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When is bullying reasonable management action under the Fair Work Act 2009?

23 September 2014

Bullying2 

 

More employers need to include examples of the type of behaviour that does NOT constitute bullying in their policies to better educate their workforce.  This recent case demonstrates this:

What is "bullying" and "reasonable management action" under the Fair Work Act 2009?

"Bullying" is:

  • repeated behaviour;
  • unreasonable behaviour; and
  • behaviour that can cause a risk to health and safety.

 

"Reasonable management action" is:

  • management action;
  • that was reasonable to have been taken; and
  • carried out in a manner that is reasonable.

 

Facts from Case A

Ms SB, a manager, applied for an order to stop bullying with the Fair Work Commission. An employee made a bullying complaint against SB, which was found to be unsubstantiated. A further complaint made by another employee was investigated and found to be partially substantiated and unsubstantial by external investigation. SB's bullying complaint against the second employee was found to be unsubstantiated.

 

SB made the bullying application with the Commission on the basis that she believed the employer accepted two complaints against her, failed to take action to prevent similar conduct in the future, that there was ongoing rumours and lack of support and that she was harassed on a daily basis by the person she made a complaint about.

 

The employer claimed that it had taken reasonable management action in a reasonable manner.

 

The Fair Work Commissioner stated that things that could be unreasonable include vexatious claims, rumours and conducting an investigation in a grossly unfair manner. However, the Commissioner found that investigating the complaints was the only course of action that was reasonable and prudent. The Commissioner also wasn't persuaded that there was bullying and the case was dismissed.

 

Other things of note from the case

This case demonstrates that employers should be proactive in providing support in a timely manner and that the management action needs to be 'unreasonable' not bordering on 'unreasonable'.

 

Facts from Case B

In The Applicant v General Manager and Company C [2014] FWC 3940, the employee claimed that she experienced bullying by her General Manager including that he used aggressive tones, questioned her decisions, undermined her, shouted at her and belittled her.

 

The employee made a complaint to the Fair Work Commission who found that the behaviour was reasonable management action carried out in a reasonable manner and that the only instance of unreasonable behaviour was when the General Manager failed to properly respond to her request for a support person. Essentially the refusal was reasonable, but the action wasn't carried out in a reasonable manner. However, that was only one isolated event and could not be classified as bullying.

 

What should you take away from the above cases?

When deciding whether the action is reasonable management action you need to consider:

  • What the action is;
  • How the action came about;
  • How the action was carried out; and
  • The way in which the action affects a worker.

 

Furthermore, bullying needs to be repeated, not an isolated event.

 

Remember, management action doesn't have to be perfect to be reasonable. Strong policies with workplace bullying and dispute resolution will help in demonstrating reasonable management action under the Fair Work Act 2009.

 

How HR Business Solutions can help

Our IR Consultants are happy to have a chat with you about your legal obligations under the Fair Work Act on 3832 5665 or email info@hrbs.com.au.

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