Bullying or Reasonable Management Action?

Weekly WHS Article 7th December 2022

At some point, an employer may need to manage an underperforming staff member. However, care needs to be taken to avoid bullying a staff member within the meaning of s789FD (1) of the Fair Work Act 2009 which tells us that a worker is bullied if an individual or a group of individuals repeatedly behaves unreasonably towards that worker or a group of workers that the worker is a member of, and that behaviour creates a risk to health and safety.

S789FD (2) of the Fair Work Act 2009 specifically points out that ‘reasonable management action carried out in a reasonable manner’ is not bullying.

It is reasonable management action for a manager to require an employee to do their job and carry out their duties and responsibilities. “The way the employer takes these actions must also be ‘reasonable’. If they are not reasonable, and they are repeated, these actions could still be bullying.” (see Note 1 below}

In some businesses, leaders may be driven by their concerns to protect themselves from bullying or other psychosocial accusations. They start documenting everything, getting lawyers involved in contracts, tip-toeing around employees, putting up with poor performance and increasing their own workload or the workloads of those employees who are high performers. What this can do is cause mistrust between management and workers and the general workplace culture can sour. The extra workload on those who are performing can lead to psychosocial risks and hazards and therefore fall under the risk management requirements of the WHS Act and WHS Regulation.

In a number of recent cases such as Scott v Vita People Pty Ltd, Josie Williams [2022] FWC 24 (10 January 2022), the Fair Work Commission established that any perceptions of the employee that actions taken by management were “bullying” will be fully defended if the employer can show they were reasonable management actions.

Examples of reasonable management actions include:

Performance Improvement Programs
Reasonable and lawful directions
Requiring an employee to undertake inherent requirements of their role
Performance appraisals
Requiring an employee to comply with a policy
Requiring an employee to provide reports on tasks and targets
Requiring an employee to undertake a task or job which is part and parcel of their role
Scheduling regular meetings to discuss ongoing performance issues
Disciplining an employee for identified misconduct
Undertaking an investigation into a complaint
Modifying a worker’s duties as required by operational reasons or the employee’s health.

In the Scott v Vita People Pty Ltd, Josie Williams case, Commissioner Hunt of the Fair Work Commission, stated that a performance improvement program is a ‘remedial activity’ rather than a form of disciplinary action.

After hearing the case Commissioner Hunt determined that the various events and actions taken by the employer were not unreasonable and the case was ruled in favour of the employer.