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CYA - Manage performance, but don't leave yourself open to a bullying claim

'There's a fine line between character building and soul destroying'

Colin Hay

In my line of work I have seen and investigated far too many genuine cases of bullying, and have witnessed the effects this has on the victims of it.  I have also seen far too many disingenuous claims, used as a tactic against a manager for various reasons, but usually when a manager has been addressing performance issues.   Regardless of the outcome, an investigation into bullying or workplace harassment is very stressful for all involved.  So of course the easy solution is — don't be a bully, and even if you're not, don't set yourself up for a bullying claim.

So if you are a manager of people, experienced or not, and you need to address some performance issues with one of your staff, how do you avoid a bullying claim when you genuinely want only the best for your employee and the business?  I have previously give some 'how to' tips in relation to giving effective feedback here .  Given that the definition of bullying is that it is repeated unreasonable behaviour etc, there should be no confusion between  the process of managers or supervisors giving feedback on performance, and bullying. Sounds simple, doesn't it? Unfortunately, bullying is sometimes in the eye of the beholder, and there is nothing to STOP a claim being made regardless of the merits.  So how best to protect yourself?

First of all there is a difference between giving general performance feedback and formal performance management.  Giving feedback on an employee's performance should be regular.  And it should be often, especially if it is positive feedback. Positive feedback builds confidence and engagement. Oftentimes people tell me they only get feedback when they've done something wrong or at their annual performance review.  Annual reviews should be seen as an opportunity to record a formal discussion and set goals, and there should be no surprises for the employee if regular feedback has been given. Performance management is of course more serious — where you need a fundamental change in order for someone's employment to continue. 

There are a number of ways to reduce the risk of a bullying claim following or during the process of performance feedback or management in any form.  Essentially, put yourself in the shoes of the employee and see things from their perspective. Little things can add up to big trouble for you, especially where nuances of behaviour or perceptions come into play.

Regardless of whether it is general performance feedback or performance management, document all discussions, whatever the behaviour that needs improving; big issue or relatively minor.  I call this 'CYA' or 'Cover your Arse'.  You never know when a conversation, combined with other events, can come back to bite you!

Keep it confidential.  Other than having a confidential discussion with your own supervisor, if you have one, never discuss it with another employee.  Small things and changes in behaviour can lead to unwarranted perceptions on the part of the employee.

Don't try to soften the blow, by, for example suggesting you go for a coffee, or have a chat.  Be clear about what the conversation is going to be about, to avoid allegations that the employee was unable to prepare or was 'ambushed'.  If it is the first time you have had to speak to them, make sure they understand they have the opportunity to come back to you at a later stage if they want to address any issues.  This is particularly important if you are dealing with an introvert. Introverts need time to process their thoughts and may wish to have the opportunity to address your concerns after they have had a chance to think about the feedback they have been given.  So be alert to an employee who sits there in silence.  You may well go back to your office, breathing a sigh of relief,  thinking 'so that went well' while your employee is seething with resentment.

Give the employee an opportunity to come up with solutions to the problem themselves, rather than necessarily dictating them.  They are far more likely to be engaged in the process of improvement if they themselves have thought of ways to improve.

Beware of  your body language after the discussion - I know it can be uncomfortable having had a difficult discussion, but if your employee perceives you to be behaving differently afterwards, this can add to any negative feelings they may have towards you.  Related to this — keep an eye on other team members' behaviour as well.  If they know or suspect a colleague has been having performance discussions, they may change their behaviour, and avoid eye contact or any contact at all, just due to discomfort with the situation.  

Don't try to make it easy for them, even if you feel some sympathy for them, by taking work away from them without discussing it first.  If they suddenly feel like they are being excluded from certain work, or opportunities, not included in emails and so on,  a small resentment can easily develop into a view that 'they're trying to get rid of me'.

Don't suddenly start micro managing the employee — again this will lead to a perception that they are being watched, picked on, etc.

