The Fair Work Commission has handed down its first decision to substantively consider the meaning of the anti-bullying provisions in the Fair Work Act 2009 in Ms SB  FWC 2104.
Why does this case matter?
This is the first case from the Commission to address the meaning of 'reasonable management action carried out in a reasonable manner'. Employers are offered insight into the considerations applied to this meaning, reiterating the importance of clearly defined and consistently applied processes. Reasonable management action is an exception in the definition of bullying under the Act.
What was Ms SB's claim?
SB had been appointed to manage a team of Delivery Support Officers. The team included employees who had been drawn from other work groups, and the Commission found there was a division within the team between those who supported SB as a manager, and those who did not.
SB argued that the following alleged behaviours constituted bullying:
- two colleagues making separate complaints of bullying against SB
- the employer accepting the complaints for investigation
- the employer failing to take adequate action to prevent similar inappropriate conduct (i.e. further complaints) after the first complaint was resolved in favour of SB
- the employer failing to support SB while she was the target of ongoing rumours
- one employee harassing and badgering SB on a daily basis
- one employee documenting SB's conduct
- the employer failing to notify the employees of the outcome of the investigations into the complaints.
When is a worker bullied at work?
Under the Act, a worker is 'bullied at work' if, while the worker is at work, an individual or group of individuals:
- repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and
- that behaviour creates a risk of health and safety.
The Act states, however, that 'reasonable management action carried out in a reasonable manner' does not constitute bullying.
What is reasonable management action carried out in a reasonable manner?
The Commission held that management action includes everyday actions to effectively direct and control the way work is carried out, including management decisions.
'Reasonable' and 'carried out reasonably'
The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'. The Commission referred to previous cases in the accident compensation area where this test has been considered, and held that the test is likely to mean:
- management actions do not need to be perfect or ideal
- a course of action may be reasonable, even if particular steps are not
- the action must be lawful and not irrational, absurd or ridiculous
- unreasonableness must arise from the actual management action, and not the employee's perception of it
- consideration may be given to whether the management action involved a departure from established policies and procedures and if so, whether the departure was reasonable in the circumstances.
What did the Commission find?
The Commission held that some of the alleged behaviours may have been considered unreasonable for the purposes of the Act. However, there was insufficient evidence to conclude the alleged behaviours occurred, or were unreasonable in the context they occurred.
Specifically, the Commission found:
- the making of the complaints was not of itself unreasonable, and the two complaints were insufficient to support the notion of a coordinated campaign against SB
- the employer's receipt of the complaints and conduct of an investigation was the only reasonable and prudent response in the circumstances
- a public exoneration of SB by the employer was not necessary
- there was little to no direct evidence of colleagues spreading rumours about SB.
The Commission held that while the employer informed SB of available support programs, it should have been more proactive to ensure the adequacy of support after the first complaint was investigated. However, the employer's failure to ensure SB utilised the programs was not unreasonable, given she did not at the time see the value of such support and had a period of absence from the workplace.
Lessons for employers
Employers should take comfort that the Commission has adopted a view that reasonable management action carried out in a reasonable manner, does not require that all management action is faultless.
The key learnings from this case are:
- the receipt and investigation of a complaint constitutes reasonable management action, if conducted reasonably
- management processes must be clearly defined and consistently applied; employers must be able to justify departures from the usual or stated process
- the Commission will consider whether the management action was unreasonable at the time it occurred, and not with the benefit of hindsight.