What isn’t workplace bullying?
What is a reasonable management action?
Reasonable management action carried out in a reasonable way is not bullying, this means:
- The behaviour must be management action ;
- It must be reasonable for the management action to be taken, and
- The management action must be carried out in a manner that is reasonable.
The following are examples of what may constitute management action:
- Performance appraisals.
- Ongoing meetings to address underperformance.
- Counselling or disciplining an employee for misconduct.
- Modifying an employee’s duties including transferring or redeploying the employee.
- Investigating alleged misconduct.
- Denying an employee a benefit in relation to their employment
- Refusing an employee permission to return to work due to a medical condition.
(Benchbook Anti-bullying, FWC, Jan 2014)
Managers and supervisors have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to effectively direct and control the way work is carried out, respond to poor performance and, if necessary, take disciplinary action. In doing so, managers and supervisors are not ‘bullying’, but undertaking their roles through reasonable ‘lawful’ direction of employees’ performance.
For example, it is reasonable for employers to allocate work, and for managers and supervisors to give fair and constructive feedback on an employee’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the situation.
When is management action reasonable?
Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time, including:
- The circumstances that led to and created the need for the management action to be taken
- The circumstances while the management action was being taken, and
- The consequences that flowed from the management action.
This covers the specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved.
The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general:
- Management actions do not need to be perfect or ideal to be considered reasonable
- a course of action may still be ‘reasonable action’ even if particular steps are not
- Any ‘unreasonableness’ must arise from the actual management action in question, rather than the worker’s perception of it, and
- Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departurewas reasonable in the circumstances.
At the very least, to be considered reasonable, the action must be lawful and must not be ‘irrational, absurd or ridiculous’.
What is a reasonable manner?
For the exemption in s.789FD(2) to apply, the management action must be carried out in a ‘reasonable manner’.
As above, what is ‘reasonable’ is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.(87)
This may include consideration of, for example:
- the particular circumstances of the individual involved
- whether anything should have prompted a simple inquiry to uncover further circumstances
- whether established policies or procedures were followed, and
- whether any investigations were carried out in a timely manner.
However the impact on the employee cannot by itself establish whether or not the management action was carried out in a reasonable manner, and some degree of humiliation may often be the consequence of a manager exercising his or her legitimate authority at work.
View full benchbook for relevant caselaw examples.