Ms SB (12 May 2014)
This case represents the first substantive ruling by the Fair Work Commission (Commission) on the new anti-bullying jurisdiction, which commenced on 1 January 2014, and importantly provides careful guidance on what constitutes "reasonable management action" as a defence to a claim.
The facts in this matter were complex and will not be discussed in detail in this article. In short, a manager alleged that she had been bullied by two of her direct reports, and further alleged that the employer acted unreasonably in its investigation of similar complaints of bullying made by the workers against the manager. The manager commenced proceedings in the Commission seeking a stop-bullying order.
The anti-bullying provisions of the Fair Work Act 2009 (Cth) (FW Act) relevantly provide that a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker, and that the behaviour creates a risk to health and safety. Relevantly, reasonable management action carried out in a reasonable manner does not constitute bullying under the FW Act.
Reasonable Management Action
The Commission clarified that the alleged bullying behaviour will not be considered to be bullying conduct if the behaviour is reasonable management action carried out in a reasonable manner. On this provision, the Commission noted:
- The provision comprises three elements being (1) the behaviour (being relied upon as bullying conduct) must be management action; (2) it must be reasonable for the management action to have been taken; and (3) the management action must have been carried out in a manner that is reasonable;
- The term is intended to be given a wide meaning;
- Whether the management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time;
- The circumstances of the situation include the emotional state and psychological health of the worker involved;
- 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", which
is likely to mean that:
- Management actions do not need to be perfect or ideal to be reasonable;
- A course of action may still be reasonable action even if particular steps are not;
- To be reasonable, the action must also be lawful and not "irrational, absurd or ridiculous";
- Any "unreasonableness" must arise from the actual management action in question, rather than the applicant's perception of it; and
- Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether departure was reasonable in the circumstances.
In rejecting the manager's claim, the Commission accepted that the making of vexatious allegations against a worker, spreading false or inaccurate rumours or conducting an investigation in a grossly unfair manner are capable of being considered as bullying conduct. However in this case there was insufficient evidence to provide the basis for findings of bullying.
Legal Professional Privilege
Relevantly, in this case the employer resisted the Commission's request to be provided with a copy of the employer's own investigation report. The Commission ultimately accepted the employer's argument that the report was subject to legal professional privilege.
Accordingly, organisations should ensure that legal professional privilege is established as soon as possible after the employer becomes aware of a bullying allegation. This will enable the employer to resist attempts by the Commission to review copies of witness statements and other documents created by the employer during the course of an investigation into a bullying allegation, noting such documents may often include content which may not necessarily be favourable to the employer.
Mr Tao Sun (16 June 2014)
On 19 February 2014, Mr Sun made an application to the Commission for an order to stop bullying pursuant to the FW Act. The application was for an order against a manager of Mr Sun, Mr Achemedei of CITIC Pacific Mining Management Pty Limited (the Employer).
The Employer denied that the actions alleged by Mr Sun constituted bullying pursuant to the FW Act, and in any event, were reasonable management actions carried out in a reasonable manner and hence excluded from the definition of workplace bullying.
Mr Sun completed a performance appraisal with his direct manager, Mr Liu, in November 2013 at which time Mr Sun received a rating of "Meets Requirements" for each objective in the performance appraisal.
In January 2014, Mr Sun alleged that Mr Achemedei changed the weightings on his performance appraisal, which resulted in him receiving an annual bonus of less than he expected (First Complaint).
The Company investigated this complaint and found that Mr Sun's allegations were not substantiated.
In February 2014, Mr Sun complained that Mr Achemedei had sought to allocate tasks to Mr Sun which were outside of Mr Sun's position description (Second Complaint). This complaint related to a meeting on 13 February 2014 in which Mr Achemedei discussed Mr Sun's role and how he carried out that role with respect to a new project, The Cloud Expression of Interest (Cloud EOI).
The Company also investigated this complaint and found it to be unsubstantiated.
In his decision, Commissioner Cloghan noted:
- There was no evidence for Mr Sun to allege that Mr Achemedei had changed Mr Sun's performance appraisal.
- With respect to the annual bonus, it was clear that the bonus was entirely discretionary and unless it could be demonstrated that a discretionary payment had been applied in a punitive manner as part of a course of conduct which falls within the meaning of workplace bullying, the Commission should be cautious in considering, of itself, a discretionary bonus as workplace bullying. This should be a matter which is left to the employer's discretion.
Mr Sun had accessed Mr Achemedei's electronic diary during his employment for the purpose of attempting to obtain evidence against Mr Achemedei. The Commission was critical of Mr Sun's actions and emphasised that simply because an employee believes they are being bullied at work does not give him or her immunity from observing all the policies and practices expected in the workplace and in the employment relationship.
In relation to the Second Complaint, the Commissioner noted that position descriptions are often couched in general terms and do not contain each and every current or projected task to be undertaken, and that Mr Sun's employment contract expressly provided that the Company may vary his duties and responsibilities at any time consistent with his role.
The Commissioner also noted it was wrong for Mr Sun to assert that every review of his performance had to be done during a specified review period:
"To remain in business, [employers] have to measure and monitor the performance of employees both in quantitative and qualitative terms. Such monitoring is not locked into a set review period or procedure – it is an ongoing process."
Although the legislation states that a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards a worker, an exception applies in relation to reasonable management actions carried out in a reasonable manner.
Both of these recent decisions demonstrate willingness on the part of the Commission to support employers and managers who have undertaken reasonable performance management or other management prerogatives with respect to their employees. Formal and documented performance management is always preferable, with appropriate witnesses taking notes in meetings, and largely avoids "he said / she said" disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.