And whatever you do, do not, ever, lose your temper with that person.  While being angry once in a blue moon is certainly not bullying in any definition, and perfectly understandable from time to time, combined with all of the above, it will form of a bullying claim.

Many different behaviours, taken together, rather than in isolation, are likely to form the basis of a bullying claim given that there has to be a 'repeated behaviour' to establish a claim — make sure your intentions are genuine, and your own behaviour is beyond reproach.  If a bullying claim is made, regardless of merit, you will need to be able to answer all allegations.

Most good workplace behaviour policies and the new legislation have a definition of what bullying is NOT - reasonable management action conducted in a reasonable way.  So while discussing performance issues is of course reasonable management action, it must also be conducted in a reasonable way.  Shouting, banging the desk, swearing, telling someone they're useless, excluding them from work opportunities, ignoring them, is NOT reasonable and a bullying claim is likely to be proven.

There is no definition of what is reasonable in these circumstances and there will be cases no doubt that will define it or give examples of it.  The easiest test is: Ask yourself — how would I like to be treated in this situation?  That's usually the best test of reasonableness.  



Being good is not enough

You were hired because you met expectations; you will be promoted if you can exceed them

- Saji Ijiyemi

And if you let someone know what you want

Margaret Jolly


Doing great work and being a good person won’t get you that promotion.

I attended a networking breakfast recently, for recent school graduates, now at University studying law, and the more ‘mature’ school graduates who had been through law school and had established careers.  It was an interesting mix of those of us who had graduated from law school. There were solicitors in private practice, a QC (one of only five female QCs in Brisbane), in house counsel, and me, who works in management.  A recovering lawyer, some might say.

The young women in the room were so full of optimism and enthusiasm it was infectious.  It was amazing what they had achieved in such a short time.  When I was at University the only thing I worked on in my holidays was my tan, but these young women worked - in part time jobs, as volunteers, in law firms, for barristers, or full time in paying jobs to get themselves through university.  It was heartening to know that they still had fun and a social life.

Talk came around to ‘getting to the top’ whatever that might be for different people.  One of the young women said that she thought as long as she did good work, ‘kept her head down and got on with it’, she would ultimately be recognised and promoted.

Unfortunately that is far from the truth.  Being good at your job and a ‘good girl’ will not get you a promotion or a pay rise.  The fact is that SOMEONE has to know what you want and when you want it.  And preferably that person needs to champion your cause.

Ask for what you want. Be prepared to get it.  Being good at your job is not enough.


Giving effective feedback

"The more feedback you give to people, the better it is, as long as the feedback is objective and not critical"

- Brian Tracy

We all know the feeling. Someone in your office, or on your team, is not performing to expectations. It might be how they answer the phone, deal with clients or suppliers. They might not be pulling their weight, not keeping filing up to date. Or there may be more serious performance issues. It could be any one of a number of things. It starts off as a bit annoying. You think it will get better - they'll work it out. Then it becomes more annoying or the behaviour actually gets worse. It is starting to affect other people in the office - not just the particular issue, but soon staff are complaining loudly that you're not dealing with it. How do you overcome the very natural aversion to conflict or having a difficult conversation?

This article will give you tips on how to have that difficult conversation you would rather not have. It will not deal with formal performance management, which will be the subject of another article.

