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Workplace bullying and reasonable management action

Workplace bullying can be extremely serious and should not be tolerated by employers.

Workplace bullying can be extremely serious and should not be tolerated by employers.

Across Australia, employers are required to provide employees with a safe and healthy work environment, and genuine workplace bullying can put the health and safety of employees at risk. The anti-bullying jurisdiction of the Fair Work Commission (FWC) created by the Fair Work Act 2009 (Cth) (FW Act) is directed towards remedying real cases of workplace bullying by ordering that workplace bullying stop.

Unfortunately, there are some common misunderstandings about what is and what isn’t workplace bullying. Whilst the FW Act contains some reasonably clear language regarding what is and isn’t workplace bullying, the misunderstandings continue.

For example, employees often fail to appreciate that reasonable management action taken in a reasonable manner is not workplace bullying. That means that a manager’s conduct in directing work, raising work performance issues or resolving other work-related issues is not workplace bullying (provided the manager acts in a reasonable manner). A manager’s duties can involve difficult and sometimes unpleasant conversations or hard decisions - but these conversations or decisions do not amount to bullying under the FW Act simply because an employee does not agree with or like the outcome.

The FWC was recently required to decide an application for an order to stop workplace bullying made by a cleaner who alleged that she was bullied by her manager (N.B (Anonymised) [2019] FWC 5413).

In summary, the cleaner’s allegations of bullying were:

  • The cleaner verbally raised concerns about her employment and the performance of other employees with her manager. The manager discussed those concerns with the cleaner and they were largely resolved. Neither the cleaner nor the manager formally documented their discussion.
  • The cleaner was excluded from a Christmas lunch when she was asked to take her lunch break later due to a heavy workload on that day.
  • The cleaner was confused about whether she was allowed to take leave on a public holiday when her supervisor informed her that she was not. The cleaner made further enquiries with her manager who resolved the confusion and approved her leave on the public holiday in question.
  • The cleaner’s manager asked her about the dates of her leave in the presence of her supervisor.
  • The cleaner’s supervisor removed her from an assigned area to work in another area.

The cleaner’s employer denied her claims of bullying and submitted to the FWC that the conduct she complained of was reasonable management action taken in a reasonable manner.

The FWC agreed with the employer and held that the cleaner’s allegations did not amount to bullying. The FWC found that, where the cleaner raised concerns with her manager, those concerns were largely resolved. The FWC commented that:

There is no positive obligation on managers or employer[s] more broadly to formalise every discussion that employees have with them. To impose such an obligation is unnecessary and may actually preclude successful resolution from being achieved. (at [27])

The FWC held that the alleged bullying conduct was in fact reasonable management action taken in a reasonable manner, including the request to take a later lunch break on the day of the Christmas lunch and the direction to work in another area. The FWC acknowledged that there will be legitimate occasions in the ordinary course of business where rosters may need to be adjusted to take into account changing workloads – this was one of those occasions.

 

Lessons for employers

Under the FW Act, reasonable management action carried out in a reasonable manner does not amount to workplace bullying.

Employers should ensure, through an anti-bullying policy and training, that their employees understand the difference between bullying and reasonable management action. Further, clear communication with employees about their work arrangements and why certain decisions are made, can minimise the risk of misunderstandings.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

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