Following on from my last article - 'Why do managers get complaints?', do you know the difference between workplace bullying and reasonable management action.

This article goes into more detail about what the Fair Work Act says in s789FD(2) - ‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’ and how I as an investigator address this question when conducting investigations against managers.

When a bullying or harassment complaint is made against a manager it is important to consider if the behaviour of the manager was bullying or Reasonable Management Action.

The Fair Work Act s789FD (2) states that (link to FWA section)

‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’

This exclusion is comprised of three elements:

• The behaviour must be management action
• It must be reasonable for the management action to be taken, and
• The management action must be carried out in a manner that is reasonable

Management action can include but is not limited to;

* Managing and directing an employee
* Placing an employee on some form of performance improvement plan or program
* Conducting performance review with an employee
* Providing an employee with performance feedback
* Providing directions to an employee, especially via email

To make a determination on this allegation of bullying it necessary to examine the definition of reasonable management action in the Fair Work Act.

The first question to be examined,

“Is the behaviour a management action?”

The Fair Work Anti Bullying Bench book states, (link to Bench Book)

 “What is Management Action”    

“Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions.”

In the case of Re Ms SB [2014] FWC 2104 (link to case) , Commissioner Hampton at paragraph 48 stated,

“The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.”

A determination should be made, “is this a management action?”

The second question to be examined is,

“Was the management action reasonable?”

The Fair Work Anti Bullying Bench book states,

“Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time, including:

• the circumstances that led to and created the need for the management action to be taken
• the circumstances while the management action was being taken, and
• the consequences that flowed from the management action.”

In Re Ms SB [2014] FWC 2104 , Commissioner Hampton went on to say at paragraph 51,

“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.”

  A determination should be made, “is there a valid reason for the management action.”

The third question to be examined is,

“Was the management action carried out in a reasonable manner?”

The Fair Work Anti Bullying Bench book states,

“Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters, management actions do not need to be perfect or ideal to be considered reasonable.”

The behaviour of the manager needs to be analysed to determine is the management action was conducted in a reasonable manner.

Considerations are:

• The behaviour of the manager during the management action
• Communications
• Timing
• Listening to the response/s from the employee
• Affording the employee procedural fairness
• Considering all the options prior to dismissal
• Allowing the employee to have a support person in disciplinary matters

The Safe Work Australia Guide to preventing & responding to workplace bullying states, (Link here)

“Some people may also take offence at action taken by management, but that does not mean that the management action in itself was unreasonable.”

Help for employers and manager

As an employer or manager, if you need help understanding an applying reasonable management action, please contact us as we have two management training courses:

Management Essentials Covering – (Link to course)

• Reasonable management Action (RMA).
• Performance Management to avoid complaints.
• Basic Dispute Resolution Interventions
• Dealing with misconduct and complaint handling for managers

Workplace Essentials covering – (Link to course)

1. What is workplace in 2021 and what is workplace Misconduct
2. Understanding workplace bullying, harassment, discrimination and sexual harassment.
3. Reasonable management Action (RMA).
4. Performance Management to avoid proven complaints.