When employees perceive performance management as bullying

Performance management is a frequent context for bullying applications under the Fair Work Act 2009 (Cth) (FW Act) anti-bullying scheme. Employees who are subject to increased supervision, feedback, performance improvement plans, or decisions about duties or location, sometimes perceive these actions as adverse or targeted. However, routine workplace management and feedback, while sometimes uncomfortable, do not of themselves constitute bullying.

The Fair Work Commission (FWC) consistently distinguishes between actual bullying and genuine attempts by an employer to address performance issues or enforce legitimate workplace standards.

What is the anti-bullying scheme?

The FW Act provides Australian workers with an avenue to seek remedies for workplace bullying through the FWC. Under this anti-bullying scheme, workers who reasonably believe they have been bullied at work may apply to the FWC for an order to ‘stop bullying’. The FWC can only make such an order if satisfied that the worker has been subjected to repeated unreasonable behaviour at work that creates a risk to health and safety, and that there is a risk of this behaviour continuing. Orders are preventive, not punitive, and do not include awards of compensation.

How can you prove your conduct was performance management?

Employers can defeat anti-bullying claims if they demonstrate that the conduct in question was “reasonable management action carried out in a reasonable manner”.

Examples include:

providing constructive performance feedback;
requiring attendance at the workplace;
restricting outside employment for conflict-of-interest reasons; and
investigating workplace complaints in accordance with policy.

This defence is not satisfied if management action is unreasonable, taking into account the context and circumstances when the action was taken. The action does not need to be perfect but must be lawful and not irrational, absurd or ridiculous.

The FWC’s anti-bullying scheme requires clear evidence of repeated and objectively unreasonable conduct, not merely hurt feelings or disappointment with managerial decisions. For employers, an important safeguard lies in documenting performance management processes and ensuring that managers are trained to carry out their responsibilities in a fair and consistent manner.

Reasonable management defence in action

Two recent FWC decisions, Craig v Family Service Ltd (2025) and Applicant v Australian Government Health Agency (2025), illustrate these principles in practice, particularly in the context of performance management. Find out about these cases in our bulletin next week.

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When employees perceive performance management as bullying – Part 1