Perception is not a basis for management or disciplinary action in the workplace and is not a substitute for reality. This should be a statement of the obvious but we are seeing an increasing trend of employment allegations being based on perceptions rather than facts. We have commented in a previous bulletin on the undesirable nature of “tick and flick’ processes where complaints are simply passed on as allegations without any investigation of their merit. The making of allegations based on subjective perception is just as undesirable. It is not only lazy but fundamentally misconceives the purpose of making allegations.
Often combined with a highly general statement that a person said something (often only identifying the effect of the words used or quoting particular words without further context), the allegation usually states that the other employee considered this to be “undermining behaviour”, or “concerning”, or “discriminatory” or, as we have seen on one occasion, “defamatory”. We have even seen a recent allegation that a manager felt concerned for their safety when an employee said “Be brutal” to another employee in speaking to the manager. The barest of enquiry would have ascertained that the comment was made in the context of giving honest feedback to the superior.
Allegations of this nature are unlikely to give any support to disciplinary action or termination of employment IF an independent tribunal is able to examine the matter. Whether an allegation has substance is an objective exercise and how a person felt is not relevant to this issue. A state of apparent distress is not proof that the alleged event occurred – see Mojanovski v BlueScope Steel Limited. Perceptions can vary wildly depending on a person’s circumstances. This is why workplace bullying, for example, has a reasonableness test.
We have seen several instances where an allegation of bullying has been expressed simply as an employee raising their voice or ignoring someone over a period of time which has made a fellow employee feel distressed. These sorts of allegations are on the one hand very difficult to respond to because of the lack of factual detail but are even harder for the decision maker to assess. If there is some support for the complaints, then the allegations should detail particular incidents by reference to the date, place, time, context and what precisely is alleged to have been said or done. The allegations should detail how those facts, if proven, amount to a breach of particular policies and particular parts of policies or another type of breach. Use the When, Where, Who, What Rule – when did it happen, where did it happen, who was there and what happened – what was said or done or what occurred. Be as specific as possible.
Just as undesirable is the practice of using perceptions as part of performance review or management processes. For example, a statement that an employee is perceived by others as being short or abrupt is not likely to be constructive. In the absence of evidence of particular instances, the employee has no basis on which to improve their alleged behaviour. Employees are likely to search their own memory and provide context and explanation for any instances they feel may have occurred. They are also likely to become defensive. It is human nature to become distressed where an allegation of general behaviour is made without any factual evidence to back it up.
This style of management is likely to be destructive of employee confidence and psychologically damaging. It invites a potential workers compensation claim and/or bullying complaint or other legal action such as a breach of general protections rights claim and management of this type runs the risk of not being regarded as reasonable management action taken in a reasonable way. Managers should also be wary of attaching value to general non specific comments of others, particularly when obtained through anonymous surveys. In extreme situations, this may amount to workplace “mobbing” or being ganged up on. Performance should be capable of being measured objectively.
Procedural fairness should be the rule rather than the exception in the workplace and should not be reserved for formal disciplinary action only. This means giving an employee a fair and reasonable opportunity to be heard before a decision is made. The basics of procedural fairness involve:
1. allegations or issues being put to an employee in sufficient detail;
2. the employee being allowed to respond appropriately; and
3. any response being taken into account before a decision is made about termination.
What should an employee do if they feel they are not getting procedural fairness? The starting point is to ask for it. An employee is entitled to ask for clarification of allegations, the evidence being relied on by the employer and a reasonable opportunity to respond in writing and/or verbally. If this is not provided, an employee may make an internal complaint or potentially use a dispute mechanism in an employment contract, policy or enterprise agreement and may have other legal options. If all else fails, then any response should note the lack of procedural fairness. There is no “one size fits all” model but employers disregard or pay lip service to procedural fairness at their peril.
Please contact us if you would like any further information or help.