The concept of "reasonable management action" arises
both in relation to workers compensation claims for psychological
injury (including claims concerning stress and anxiety), and in
relation to bullying claims in the Fair Work Commission. Reasonable
management action, carried out in a reasonable manner, may be a
defence to these claims.
What is reasonable will vary depending on the circumstances.
Here are some examples:
Worker sacked for obesity posing a workplace
BHP Coal sacked a supervisor who weighed 160kg because medical
assessments indicated he couldn't perform some workplace tasks
safely because of his weight. The supervisor made a claim for
stress and depression resulting from the dismissal. Before
terminating his employment, the supervisor had been absent for
nearly two years on stress leave, during which BHP argued that it
made significant efforts to try to get him to return to work,
including regular contact, counselling, and arranging
fitness-for-work assessments. These assessments identified issues
such as kneeling, squatting or climbing ladders as being risky
because they may aggravate an underlying knee condition. The risk
to other workers who might have to try to move the employee if he
became injured at work was also taken into account. The employer
tried to get the employee to address his weight problem to
eliminate safety issues but to no avail.
The Commissioner hearing the case viewed the manager's
actions as being those of a manager genuinely working towards
returning the supervisor to work. A superficial or overhasty
approach may have had a different outcome, but in this context, any
psychological injury suffered by the employee was the result of
reasonable action by management.
Workplace change, not bullying
A long serving employee of The Salvation Army's Employment
Plus job placement service complained about changes in her duties.
Having previously dealt with clients who were "generally job
ready," the scope of clients she needed to deal with was
broadened to include people who weren't job ready, and who may
have impediments to obtaining work such as recent time in prison,
drug issues or mental health issues. The employee refused to deal
with these clients.
Management insisted, and the employee made a bullying claim to
the Fair Work Commission. The Commissioner noted that it wasn't
unreasonable for the employee's refusal to work with some of
her allocated clients to become an issue in her performance
appraisal, when it was part of her job description. The fact that
Employment Plus had not closely assessed individual performance in
the past, and that the introduction of individual performance
management was a significant change, was not unreasonable. The
Commissioner felt that the organisation had shifted from "a
long period of moribund management to an environment where the
organisation is performance focussed." While this was a
significant change for the employee, it was reasonable management
action and did not amount to bullying, particularly when there was
evidence that the change of culture was intended to avoid losses
which had to be subsidised from elsewhere in the organisation.
Failure to make reasonable adjustments
In contrast, in another recent case, Corrective Services NSW
(CSNSW) had to pay substantial damages to an employee for
discriminatory treatment when it failed to make reasonable
adjustments for the employee after she was diagnosed with a
digestive disorder. Medical evidence available to CSNSW confirmed
that the employee could make trips of longer than 30 minutes,
provided breaks were scheduled to assist her to do so. However,
CSNSW ignored the qualification, and acted on the basis that the
employee was unable to travel for longer than 30 minutes. As that
was necessary for her secondment as an intelligence analyst, that
secondment was terminated, and the employee was told she would be
medically retired unless able to return to her original
The conduct of CSNSW was found to rest on misunderstandings,
assumptions without foundation and an attitude of presumption,
rather than bringing an open mind and positive approach to
resolution of the issues. CSNSW had decided early on that medical
retirement was the only option, whereas a more open and
consultative approach may have yielded solutions to the perceived
The lesson to draw from these examples is that a knee jerk
response, or a response based on unsound assumptions, will not be
"reasonable management action," while the open-minded and
consultative approach taken by BHP Coal or the assertive and
soundly based approach of Employment Plus are much more likely to
meet that standard.
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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When employees engage in out-of-hours misconduct, it can negatively affect the reputation of the employer.
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