  • First of all, remind yourself that performance issues don't get better on their own. If staff are not aware there is a problem they will assume they are doing the right thing. In fact, if not addressed, the problem often becomes worse.
  • Check up on your own concerns about confronting the issue. Ask yourself 'What's the worst that can happen'. They might become upset, angry or completely shut down. If you're prepared for the worst, then anything else is easy to deal with. If you are also the sort of person that likes to be liked, acknowledge that - but also acknowledge that you can still be likeable if you deal with a difficult issue in a professional, and empathetic way.
  • Make it timely - address it early, and preferably close to an example of the problem behaviour. For example if a staff member is required to complete a particular task on a particular day each week, and regularly misses it, address it at the next opportunity. If a piece of work submitted to you is not satisfactory, think about how you will have the discussion and address it promptly - don't wait a week.
  • Get the geography right. Never give constructive or negative feedback in front of others. If possible, try not to have the discussion across a desk as this can impede an open conversation. Even better, if you can get out of the office altogether, it takes some of the office tension away, and also relieves the staff member of any embarrassment. You would be surprised how mush easier one of these conversations is, being done over a coffee, or by going for a walk.
  • If you are able to, give positive feedback to the staff member about their performance first. Feedback given in an environment of trust, with good intentions, where the employee feels valued, is much more likely to be accepted.
  • Focus on the behaviour, not the person. Make sure they understand the impact the behaviour has on others, you, or the business.
  • Make sure you have some concrete examples or feedback from others to support your views.
  • Frame the conversation beforehand - be very clear in your own mind about the result you want to achieve. No one likes receiving negative feedback, and sometimes the recipient will derail the conversation with excuses, blame or denial (more about that in future articles). So it's a good idea, to be very clear in your own mind about how the conversation will start and progress to the result you need, which is the staff member accepting the problem and committing to making some changes. No matter how often you find yourself going off on a tangent, come back to the main issue.
  • Be empathetic if they become upset but firm in the need for improvement, e.g. 'I know this must be difficult for you, but ultimately this is an important issue that needs improvement and I'm confident that can be achieved'.
  • Check their understanding of the issues before ending on a positive note, ie, expressing confidence in their ability to improve. Don't give more positive feedback, as this can be confusing and dilute the message. But it is ok to be positive in closing the conversation, eg 'you're a valuable employee, and I'm sure that now you're aware of our expectations, you will continue to improve'.
  • Be open to taking some feedback yourself - ask if there is anything you, or anyone else in the team, can do to help the situation. It may be that something you are doing or the way the job is structured, is not helping them.
  • Agree to follow up again in a specific timeframe and if improvements are noticed, make sure that is acknowledged in a timely way, even before any formal meeting.

Coming up in future articles - how to deal with objections, the benefits of positive feedback, formal performance appraisals, and performance management.

The greatest of virtues

"Gratitude is not only the greatest of virtues, but the parent of all the others"

- Marcus Tullius Cicero

A lot has been written over the years about 'employee engagement' — about how to keep employees happy, engaged, at work, and reduce the risk of top performers leaving. A great deal of money has also been spent on engagement surveys and employee engagement programs.

There is an easy way to make sure employees remain engaged and loyal and it doesn't have to cost any money. And that is by saying 'THANK YOU,' and saying it often. Of course, it is one of many tools for ensuring engagement but it goes hand in hand with being respected and valued, and having a supervisor, manager or leader they respect.

Margie Warrell also wrote about this important aspect of leadership.

As a leader, or potential leader, you will have many people doing many different things for you each and every day. Try noticing those things, acknowledging them, and saying thank you. Staff will feel appreciated and are more likely to want to do more for you, feeling acknowledged and appreciated.

Take it one step further than saying thank you — say it out loud in the presence of others, and make it specific. Don't just say 'thanks for that'. Say, for example, 'thanks for getting that data to me so quickly — it really made getting my report to the client on time easier'. Or 'the client was really happy with my report — thanks so much for your input and your quick turn around time'.

I'll give you a specific example of the incredible effect of gratitude. When working in a large professional services firm many years ago, the business development team was working to a tight deadline to get a tender document out on a Monday. A few people were asked to work over the weekend to make sure it was finished on time.

I spoke to the managing partner on the Monday and mentioned the people who had given up their weekend — at all levels. Some worked in BDM, some were lawyers who wanted to win the project, and some were admin staff, responsible for the typing, collating and copying of the document. I suggested he send an email to them to thank them. He asked me to draft a quick email for him. Now I am not one of those people who spend their time wondering if something someone asks me to do is my job or not. In that moment, my job was to make him look good, and make all of those people feel appreciated. So I drafted the email, sent it to him, but asked him to send the email individually, not as a group email, which he did.

