Across all Australian workplaces the phenomenon of bullying is without doubt a front-and-centre topic. And as a result, overt instances of bullying in the workplace now tend to be more readily identified than ever before.

One challenging idea for all concerned however is this; is it possible that management action that is entirely reasonable could be misconstrued by a worker as an act of bullying? In both workers’ compensation matters and industrial relations more broadly, the linked concepts of ‘reasonable management action’ carried out in a ‘reasonable manner’ have certainly been difficult to pin down.

We take this opportunity to explore the complex concept of reasonableness as it related specifically to management action and workplace bullying.

Workplace bullying - the basics

When proposals arose to include bullying within Fair Work’s mandate, employers were understandably uncertain. ‘Bullying’ has a very broad and subjective interpretation among the general public; surely one person’s harmless banter could be another person’s bullying?

Yet when changes to the Fair Work Act were made and the commission explained the new initiative to stakeholders, it was clear that the definition under 789FD(1)contained certain helpful boundaries. Significantly, the unreasonable behaviour needed to be repeated and not just a one-off incident. Further, the activity needed to cause a demonstrable risk to workplace health and safety. The description of particular unacceptable behaviours – such as belittling, humiliating, spreading rumours and having unrealistic expectations – also went some way to assisting employers in the creation of sound anti-bullying mechanisms.

Reasonable management action…

Yet what about business-as-usual management? – for example when a worker needs constant reminders and oversight by management in order to fulfil their role? Could this type of standard management action actually be construed as ‘bullying’?

The commission foresaw this potential for definitional constraints to disrupt the operational needs of many businesses. Consequently, garden-variety management action such as performance management, work monitoring, instruction, direction and disciplinary action are generally outside of the definition of bullying. These actions are simply the core of most management roles. However, the analysis doesn’t end there.

Carried out in a reasonable manner

A full understanding of the interplay between alleged bullying and reasonable management action requires that employers be aware of the crucial third element of the equation – was the reasonable management action carried out in a reasonable manner? This might seem like splitting definitional hairs, but it is this particular nuance that sometimes gets overlooked. Let’s take an example:

The employer receives notification of a bullying claim from the FWC, made against a manager by a worker. The action in question appears to be quite reasonable management action – let’s say a routine performance management process has been commenced. HR assisted with documentation and there was clear objective evidence of the worker’s underperformance. This was clearly – in and of itself – reasonable management action on the part of the manager.

However, what can lead to difficulties for any employer is when the management action is not carried out in a reasonable manner. If the manner is found to be oppressive, aggressive, belittling and/or with completely unrelenting expectations regarding outputs – then there is a high likelihood that a bullying claim can be substantiated. In other words, all the good work involved in reasonable management action can come undone if it is administered in a bullying manner.

Train for reasonable management action

Most employers have become adept at the creation of healthy and safe workplaces. Layout and resource issues are quickly dealt with and the corporate culture is usually a point of workplace pride.

It pays however to ensure that the less-obvious hazards are still kept in focus. While employees might generally be monitored to prevent bullying issues, it is the manner in which managers carry on their tasks that also has ramifications for employers.

Our consultants have over 10 years of experience in determining what is and what is not ‘reasonable management action’ so if you have a matter where you need clarification or an investigation, talk to one of our consultants for advice on 1300 580 685.

If you think your managers could benefit from toolbox training on successful performance management, managing bullying complaints or ‘bullying, harassment and discrimination’ awareness, talk to one of our training consultants about our HR Pop-Up Professional Development initiatives and toolbox training.

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Comment by Bernard Keith Althofer on February 10, 2017 at 10:54

Since first becoming involved in the provision of advice, guidance and support in relation to the prevention, detection, reporting and resolution of counterproductive behaviours such as bullying and harassment, I have formed the view that the two key contributing factors that lead to inquiries, allegations and even complaints, involve management practices and communication.

Invariably the two factors are intertwined e.g. an organisation has well defined policies and procedures and teh communication styles and practices are such that individuals perceive that they are being treated unreasonably, unjustly or unfairly.

In terms of reasonable management, it does seem that every incident and allegation has to be assessed according to the merits involved.  In addition, the assessment might take into consideration patterns of behaviours, frequency/severity and action taken, and those involved. 

In earlier days, some organisations would ensure that there was discussion around the 'reasonable person test'.  For example, an organisation might indicate that the term 'reasonable person' means an ordinary person, possessed of such powers of self control as everyone is entitled to expect that their fellow citizens will exercise in society. The policy might also expand to include circumstances that could be considered andinclude:

