Workplace Management Curve Ball No 4: The employee says – “You are bullying me”

Allegations made by an employee of workplace bullying are to be treated seriously, as a worker that is ‘bullied at work’ has a right to pursue a claim under s 789FD of the Fair Work Act 2009.

‘Bullying’ of a worker under the Fair Work Act consists of the following elements:

• Repeated unreasonable behaviour towards a worker;

• The unreasonable behaviour must occur while the worker is at work;

• The worker must work for a ‘constitutionally-covered business’; and

• The unreasonable behaviour creates a risk to health and safety.

However, ‘reasonable management action carried out in a reasonable manner’ will not be considered bullying (s 789FD(2) Fair Work Act 2009).

‘Reasonable management action’ under the Fair Work Act is defined as:

• Management action;

• That was reasonable for management to have taken; and

• That was carried out in a reasonable manner.[1]

The management action will be considered ‘reasonable’ if it is lawful and not ‘irrational, absurd or ridiculous’.[2] The reasonable action does not have to be ‘perfect or ideal’.[3]

Management Action

Recent cases have highlighted that ‘management action’ is to be given a wide meaning, as it appears that the reasonable management action provision in the Act is intended to protect the ‘everyday actions’ of management that are necessary ‘to effectively direct and control the way work is carried out’.[4]

Examples of management action may include:

• Implementing processes for managing workplace performance;

• Raising issues with employees in regards to workplace performance; and

• Taking disciplinary action for misconduct by an employee.

Action Taken by Management was Reasonable

Determining whether management was ‘reasonable’ involves an objective assessment of the action taken by management in the context of the surrounding circumstances and knowledge of those involved at the time.[5]

The considerations likely to be considered in making this assessment include:

• The circumstances that led to the need for the management action to be taken;

• The circumstances that existed while the management action was being carried out;

• The consequences following the management action; and

• The specific attributes and circumstances of the situation, including the emotional and psychological health of the worker involved.[6]

Action Taken by Management was Carried Out in a Reasonable Manner

Whether the management action was carried out in a ‘reasonable manner’ will also be a question of fact and involve an objective assessment.[7]

The test will likely take into account:

• The facts and circumstances giving rise to the requirement for action;

• The way in which the action impacts the worker;

• The circumstances in which the action was implemented; and

• Any other relevant matters.[8]

Examples from recent cases highlighting what will likely be considered to be reasonable management action

YH v Centre and Others [2014] FWC 8905

YH claimed she was bullied by a supervisor and by the Director of the child care centre where she was employed as a child care worker. Amongst her bullying claims was that she was counselled and reprimanded by management for leaving portable steps in the toddler change room and for applying the wrong sunscreen to a child with skin sensitivities.

However, the Fair Work Commission held that it was ‘reasonable management action’ for YH to be counselled because of concerns that her work performance was unsatisfactory.[9] The Commission stated:

‘in a small workplace such as the Centre, there is no question that an apprehension of an employee not doing work considered important to do, or of someone considered to have not met the required standards of child supervision, must have those matters raised with them. Perhaps the interactions with Ms YH could have been undertaken better, however that is not the test which must be applied; rather the test is whether the management action was reasonable to be taken, and whether it was taken reasonably.’[10]

The Applicant v General Manager and Company C [2014] FWC 3940

The Applicant, a training manager employed by a major national listed company, claimed she was bullied by the company’s General Manager. Her claims of bullying behaviour against the General Manager included the use of an aggressive tone and behaving in an overbearing manner towards her in private meetings she had with him, and undermining the Applicant’s authority with the Training Department she managed.

In this case, the Commission held that the following actions constituted reasonable management action by the General Manager:

• Raising concerns about the failure of the Applicant to be forthcoming with information and participate in meetings.[11]

• Requiring the Applicant to engage in more frequent reporting.[12]

• Forcefully communicating, in both words and body language, that the way in which the Applicant was interacting with him was unacceptable and that it could not continue.[13]

• Making inquiries, without involving the Applicant, concerning the absence of a particular member of the Applicant’s team, as the General Manager had the overall responsibility for the performance of the Training Department that the Applicant managed.[14]

• Requesting information about the alleged unsatisfactory conduct of one of the members of the Training Department.[15]

However, the Commission did find that the General Manager’s failure to properly respond to the Applicant’s request for a support person at meetings with him was ‘unreasonable behaviour’ and not reasonable management action carried out in a reasonable manner.[16] 

What is particularly important to note from this case is the Commission’s recognition that ‘it is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger,’ and that this alone will often not constitute bullying behaviour.[17] However, if the General Manager displayed this angry behaviour on a repeated basis, this may cast a different light on the assessment as to whether he engaged in bullying behaviour and is likely to suggest that the worker was being bullied.[18]

What you should do when faced with this curve ball:

• Ask the employee to explain what they mean when they say that they feel they are being bullied.

• Explain that managing performance or conduct is part of an employer’s responsibilities and is likely to be considered reasonable management action, not bullying, even if the action is robust.

• Direct the employee to consult with Human Resources if they are considering lodging their grievance formally.

• Be wary that repeated aggressive behaviour towards an employee being counselled or disciplined might not be considered to be reasonable management action.

Citations

[1] Ms SB [2014] FWC 2104 [47].

[2] Ms SB [2014] FWC 2104 [51].

[3] Ms SB [2014] FWC 2104 [51].

[4] Ms SB [2014] FWC 2104 [48] cited in YH v Centre and Others [2014] FWC 8905 [7].

[5] Ms SB [2014] FWC 2104 [49]–[53] cited in YH v Centre and Others [2014] FWC 8905 [7].

[6] Ms SB [2014] FWC 2104 [50] cited in YH v Centre and Others [2014] FWC 8905 [7].

[7] Ms SB [2014] FWC 2104 [52].

[8] Ms SB [2014] FWC 2104 [53].

[9] YH v Centre and Others [2014] FWC 8905 [65], [66], [69].

[10] YH v Centre and Others [2014] FWC 8905 [61].

[11] The Applicant v General Manager and Company C [2014] FWC 3940 [60].

[12] The Applicant v General Manager and Company C [2014] FWC 3940 [60].

[13] The Applicant v General Manager and Company C [2014] FWC 3940 [65].

[14] The Applicant v General Manager and Company C [2014] FWC 3940 [68].

[15] The Applicant v General Manager and Company C [2014] FWC 3940 [69].

[16] The Applicant v General Manager and Company C [2014] FWC 3940 [95].

[17] The Applicant v General Manager and Company C [2014] FWC 3940 [65].

[18] The Applicant v General Manager and Company C [2014] FWC 3940 [65].

Author: Glen Bartlett