On 1 January 2014, Part 6-4B of the Fair Work Act 2009
(the Act), better known as the "anti-bullying
regime", came in to force. The changes provide those workers
who believe that they are being bullied at work with the ability to
apply to the Fair Work Commission for an order that the bullying
According to section 789FD of the Act, a worker is bullied at
work if (while at work) an individual or a group of individuals
repeatedly behaves unreasonably towards the worker (or towards a
group of which the worker is a member) and the relevant behaviour
creates a risk to health and safety. The Fair Work Commission will
make a "stop-bullying" order if it is satisfied that a
worker has been bullied at work and that there is a risk that the
bullying will continue.
Importantly, the Act provides that a worker will not have been
subjected to bullying in circumstances where the conduct complained
of amounts to reasonable management action taken in a reasonable
manner. This is an extremely important qualification, when one
considers that about 70% of the "anti-bullying"
applications lodged with the Fair Work Commission since 1 January
2014 have been lodged by employees who have been subjected to
performance management action initiated by their employer.
So what amounts to reasonable management action taken in a
Given that the relevant provisions have only been in operation
for six months, there is currently very little by way of published
decisions of the Fair Work Commission. However, the decision of the
Administrative Appeals Tribunal in Pettiford and Comcare
 AAT 95 (27 February 2014) may provide some guidance. In
Pettiford, in the context ofworkers compensation claim,
the Tribunal was required to determine whether a psychological
injury sustained by a worker was the result the employer having
taken reasonable administrative action in a reasonable manner.
While ultimately the Tribunal determined that the relevant
action was not reasonable administrative action taken in a
reasonable manner, the Tribunal's decision helpfully cited the
judgment of Belby J in Keen v Workers Rehabilitation and
Compensation Corporation  SASC 7056 (later cited with
approval by Cowdroy J in National Australia Bank Limited v
KRDV  FCA 543 at ), who held that:
Whether administrative action is taken in a reasonable manner is
very much a question of objective fact, and is to be determined
against the ordinary standards of reasonable employers in all the
circumstances of the case. Whether administrative action is
reasonable or is taken in a reasonable manner depends first on the
finding of the primary facts as to what occurred in the taking of
the administrative action, namely what decision was made, who made
it and why it was made, what was done, what was omitted to be done
and the factual background against which the decision was made or
The practical take away from the Pettiford decision
is: provided that an employer has a reasonable basis for
taking management action against an employee and that action is
taken reasonably, that action will not amount to bullying.
To establish that "reasonable basis" employers should
document their dealings/meetings with staff with detailed file
notes of meetings that are confirmed in follow up correspondence.
For example, reviews based on failure to meet attendance standards
at work should refer to the employment agreement that sets out the
work hours – including start and finish times – and
documents the incidents of breach. There may be good reason for a
staff member being late to work, or finishing early, but they
should be negotiated and approved.
Despite the dire predictions from some quarters as to the effect
that the anti-bullying regime would have on workplace relations,
the experience to date suggests that the Fair Work Commission will
only intervene in cases of genuine bullying at the workplace.
Performance management, carried out properly, will not attract the
ire of the Commission.
Performance management is never an easy process to engage in.
Employees typically feel threatened by it and may form the view
that they are unfairly being singled out. It is important that the
process is done properly right from the outset. If you are in doubt
as to how to manage an employee's performance, we recommend you
obtain advice before beginning the process.
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.
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