This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “contact us” tab.

My business grows by referrals. I would appreciate it if you would pass my details on to your colleagues, clients or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct and more…

Introduction

Full Decision here.

In this Application for an order to stop bullying, the Fair Work Commission examines “reasonable management action carried out in a reasonable manner”.

Background

The applicant in this matter is employed by the Australian Criminal Intelligence Commission (ACIC – the Respondent) in its information technology area. He alleges that he was the subject of bullying by his Team Leader.

His employer countered that the alleged bullying behaviour was reasonable management action carried out in a reasonable manner.

This application was the subject of several conferences convened by the Commission which failed to resolve the matter, resulting in a formal hearing over five days.

The Deputy President hearing this matter found that the various actions/conduct of which the applicant complains were reasonable management action carried out in a reasonable manner.

The issues

Performance Appraisal

As part of the respondent’s performance management system, the applicant was “rated” as “Requires Improvement”. This assessment was in relation to the respondent’s upgrading of a project management platform. The applicant was the officer with the primary carriage for overseeing the upgrade to the platform.

The applicant disagreed with this appraisal and lodged a bullying complaint, alleging:

  • That he is a subject matter expert (SME) of a product that has great potential to provide far-reaching benefits for the agency in achieving its vision, mission and goals.
  • In the last 8 months, he has been able to deliver substantial outcomes, meeting the organizational objectives.
  • He recorded these achievements in the performance management system. Yet, his manager’s indicative rating of my performance does not truly reflect his achievements:

“The comments made by the team leader are undermining and belittling my efforts…”

Threatening behaviour

After a successfully completion of a product upgrade, his team leader “raised an outcry saying I could have had lost my job due to a trivial step that was missed in the documentation”.

The applicant responded that the outcome of the change was successful, new modules were made available to the agency users, and corrective action was taken immediately to ensure the change gets earned out within the approved window.

Humiliating

The applicant went to allege that:

  • His team leader accused him of stealing the property of the agency and tried to humiliate him in the presence of the Project Manager, stating that

“I should have read the Change Spec document prior to contacting the [Project Manager]. I had read it and I wanted some clarifications from the [Project Manager] on the given specifications, which she did not ask beforehand making such defaming remarks”.

  • On another occasion, the applicant claimed that the team leader dissuaded him from exploring the ‘review of action’ process against her decision that he considered unfair. She called the time spent on pursuing that internal process as a down tooling.

Ostracism

The applicant claiming that the team manager instructed him in writing, not to contact a set of users for any work-related activities and did not provide satisfactory reasons as to why. The team leader later permitted him to talk to the QA team saying that “she gave me her blessings to do so (reiterating ‘blessings’ few times).”

Consideration of the alleged bullying issues

Re SB

The Deputy President cited the seminal bullying decision by Commissioner Hampton made the following observations regarding the issue of reasonable management action in SB:

“Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner.

Section 789FD(2) of the FW Act is not so much an ‘exclusion’ but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements:

    • the behaviour (being relied upon as bullying conduct) must be management action;
    • it must be reasonable for the management action to have been taken; and
    • the management action must have been carried out in a manner that is reasonable.

The Explanatory Memorandum

The Explanatory Memorandum refers to management decisions and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s.789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion.

Determining whether 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. Without limiting that assessment, the considerations might include:

    • the circumstances that led to and created the need for the management action to be taken;
    • the circumstances while the management action was being taken; and
    • the consequences that flowed from the management action.

Specific ‘attributes and circumstances’

The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

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’. In general terms this is likely to mean that:

    • management actions do not need to be perfect or ideal to be considered reasonable;
    • a course of action may still be ‘reasonable action’ even if particular steps are not;
    • to be considered reasonable, the action must also be lawful and not be ‘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 the departure was reasonable in the circumstances.

Management action must also be carried out in a ‘reasonable manner’

For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”

Reasonable management action (performance management)

The Full Bench in Blagojevic also considered the issue reasonable management action, including question of whether placing a worker on a PIP constituted “reasonable management action”, observing as follows:

‘Section 789FD(2) qualifies the definition of when a worker is bullied at work such that it does not apply to ‘reasonable management action carried out in a reasonable manner’. There are three elements to this qualification:

      • the behaviour must be management action;
      • the taking of such management action must be reasonable; and
      • the management action must be carried out in a manner that is reasonable.

Summary of the applicant’s allegations

In this matter the applicant, among other things:

  • Disagrees with the feedback provided to him in his mid-cycle performance review and is disaffected by the decision to place him on a Performance Improvement Plan (PIP).
  • He is also aggrieved by the decision not to offer him the opportunity to act in a more senior position.
  • He contends that the team leader’s conduct towards him constituted bullying behaviour. Including accusations of raising her voice to him, engaging in aggressive, humiliating, or intimidating conduct, being rude and derogatory towards him, and being angry with him.
  • The team leader denied the behaviours attributed to her by the applicant, though she did acknowledge becoming frustrated with the applicant on occasions.

The DP considered that, if proven, the various allegations of bullying conduct made by the applicant involve management actions. Noting that the applicant’s contentions are not borne out in evidence and contradicted by a number of witnesses.

Decision

In summary, the material before the Commission supports a finding that the feedback provided to the applicant, the decisions not to offer him the opportunity to act in a higher position and to place him on a PIP and the team leader’s behaviour/conduct were all reasonable management action carried out in a reasonable manner. The DP adding:

“While some aspects might have been better handled, that does not make the particular management action unreasonable or mean that it was not carried out in a reasonable manner”.