Boundaries Being Set to Bullying Claims

Ms SB [2014] FWC 2104 (12 May 2014)

When the new anti-bullying laws were introduced, employers were concerned about what exactly constitutes bullying. Now there is some guidance following the Fair Work Commission’s anti-bullying panel head’s decision where a manager claimed she had been bullied by colleagues.

This decision canvasses an important consideration; what constitutes “reasonable management action”, which is a defence under this legislation. The legislation uses this term but does not define it. The FWC decision goes some way towards doing so, as some reasonable, everyday management actions had been called into question when the legislation was passed.

FWC has outlined a number of attributes that employer action may have that would assist to determine if it was reasonable in the context of this legislation. In particular, FWC said that

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

In general terms this is likely to mean that:

–        management actions do not need to be perfect or ideal to be considered reasonable;

–        a course of action may still be ‘reasonable action’ even if particular steps are not;

–        to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;

–        any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and

–        consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”

The decision also referred to the fact that an employer has a right to carry out reasonable actions relating to managing staff, issues of poor performance and the like.

This decision is not the final word on this area of law however it is a useful guide to the approach FWC will likely take as it deals with applications from employees who claim they have been bullied at work.