The rise of workplace bullying, unfair dismissal and general protections claims in the Fair Work Commission is not surprising considering the current economic and business climate. Managers and supervisors gaining an understanding of what is reasonable management action done in a reasonable way must be learned and trained – organisations and employers need to seriously and genuinely consider the nature of what is asked of them when it comes to reasonable management action.
What is reasonable management action?
There is an express acknowledgement by the Fair Work Commission and the legislation that steps need to be taken to ensure a business runs effectively and productivity continues.
There must be some line of cause and effect between conduct, behaviour and performance of an employee with the relevant management action and the management action taken is a reasonable and proportionate response.
Some examples of reasonable management action include:
- Providing constructive feedback on performance
- Informing a worker about work that is unsatisfactory
- Letting an employee know about behaviour that is inappropriate workplace behaviour
- Allocating work to an employee and controlling and directing how it needs to be carried out
- Placing an employee on a performance improvement plan
- Modifying an employee’s duties
- Redeploying an employee
- Expecting employees to obtain workplace goals and maintain workplace standards
- Requesting an independent medical examination for an employee to assess whether they’re physically fit to fulfil the requirements of the role
It does not have to be perfect
The Tribunal and Courts have recognised that management action does not need to be perfect to be considered reasonable.
In the Fair Work Commission stop workplace bullying case of Rohit  FWC 5881 (9 November 2020) the managers of Toll Transport had to defend certain action they took against an employee. Namely the following actions were deemed to be inappropriate:
- Video footage of a car accident was reviewed in an open plan office setting where other workers could view the accident; and
- A Manager inappropriately brought up the family situation of the employee and that it would be “ok” if he didn’t see his wife for three days
Although the instances were deemed inappropriate it did not constitute workplace bullying.
It is quite clear that the Fair Work Commission will give managers and supervisors rope to consider reasonable action taken. However, embarrassing, belittling behaviour and a lack of adherence to procedural fairness and natural justice will be frowned upon and even to the extent of considering it bullying behaviour.
It can also lead to claims in:
- Human rights complaints
- General protections claims
- Unfair dismissal claims
- Constructive dismissal
- Workplace health and safety breaches
- Workplace bullying
Training and education for managers managing people is integral more than ever.
Considering running training for your supervisors and managers? NB Lawyers – lawyers for employers run specific and tailor made training sessions for managers and supervisors give NB Lawyers – Lawyers for Employers a call and we can offer an obligation free consultation. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.