Employers, managers and supervisors, are you up to the "reasonableness" challenge? You need to be, because this will be another measuring stick by which your actions towards employees will be assessed.
The first week in June 2013 saw the release of the revised draft Code of Practice, Preventing and Responding to Workplace Bullying. Three days later, the Fair Work Amendment Bill 2013 passed the House of Representatives, with its new bullying regime set to become law and commence on 1 January 2014.
In our March bulletin, Fighting bullying ... a double-edged sword?, we examined the new bullying regime for the Fair Work Act 2009 and identified significant issues for employers under the new regime.
We now examine the draft Code and delve into the challenges presented for employers and managers.
The draft Code
The draft Code will be made under the Work Health and Safety Act 2011, and will be admissible as evidence against a business that does not comply with its guidance.
The draft Code defines workplace bullying as:
repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
Rather usefully, the Code explores the definition of bullying in more detail:
Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.
Unreasonable behaviour means behaviour that a reasonable person, having regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.
These definitions appear to add some objectivity to determining if behaviour is bullying.
The draft Code then gives examples of what may be bullying. The behaviour can be intentional or unintentional, must be repeated and unreasonable, and could include:
- unjustified criticism or complaints;
- continuously and deliberately excluding someone from workplace activities;
- withholding information that is vital for effective work performance;
- setting unreasonable timelines or constantly changing deadlines;
- setting tasks that are unreasonably below or beyond a person’s skill level;
- changing work arrangements to deliberately inconvenience the worker; or
- excessive scrutiny at work.
Importantly, the Code excludes from the definition of bullying reasonable management action taken in a reasonable way. The Code says "these actions are usually not considered to be bullying if they are carried out in a reasonable manner, taking the particular circumstances into account".
The issue becomes, however, if management action is not reasonable or is not implemented in a reasonable way, is the action automatically bullying? A client may alter deadlines on a project, there may be a hold-up in the supply chain, or a missed deadline may leave a business facing a penalty; and events of this type may place undue stress on the business and its employees. There may be other factors requiring the need for some toughness.
Not all unreasonable management action will be bullying. Indeed, that must be the case. As the examples of bullying try to demonstrate, the actions complained about are only bullying if the actions are repeated and unreasonable such as to create a risk to safety.
Interestingly, the draft Code provides that low level workplace conflict is generally not considered to be workplace bullying as not all conflicts or disagreements have negative health effects. The proposed Workplace Bullying – a Workers Guide provides:
Poor management practices on their own may not equate to bullying...
A guide for workers
The Workplace Bullying – a Workers Guide seeks to encourage employees to document their experiences in a diary, seek advice early, and to speak to the alleged "bully" or management.
Open communication may result in quick resolution, modification of behaviours and no misunderstandings.
The application of the concept of reasonableness can result in differing views, as the recent case of Comcare v Martinez (No 2)  FCA 439 illustrates.
In that case, the Tribunal found it was bullying (unreasonable management action) to have meetings in a closed room with an employee about their underperformance.
In contrast the Federal Court said, in the context of continuing underperformance, it was reasonable to formalise the management process even if the employee was humiliated by meeting in a closed room. The Court said:
... some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work
A manager may take action in different ways. A better way of doing something doesn't mean the method used was unreasonable. Reasonableness will depend on all the circumstances. The test is not whether things could have been done more reasonably.
The challenge for business is to minimise the risk of bullying (and the perception of bullying) at the workplace.
To answer this challenge requires business to develop robust and sophisticated policies and practices to eliminate workplace bullying supported by specific and routine training for employees and management.
A trained and educated workforce should eliminate claims rather than result in claims.
Managers are at risk of being found to bully at work, even inadvertently, if their management actions are not assessed as reasonable. So how do managers (and the business) best protect themselves?
Ultimately, the issue is one of moderating management styles, adopting open communication techniques and being receptive to feedback.
Employees also need to communicate to avoid festering discontent and misunderstandings.
A bit like a marriage? Maybe employment is a personal relationship after all. Having a good personal relationship does require hard work and it is rewarding when you get it right!