Don’t let Performance Issues ‘slide’ in fear of a bullying claim

FWC recently in Mrs Seema Kurup [2025] FWC 921 found that a manager did not bully an employee by providing her a lower annual rating than usual.

The employee had received three consecutive “exceeding expectations” ratings before a new supervisor, only two months in the role, advised she had received an “achieving expectations” rating for her latest period of review.

This followed a meeting where the employee expressed frustration with a "dodgy" colleague and the previous supervisor's handling of her related complaints. Shortly afterwards, the supervisor directed her to form a ‘social contract’ with the colleague to reduce friction. The employee also believed the supervisor made "racist" comments about her home country and that she repeatedly targeted her with "destructive" personal feedback. She requested an investigation into her treatment, which was conducted by her supervisor's manager and did not substantiate her grievances. This prompted her to file an anti-bullying application naming both her supervisor and the senior manager.

FWC found that the issue largely resulted from a regrettable escalation due to differing communication styles and expectations between the employee and the supervisor. The primary catalyst for the dispute was the performance rating the employee did not agree with. FWC recommended training managers on how to provide constructive feedback and handle difficult conversations.

Our Take

This decision echoes what we have been saying since Edge Legal was created:

1. Train your managers to effectively conduct regular one on one meetings with their direct employees – weekly is best;

2. Effective feedback cannot be delivered and received without trust by both parties; and

3. Train all employees in self awareness and effective communication – we recommend DISC as an easy to implement tool.

Whilst this case also underscores the need for transparency in the performance review process and the importance of explaining the metrics against which employees are assessed, it is just as much about radical candour – sometimes you just have to tell someone that they are not as good as they think they are or that others have avoided telling them the truth about their performance (which we think is the more likely).

Employees can't improve if you don’t show them a pathway for improvement. Conversely, employees need to be able to trust their managers that discussions about performance are not just a ‘de facto’ pathway to termination of employment.

Action Items:

• Train Managers on how to deliver One on Ones: Ensure that all managers are trained on how to provide constructive feedback and handle difficult conversations.

• Explain Performance Metrics: Clearly explain the metrics against which employees are assessed and provide regular feedback to avoid surprises at the end of the performance year.

• Promote Genuine Self Awareness in Communication: Encourage all employees to be aware of how their comments may be perceived and to avoid making remarks that could be construed as discriminatory.

• Document Interactions: Maintain authentic documentation of all interactions with employees, especially those involving complaints or grievances (emails, file notes or even day book entries are more often more effective than formal letters and appraisal documents in achieving “results with respect”).

• Support for Accused Employees: Provide support and resources for employees who are accused of misconduct to ensure they can respond appropriately and professionally.

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