace Bullying

Updated: Feb 11






It is not a particularly rare situation for an employee whose performance or behaviour is ‘on the radar’ to raise a bullying complaint against their manager, or the employer in general.

Sometimes, such complaints may indeed be genuine and substantiated, and the performance management or disciplinary process itself may be part of a course of conduct that could be characterised as bullying.


Other times, the raising of a bullying complaint may simply be a strategy to ‘fight fire with fire’ and to distract from an employer’s genuine concerns. It could be a strategy to create a basis for negotiating an exit agreement.

Whichever the situation is, the key is that an employer needs to genuinely consider and deal with an employee’s bullying complaint, even if it is suspected to have no substance or being made for an ulterior motive. The consequences of not doing so, or not doing it right, have recently been highlighted by the Employment Relations Authority.


What happened?[1]


Ms Hendry was employed as a claims manager for Talley’s in Nelson. Ms Hendry raised complaints about bullying behaviour by her immediate team leader. She raised these concerns as well as some concerns of a personal nature with the team leader’s manager, Ms Plum. Ms Hendry told Ms Plum that she may have to look for work elsewhere if things would not change. In turn, Ms Plum raised concerns about Ms Hendry’s work performance and her attitude at work.


Shortly after, Ms Plum received an anonymous complaint about Ms Hendry’s attitude at work, her timekeeping, dealing with personal matters during work hours, etc. The complaint effectively covered the concerns that Ms Plum had raised with Ms Hendry when they met earlier. Whilst Talley’s provided a copy of the complaint letter to Ms Hendry, it advised Ms Hendry that no action would be taken based on the complaint (because it was anonymous). Ms Hendry nevertheless felt shocked, defamed and highly anxious after the complaint was made known to her. Despite telling Ms Hendry that no action would be taken at the back of the anonymous complaint, Talley’s subsequently informed her that her response was needed to the complaint and that the concerns raised by Ms Plum (and in the complaint) regarding her work still needed to be addressed, potentially by way of formal performance management.


Ms Hendry then raised a personal grievance in respect of Talley’s actions related to the anonymous complaint and also regarding Talley’s omission to investigate and deal with her own complaints to Ms Plum.


Talley’s took the position that it had genuine performance and conduct concerns regarding Ms Hendry and was therefore entitled to raise them with her, as much as it was entitled to bring to Ms Hendry’s attention the anonymous complaint and to seek her responses. Talley’s also believed that it had appropriately considered and responded to Ms Hendry’s complaints as far as they had been raised (which was disputed by Ms Hendry).


Talley’s and Ms Hendry agreed to attend mediation and until then Ms Hendry stayed away from work on unpaid sick leave. Mediation took place about seven weeks later and the matter remained unresolved. Ms Hendry then informed Talley’s that she would be returning to work. Just prior to her return to work, Talley’s responded to Ms Hendry’s intention to return to work, but the response did not alleviate any of the concerns Ms Hendry had raised regarding her return to work, particularly regarding Talley’s not investigating and dealing with Ms Hendry’s complaints of workplace bullying. Upon receipt of this response, and just before she was about to return to work, Ms Hendry submitted her resignation, citing the above reasons.


The Authority’s Determination and Outcome


The Employment Relations Authority concluded that Talley’s had failed to properly investigate Ms Hendry’s complaints about her team leader. Whilst Talley’s had considered Ms Hendry’s complaints, the Authority found that Talley’s analysis of Ms Hendry’s complaints was “superficial” and based on an assumption that the complaints were solely motivated by a personal dislike towards her team leader and jealousy. This did not suffice to discharge its obligation to properly consider and investigate an employee’s complaint. Specifically, the Authority found that:


“To dismiss all of this [i.e., Ms Hendry’s complaints and her anxiety regarding returning to work, etc] at that time and focus on concerns about Ms Hendry’s performance and behaviour, rather than considering whether the concerns about Ms Hendry were in part because of CFD [Ms Hendry’s team leader] and their behaviour and potentially wider issues for Ms Hendry at work is unacceptable. It appears the easier view was to believe all of Ms Hendry’s issues were informed or created by her and her resentment of work and CFD; effectively turning Ms Hendry’s complaints and concerns back on her as poor performance.”


Further, the Authority concluded that Talley’s had breached its duty of good faith by providing Ms Hendry with the anonymous complaint without investigating it and in circumstances where it told her that Talley’s would not rely on the complaint, yet it insisted that she respond to it.


The Authority determined that Ms Hendry had been unjustifiably (constructively) dismissed, and it awarded compensation of $28k, as well as lost remuneration of approximately $15k.


Key Takeaways


The Authority’s determination provides important guidance for employers when dealing with employee complaints, particularly during a concurrent performance management process (or, for that matter, any other formal process that may affect the continuation of the employee’s employment):


  • An employer must deal with an employee’s complaint in a fair, reasonable and timely manner. This involves an adequate investigation into the employee’s concerns, rather than making unqualified assumptions about a complaint’s substance.

  • If an employee complaint is raised during a performance management process, that process should be paused, and the employee’s complaint be investigated. This is because the outcome of the investigation may very much inform the further course of the performance management (or other) process.

  • The investigation into the employee complaint should not be carried out by the same person that administers the performance management (or other) process, and/or determines its outcome.


We are here to help!


Both preparing and carrying out a performance management process, and investigating and dealing with employee complaints, can be extremely stressful processes full of potential technical challenges, risk, and liability. Mistakes can happen easily and are often costly as this case example illustrates.


Seek our advice and utilise the expertise of our experienced consultants and legal specialists. As we always say, investment towards prevention is usually better, faster, and cheaper than investing into dispute resolution after the fact.


In addition, you can utilise our resources, including polices (for example regarding performance management, disciplinary action, bullying and harassment) and our toolkits and template documentation (for example on running a performance management process, investigating employee concerns, etc).


Don’t hesitate to reach out to us at lowdown@cinchhr.co.nz or on 0800 246 241.


Likewise, reach out and have a chat about how else we may assist your business with all matters related to HR and employment law, outsourced consultancy services, legal services, or HR software.


[1] This is a simplified summary of the facts of the case. For a full outline of the facts and the Authority’s determination, see https://determinations.era.govt.nz/assets/elawpdf/2023/2023-NZERA-720.pdf.



 








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