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Bullying and Reasonable Management Action
The majority (72.2%) of all the antibullying applications to the Fair Work Commission in the first 3 months of 2014 were about bullying by Managers.
Such a high percentage does highlight the need to ensure that Managers are well informed and trained about workplace bullying.
For example Managers, need to know that “reasonable management action carried out in a reasonable manner” is not bullying (section 789FD of the Fair Work Act 2009).
But what does “reasonable management action carried out in a reasonable manner” mean? The Fair Work Commission bullying decision on the 13th of May in the case Ms SB (2014) FWC 2104, provides some guidance that clarifies this area.
The key points considered in the judgement made by Fair Work Commissioner Hampton were;
Repeated Unreasonable Behaviour
To qualify as ‘repeated unreasonable behaviour’ more than one incident of unreasonable behaviour must have occurred and does not have to be the same specific behaviour but could be a range of behaviours over time
Reasonable Management Action
Management action means “everyday actions to effectively direct and control the way work is carried out”
The reasonableness of management action has to be assessed objectively based on the context of the circumstances and knowledge of those involved at the time
In testing for the reasonableness of an action, the ‘actual’ action needs to be considered, rather than how the person making the bullying complaint perceives the action
Management actions do not need to be perfect or ideal to be considered reasonable
A management action is not unreasonable just because the management action could have been undertaken in a manner that was "more reasonable" or "more acceptable"
A course of action may still be 'reasonable' even if particular steps are not taken
To be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous'
Management action should be in accordance with established policies and procedures unless it is reasonable to depart from them
The full decision of Commissioner Hampton is available from the Fair Work