  • —The position, rank, level of authority/influence of the alleged bully in relation to the other person
  • —Relationship between the bully and the other person
  • —The sex, physical size, strength or age of the bully relative to the other person
  • —Any impairment (physical or otherwise) that the other person has
  • —The frequency/severity/repetitiveness of the conduct
  • —The availability of workplace policies/procedures/standards on workplace conduct (e.g. code of conduct)
Individual perceptions and beliefs about what is and what is not reasonable management can depend on numerous variables e.g. induction/introduction to an organisation, work/life experiences, workplace culture and practices, individual personality and responsiveness, willingness and understanding of the need to follow work instructions and take direction, understanding of how individual contributions link to other workplace deliverables, working in toxic situations with demanding personnel, internal and external environment pressures or demands, skill sets and ability to manage adverse conflict, organisational codes of conduct or legislative requirements to follow directions (e.g. in command and control organisations).
Whilst current 'requirements' place an emphasis on repeated behaviour, there may at times be circumstances or situations where an individual act could be defined as 'unreasonable management action'.
For individuals and organisation, the need to maintain accuracy in documentation processes particularly when it is believed or reasonably suspected that all allegation may be made.  It does seem that a number people have concerns about performance management processes, and yet it seems that from my experience, their complaints of bullying have been more about how the process was administered e.g. favouritism, lack of fairness and equity, failure to deliver, being set up to fail.
It seems that managers and workers are increasing pressure to deliver outcomes, and in doing so, time required to spend on 'soft issues' such as performance management, coaching, communicating and collaboratiion are reduced.  In addition, induction programs may in some cases, 'gloss' over organisational policies and procedures regarding giving and responding to directions by a manager or supervisor.
In some cases, managers and workers may be well intentioned in what they communicate,  The problem arises when the communication is perceived as unreasonable, aggressive, lacking compassion or empathy, is overly directive or even demeaning.
Over the years, I have been made aware of situations where managers and workers have been caught in the complex web of 'unreasonable management actions.  For example, a manager asked a worker "As a matter of interest, what do you have on next week?" The worker perceived they had been singled out and treated unfairly, made a complaint and the actions of the manager were found to be unreasonable.  When the decision maker was provided with the facts, it was obvious that the worker and those who supported the worker, had presented a one sided case to target the manager.  In another case, a new orderly was asked to 'be quicker in bringing the beds around'.  The orderly believed this was an unreasonable direction and left.  In reality, beds were need for patients so operations could be conducted.  The solution might have been to provide the orderly with a more detailed explanation as to why the beds were needed and the importance of them being in place on time.
Other situations that have crossed my path include "I have been bullied, my boss looked sideways at me when he came in" (No other behaviours or conduct were involved); "My manager wants me to do performance management, he can't force me, he is bullying me" (in reality, the worker had not read the organisation policy, the manager had not explained it, and the worker 'failed to remember it had been covered in the induction program'; "The manager has sexually harassed me". (The resulting investigation determined that no sexual harassment had occurred, the manager had been acting reasonably in trying to get the worker to achieve specific outcomes, and the reason for the complaint - the worker knew that by making a complaint they would be transferred and they ended up in a location they really wanted.
Reasonable management actions on the face of it may appear to be fairly simple. It is important to remember that it is not workplace bullying for managers to manage legitimately.

Workplace bullying is an unacceptable abuse of power in the workplace. It has a significant adverse effect on both the workplace generally and especially for target/aggrieved persons.

This was recognised by District Court Judge Dodds in Carlile v. Council of the Shire of Kilkevin and Brietkreutz (1997) where he stated:

  • In today's Australian community it is not acceptable (if it ever was) for a person in authority over another in a work place to harass, belittle or demean that other as a means of  enforcing...authority or relieving... frustration. District Court Judge Dodds in Carlile v. Council of the Shire of Kilkevin and Brietkreutz (1997)

Whereas this opinion is obviously directed to a supervisor/subordinate relationship, matters of workplace bullying are not limited as such.  Organisations should take the stance that irrespective of the type of relationship, workplace bullying is not acceptable behaviour and will not be tolerated.

It is within the role of a manager or even line supervisor to ensure that performance management processes are conducted, and it is a legitimate action to provide timely feedback on performance.  It is important that those involved in the performance management process apply the organisational HR policy in relation to the process.  Decisions made in relation to performance management can result in Industrial Action, and may leave the organisation and individuals open to penalties being imposed.

CEO’s generally have an expectation that manager’s manage, and supervisors supervise.  Sometimes, they have to make tough decisions regarding an individual and there is an expectation that natural justice and procedural fairness be applied at all times.

Reasonable management actions can be a contentious issue for some people.  It is important for officers and workers to ensure that these concepts are documented and communicated across the organisation.  Having a good understanding about the role and functions, accountabilities and authorities can help reduce any perceptions about the rights of managers to manage.

Workplace bullying is not and must not be confused with legitimate comment and advice (including negative comment and feedback given appropriately) by managers and supervisors on the work performance or work related behaviour of an individual or group.

Workplace bullying should not be confused with the ability of a manager or supervisor to manage legitimately.  Workplace bullying does not include:

  • reasonable management action taken in a reasonable way by the chief executive in connection with the person’s employment
  • giving orders and directions to staff under their control and using their authority

It is not workplace bullying for managers to manage legitimately.

Whilst presentations and various training process e.g. online, self paced training packages may cover the prevention, detection, reporting and resolution of bullying etc, it appears that managers and workers would benefit by having greater and more detailed exposure to reasonable management actions.  In recent times, I reviewed a self paced training package for a SME, and there was no mention of reasonable management actions.

From time to time, managers (at any level of an organisation) may be confronted be confronted with a worker who says "You can't make me do that, you are picking on me".  A manager needs to be able to explain why their actions are reasonable and are being provided in a reasonable manner.  Yelling and shouting, demanding and blustering behaviours without any semblance of respect and dignity will only lead to negative conflict and allegations. The reason why performance management processes can 'blow up' and be perceived as 'unreasonable management actions being conducted in an unreasonable way' lies mainly in how the process is implemented e.g. short cuts, 'directed completion', 'once a year' review', 'surprises', being used adversely, lack of consistency, lack of follow through on agreed standards or results to be achieved, and failure to provide e.g. non delivery of learning and development needs that have been identified and documented.

The good news is that some workers are now recognising that unreasonable management is occurring not by their line manager or supervisor, but by others in the organisation, are documenting this in performance management processes, because organisation responses to past reports have fallen on 'deaf ears'.

The bad news for organisations is that when a number of workers commence using the performance management process to raise concerns about unreasonable management or 'demands' and 'objectionable behaviour', the organisation will be forced to take action to address the behaviour, and a failure to do so, may result in additional action being taken by the workers.

Just as workplaces to provide educational and awarnesss processes in relation to various counterproductive workplace behaviours, they also needs to ensure that managers and workers know and understand what is and what is not reasonable management action, and how these actions can be delivered in a reasonable manner.

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