In a recent decision on a stop bullying application, the Fair Work Commission (the FWC) has provided support to employers (and in particular, managers) attempting to manage underperforming employees in a reasonable manner.
In the matter of Re Heidel [2026] FWC 893, the applicant sought stop bullying orders against her acting manager and employer (the University of Notre Dame Australia).
The applicant alleged that her acting manager had been bullying her in the workplace by managing her performance in an unreasonable manner. By way of example, the applicant noted:
- The manager had questioned her about an incomplete task even though the applicant had not been given a deadline for the task. The manager had also indicated that she expected an employee at the applicant’s level should be proactive about tasks and deadlines.
- The manager had sought to clarify with the applicant why she had refused to provide support to another department and the applicant clarified that she did not refuse to provide support.
- The applicant had confidentially sought information from human resources about how to make a bullying complaint and this was shared by a HR partner with the manager.
- The manager had asked the applicant to share a list of meeting attendees to the Department of Social Services, and the applicant advised the manager that another employee had not sent the list despite being requested to do so. The manager advised the applicant that she was aware of this.
- Ahead of a catch-up the next day, the manager had sent an email to the applicant setting out five outstanding tasks as well as concerns about the applicant’s lack of progress, engagement and proactivity. The manager advised the applicant that she wanted to understand the applicant’s perspective and if she required more support. She also advised the applicant that if nothing changed, then she would be looking to meet with the applicant more regularly and would also need to review the applicant’s remote working arrangement. The applicant’s response was that the tasks were not her responsibility.
- The manager than sought a meeting with the applicant to discuss her performance concerns, specifically in relation to budgets and monthly accounts, stakeholder engagement and qualitative matters. The manager stated that if those concerns could not be addressed by the applicant, then she might be placed on a performance improvement plan.
- Following receipt of this, the applicant lodged the application for stop bullying orders. She claimed that she had not been provided with sufficient details of the concerns and that she had not been given enough notice for the meeting.
The FWC did not consider the manager’s conduct to be bullying behaviour. On the contrary, it found that the manager had taken a reasonable and appropriate approach to management of the applicant’s performance. Specifically, the manager had attempted to deal with the issues informally but, when the applicant refused to acknowledge the issues with her performance, the concerns were escalated to a formal performance management meeting. The outcome of that meeting was not yet determined and the applicant would have an opportunity to be heard.
The FWC acknowledged that some of the examples put forward by the applicant were not ideal. For instance, the HR business partner should not have disclosed the applicant’s enquiry to the manager. Also, the manager may have formed a negative view of the applicant on the mistaken understanding that the applicant had ignored an email from her (when in fact she had not). However, these were not examples of unreasonable behaviour by the manager.
The FWC considered that the applicant was attempting to avoid scrutiny of her work performance by claiming that she was being bullied. According to the FWC, if the applicant had been performing at an adequate level, then it would be easy for her to address the manager’s concerns. Instead, she had shown a tendency to claim that she does not understand the requirements of a task or deadline, delegated work to other people and then blamed others when tasks are not completed.
The FWC also considered it reasonable of the manager to re-assess the applicant’s remote working arrangements in circumstances where the employee could not establish that she was meeting the requirements of the role while working remotely.
Accordingly, the FWC concluded that the applicant had not been bullied at work and the application was therefore dismissed.
Lessons for employers
The stop bullying jurisdiction has unfortunately heard a number of matters similar to this, where an employer’s legitimate performance management process is claimed to be workplace bullying. This decision confirms that such processes – when conducted in a reasonable manner – will be upheld and supported by the FWC and that applicants cannot use the jurisdiction to avoid scrutiny of their performance.
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