Commissioner Lewin of the Fair Work Commission recently provided some further clarity on what the Commission will consider to be reasonable management action within the bullying jurisdiction.1
Mr Willis alleged that he had been bullied at work and sought an anti-bullying order under the Fair Work Act 2009. Mr Willis’ employer, Capital Radiology, argued that action it took was not bullying, rather it was properly characterised as ‘reasonable management action carried out in a reasonable manner’
A number of witnesses on behalf of Capital Radiology gave evidence as to the reasons for and nature of the disciplinary action taken against Mr Willis. As the bullying application was brought prior to all the evidence led in Mr Willis’ bullying claim, the onus was on the employer to show that it had engaged in reasonable management action.
On the basis of the available evidence, it appeared that Mr Willis had complained about the conduct of some of his colleagues and also about certain work practices at the clinic where he worked. Ms Carroll, the HR Manager, was of the view that these complaints were inappropriate. It was this behaviour which led to disciplinary action being taken against Mr Willis.
Commissioner Lewin did not accept Capital Radiology’s argument. He found that for the relevant management action to be reasonable, ‘there must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action, and the management action is a reasonable and proportionate response to the attributes of the employee to which it was directed. In this case, the action taken against Mr Willis was ‘disciplinary action’.
Ultimately, the Commissioner was not satisfied on the evidence before him that there was a reasonable basis for the disciplinary action taken against Mr Willis. He noted that whilst it may have been appropriate and reasonable in the circumstances for the employer to have undertaken a performance management process to deal with the issues arising from Mr Willis’ conduct, disciplinary action was not warranted in the circumstances - especially taking into account the fact that he was a relatively new employee. This was particularly so because the disciplinary action taken could have ultimately led to the termination of Mr Willis’ employment.
Commissioner Lewin also noted that the employer in this case was partly led into error because of the conflation both in its policies and in its actions between performance management and disciplinary action. Whilst performance management may have been appropriate and reasonable in the circumstances, it was held that disciplinary action was not.
Bottom line for employers
- Commissioner Lewin’s comment is apt: ‘Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.’
- Before taking disciplinary action against an employee, consider whether the employee’s conduct or behaviour is sufficiently serious or whether a different approach, namely a performance management approach, is more appropriate.
- Make sure that your policies clearly distinguish between disciplinary and performance management processes.
Employers should be aware that because this case was dealt with as a jurisdictional objection, Commissioner Lewin did not made any finding as to whether Mr Willis had in fact been subjected to bullying conduct.