How to Draw the Line between Tough Management and Workplace Harassment

The difference between tough management practices, which demand high performance, and a manager who harasses employees could be very subtle. Determining where a manager’s behaviour crosses the line in a way that the courts deem to be harassing could be very difficult.

The cost of these behaviours to a company in terms of stress, anxiety, absenteeism and turnover is huge. However, effective performance and behaviour management creates a harmonious and productive workplace, which is beneficial for both employees and employers.

This blog will cover how to draw the line between tough management and workplace harassment. It is best practice to follow these tips in order to protect your company, yourself and your employees and ultimately promote a positive working environment for all.

The blog will cover the following topics:

• Defining Workplace Harassment
• Managing Performance
• Reasonable Management Action vs Tough Management
• Lessons for Employers

Defining Workplace Harassment

In Australia, employers have a legal responsibility to provide a safe workplace under the Work Health and Safety Act 2011 and anti-discrimination laws. Similarly, in the United Kingdom, employees are protected from bullying and harassment under the Equality Act 2010.

Learn more about the consequences of “intimidating, threatening” and disrespectful behaviour towards colleagues in the recent sacking of James Hardie CEO Jack Truong.

Managing Performance

The best businesses are always improving their operations to stay competitive in their industry. To be able to do this, employees and managers need to be performing to a high standard.

High performance in business means:

• increased productivity
• engaged and committed employees
• retaining good employees.

Underperforming employees can have a negative effect on a business, such as:

• unhappy customers or clients
• decreased productivity
• high turnover
• decreased employee morale’

Employers need to be careful as tough management can affect employee performance and turn a high performance employee to an underperforming one.

Reasonable Management Action vs Tough Management

At some point, every employer will need to manage an underperforming staff member. In practice, this means taking steps to deal with poor conduct, including:

• Non-compliance with policies/procedures and other workplace requirements
• Inappropriate, disruptive or generally bad behaviour
• Unsatisfactory performance of work tasks

As it might be difficult for some managers to understand the fine line between what counts as reasonable and as tough management, this process needs to be handled with care.

The necessary steps may range from informal performance management, where the inappropriate or unsatisfactory behaviour is brought to the staff member’s attention, through to a more formal process such as the implementation of a performance improvement plan.

Employers are not prohibited from dealing with employees that they consider are underperforming. However, care needs to be taken to avoid bullying an employee. But what is reasonable management action?

Examples of reasonable management action may include:

• setting reasonable performance goals, standards and deadlines
• rostering and allocating working hours where the requirements are reasonable
• transferring a position for operational reasons
• deciding not to select a worker for promotion where a reasonable process is followed and documented
• informing a worker about unsatisfactory work performance when undertaken in accordance with any workplace policies or agreements that have been communicated to the worker, such as performance management guidelines used within the company
• informing a worker about inappropriate behaviour in an objective and confidential way
• termination of employment

Lessons for Employers

When making an objective assessment of the reasonableness of the management action, it is important to consider what caused the action, what circumstances were in train while the action was taken, and what occurred as a result. Even with tough management, individuals can be someone employees respect if they find a balance.

It is also important to note that there is no ‘retrospective gold standard’. Just because an employer may, in hindsight, have been able to improve on the way they undertook the action, does not necessarily mean that it was not an appropriate reasonable action at the time.

Moreover, although the staff member’s perception of a negative management action is likely to tend towards it being unreasonable, the standard is objectiveness and this is not determined by one or a group of employees’ views.

Here are some questions to ask yourself when determining whether it is legitimately harsh management practices or harassing behaviour from a legal perspective:

1. Is the employee offended by the behaviour?
2. Is the behaviour sufficiently severe or pervasive to create a hostile or abusive work environment?
3. Does the employer have and enforce policies intended to prevent unlawful harassment?
4. Did a tangible adverse job action result from or accompany the manager’s treatment of the employee?
5. Is the manager a senior officer of the company?
6. Did the affected employee complain?
7. Would a reasonable employee be offended by the behaviour

Preventing Underperformance

According to the Fairwork Ombudsman, the best way to manage underperformance is to make sure it doesn’t happen in the first place. Communication is the key. Steps that employers can take to help prevent underperformance include:

• listing behavioural and outcome expectations in position descriptions
• addressing any issues as soon as possible
• having regular performance reviews to outline expectations from the beginning
• encouraging employees to talk to a manager or employer if they have any questions or concerns

How Polonious Can Help

Many businesses can benefit from better management practices. The polonious case management system can provide a transparent, repeatable performance management or misconduct investigation process, to ensure procedural fairness and eliminate bias. It is fully audit-logged in case of any complaints or appeals. Furthermore, detailed reporting can help you identify systemic performance or misconduct issues. Polonious can also help you with ethical workplace monitoring which enables enhanced productivity, trust and legal compliance.