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When does management action become bullying? – Employee Rights/ Labour Relations



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The Fair Work Act (the Act) defines workplace bullying as
repeated unreasonable behaviour from an individual or group towards
another individual that creates a risk to their health and
safety.

Many resources for employees suggest the first course of action
when being bullied is to notify a supervisor, manager, or business
owner so they can investigate or step in. But what if the repeated
behaviour is coming from a manager or business owner?

Section 789FD (2) of the Act states that behaviour towards a
worker or group of workers will not be considered bullying if it
is reasonable management action carried out
in a reasonable manner

What is Management action?

Management action is usually taken to address issues with an
employee’s conduct or performance and could include performance
appraisals, meetings to address underperformance, investigating
alleged misconduct, or disciplining a worker for misconduct.

Essentially, employers have rights and obligations to take
appropriate management action and make management decisions when
employees are underperforming or where disciplinary action is
necessary.

For example, it is reasonable for employers to allocate work and
managers and supervisors to give constructive feedback on
performance. These actions are not considered bullying if they are
carried out in a reasonable manner that takes into account the
circumstances and does not leave the employee feeling targeted or
humiliated.

An informal or spontaneous conversation between a manager and a
worker may not be viewed as management action, even if issues such
as performance or conduct are raised.

When is management action reasonable?

Determining whether management action is reasonable requires an
objective assessment of:

  • the circumstances that led to and created the need for
    management action

  • the circumstances while the management action was being
    taken

  • the consequences that flowed from the management action.

The test is whether the management action was reasonable and
lawful, not whether it could have been undertaken in a way that was
‘more reasonable’ or ‘more acceptable’.

It is important to note that any unreasonableness must arise
from the actual management action in question, not the
employee’s perception of it.

If an employee is underperforming in their role, meetings to
address underperformance would likely be reasonable whereas
standing over an employee’s shoulder for regular or extended
periods to observe their work would likely be considered
unreasonable management action by the Fair Work Commission.

What is a reasonable manner?

For the exemption in the Act to apply, the management action
must be carried out in a reasonable manner. While an employee may
feel humiliated by a manager exercising their legitimate authority,
the impact on the employee cannot by itself establish whether the
management action was conducted in a reasonable manner.

Whether the management action was taken in a reasonable manner
will depend on the action, the facts and circumstances that led to
the requirement for action, the way it affects the worker and the
circumstances in which the action was implemented, as well as any
other relevant matters.

For example, in the stop bullying application of
Ms A [2018] FWC 4147
, Ms A complained of bullying conduct
consisting of excessive emails sent continuously by her employer
and their content. The Commission accepted that while many of the
issues raised by Ms A’s employer in the emails were reasonable,
the manner, frequency and timing of the emails did not constitute
reasonable management action.

The intention of management action should be to improve work
performance, not as a tool to target or dismiss an employee. If you
believe you have been targeted by unreasonable management action,
seeking advice from an employment lawyer is recommended.

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