When determining what led to a certain set of events or making an important decision, it is essential for investigators and decision makers to have regard to an objective standard.
In trying to get to the bottom of a situation or establishing an appropriate course of action, relying on the 'reasonable person' ensures that a broader perspective is taken.
We look at exactly what this involves and how it can assist in achieving a fair and balanced outcome.
In Australian law, the reasonable person has been characterised as "the man on the Bondi tram" - an average member of society, who has various generalised attributes including risk aversion, sound judgment and a sense of self-preservation, which prevents them from walking blindly into danger.
This reasonable person standard can be used to put a situation in context and to ensure that the decision maker does not rely on his own, perhaps limited or skewed, perspective.
In a workplace investigation, taking the reasonable person test into account will assist an investigator in determining whether a respondent's conduct is reasonable or appropriate in the specific circumstances, and whether the complainant is being reasonable in their response or in feeling affronted or aggrieved.
One circumstance in which the reasonable person test was applied was in the Fair Work Commission's judgment in CFMEU v MSS Strategic Medical Pty Ltd; MSS Security Pty Ltd. In that case, the worker objected to the discipline imposed on her in relation to a number of performance issues, including:
Applying the reasonable person test, Commissioner Gregory found that the issues complained of were trivial, not worthy of discipline, and most importantly a reasonable person would not have responded with the same level of discipline in the same circumstances.
The reasonable person test has significant utility in the workplace context and it is important to remember that its application differs depending on the circumstances.
For example, the response of a 'reasonable person' in a Chief Surgeon's position to any given situation is likely to differ substantially to that of an Assistant in Nursing. The question is: What would a reasonable Chief Surgeon in those circumstances have done?
Similarly, higher standards of reasonable behaviour must necessarily be applied to those in more senior roles or with greater levels of responsibility.
When allegations of misconduct arise, the possibilities for distress to workers are extensive.
If you are conducting an investigation, are unsure of what standard to apply, and are hoping to avoid a costly mistake, contact WISE today. We can conduct a full investigation or alternatively support your organisation in the investigation process.
WISE Workplace is a multidisciplinary organisation specialising in the management of workplace behaviour. We investigate matters of corporate and professional misconduct, resolve conflict through mediation and provide consultation services for developing effective people governance.
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