Earlier this month the Fair Work Commission handed down another decision in its new bullying jurisdiction. The allegation of bullying was made against a manager, and raised the issue of whether the relevant conduct was in fact “reasonable management action”. The conduct – which included allocating new tasks to the employee complainant, was found not to constitute bullying, and the complaint was dismissed.
An employee alleged bullying by his General Manager when he was directed to take on a project which was not specifically referred to in his position description. He also alleged bullying when he was subjected to an ongoing performance review, after a specified review period had passed.
Commissioner Cloghan found that neither of these incidents amounted to bullying. The Commissioner ruled that it was not uncommon for position descriptions to "be couched in general terms and not contain each and every current or projected task to be undertaken" and that it is "not sustainable for employees to say that a task is beyond their skill level and if the Employer does not agree, allege that it is workplace bullying". In this instance, the employee's contract allowed the employer to vary his duties and responsibilities at any given time, provided that they were consistent with his role. Further, it was reasonable for the General Manager to assign the particular project to the employee, particularly as the General Manager had also offered support and assistance to the employee.
The Commissioner also found that regular monitoring and measurement of employee performance is necessary in order for businesses to manage staff and respond to performance issues. Although, any feedback to be provided to employees should of course be fair, constructive and conducted in a reasonable manner.
One more important note to take away from this decision is that when an employee believes that he or she is the subject of workplace bullying, that belief does not authorise or entitle the employee to behave inappropriately. In this instance, the employee had recorded meetings against the direct wishes of the employer, and had accessed confidential information without consent.
Tao Sun  FWC 3839 (16 June 2014)