Bullying or Reasonable Management Action?

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 states:

"(1) A worker is bullied at work if: (a) while the worker is at work in a constitutionally-covered business: (i) an individual; or (ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and (b) 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.

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.

Note 1

The Fair Work Commission website has easy to read, useful information on this topic at https://www.fwc.gov.au/issues-we-help/bullying/what-bullying-work/about-reasonable-management-action

Note 2.

A constitutionally covered business is defined by the Fair Work Commission as: "... a proprietary limited company, a foreign corporation, a trading or financial corporation formed within the limits of the Commonwealth, the Commonwealth, the Commonwealth authority, a body corporate incorporated in a territory, a business or organisation conducted principally in a territory or Commonwealth place. It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial."

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066

Weekly WHS Article 7th December 2022