In the first substantive ruling under its new powers regarding workplace bullying, the Fair Work Commission has shed light on the definition of “bullying” and the concept of “reasonable management action”.

An employee alleged that she had been bullied by members of her team and her employer. The employee’s allegations came after two of her subordinates had made bullying allegations against her. The employer engaged a third party to conduct an investigation into the competing bullying claims and found one of the second subordinate’s claim to be substantiated in part. The employee alleged that the manner in which the employer dealt with the bullying complaints against her also constituted bullying. Commissioner Hampton found that the employer’s investigations were reasonable. He also found that there was insufficient evidence of repeated unreasonable behaviour towards the employee.

Commissioner Hampton considered it appropriate for the employer to engage an external third party to investigate the allegations. In commenting on the “reasonable management action” exclusion, the Commissioner gave the term a very broad interpretation, as “everyday actions to effectively direct and control the way work is carried out.” This could include effectively any reasonable act of day to day management. The Commissioner said the test of reasonableness was merely whether the management action was reasonable in the context of the circumstances, “not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’”. Even if particular steps are not taken and the management actions are not ideal or perfect, the course of the action may still be reasonable.

Key points for employers: 

  • Employers should consider whether management actions comply with established policies and procedures.  
  • If there is a departure from such policies, employers should consider whether such a departure is reasonable in the circumstances.

A link to the decision can be found here: Ms SB [2014] WC (12 May 2014)