He came to see me later — one of the word processing staff had (he had been told), burst into tears when she got the email. No one (NO ONE) of 'importance' in any organisation she had worked for, had ever said 'thank you' to her like that. Acknowledged that, while, she may have been paid overtime, her commitment was what was valued, and her contribution to the firm in getting that job out the door.

He was stunned by this, and the effect it had on her — he went out of his way from then on to make sure he knew when staff had gone 'above and beyond'. And he always thanked them. It became a healthy virus in the office — because other people started acknowledging their work mates and saying thank you.

"No one who achieves success does so without acknowledging the help of others. The wise and confident acknowledge this help with gratitude."

- Alfred North Whitehead

But the really good news is that studies show that the art of expressing gratitude increases the sense of well being in those expressing it — it is associated with increased levels of energy, optimism, empathy and also creativity. This certainly was the case in the example above. I know he felt like he was a better leader for it, and he knew he was making a difference. And pretty soon I didn't have to keep telling him the good news stories — he found out about them, or noticed them himself.

Ask yourself — do you want to be the person your staff most look forward to seeing when you walk into the office? Try acknowledging them and finding a reason to thank them every day.

The standard you walk past is the standard you accept

"The standard you walk past is the standard you accept"

- Lieutenant General David Morrison

This post was first published by Diversity Partners. Imagine going to work every day, knowing that a colleague has taken photos or video of you, of a sexual nature, and distributed them not just to other work colleagues, but via work email, sent them outside the organisation, and published them on the Internet. Imagine then, if you had no way of raising this with a person in a leadership role, or worse, doing that and having nothing done about it. I imagine I would leave that organisation knowing the humiliation would last a lifetime.

I have been involved in many workplace disputes, investigations, conflict resolution, and discipline around inappropriate behaviours – from what some would perceive as minor to the very major. It would be a rare organisation, which did not go through something like this at least once. There have been many public examples as well.

The very worst cases, the ones that generally make the media, have been those where the complainant has felt let down by their employer in either not dealing appropriately with the situation when it was brought to their attention or having no means by which they felt able to raise a concern. The army is no longer prepared to be one of those employers.

If only every CEO of every organisation could take a leaf out of the book of Head of the Australian Defence Force, Lieutenant General David Morrison.

Recently, the Australian Defence Force has been the subject of very public sexual harassment claims, and allegations of inappropriate conduct. Lieutenant General Morrison made an announcement regarding his attitude to this sort of behaviour and the culture of the ADF for all its employees - view the full Message from the Chief of Army. He makes absolutely no bones about his attitude to this behaviour and what he thinks of those who not just perpetrate it, but those who know about it and do nothing. It makes me want to join the army.

Take a moment to think about that incredible speech. Replace the word 'army' with the name of your own organisation. Think of this speech as if it is also referring to bullying or any other kind of harassment or discrimination, towards anyone, male or female. Any CEO who honestly wants a diverse, inclusive and safe workplace should read, mark, learn and inwardly digest his words. And live them. Here are some of my favourite quotes (taking out the reference to the army). This is true leadership in action:

"Every one of us is responsible for the culture and reputation of [your company] and the environment in which we work'

'If you become aware of any individual degrading another then show moral courage and take a stand against it. No one has ever explained to me how the exploitation or degradation of others enhances capability or honours the tradition of [your company] and the environment in which we work'

'I will be ruthless in ridding [your company] and the environment in which we work of people who cannot live up to its values and I need every one of you to support me in achieving this'

'The standard you walk past is the standard you accept." That goes for all of us but especially those who ...have a leadership role."

The entire speech is inspiring but the reason these are my favourite quotes is that Morrison entreats his entire workforce to join him in this cultural revolution of the army. And it is not about how men treat women. It is about how people treat other people in the organisation. It is not just him but each and every member of the ADF who will take responsibility for living the values. Great leaders cast long, deep and broad shadows - their influence reaches beyond those with whom they come into direct contact because they are symbolic of the values of the entire organisation. Lieutenant General Morrison already has a long shadow.

We can all learn from this speech. And we can all do something to show our respect and care for others today and every day.