As an employer, it is important to know that your managers are able to allocate work tasks and monitor performance of employees without risk of censure from the Fair Work Commission.
A recent FWC decision has confirmed that (provided such direction is undertaken in a reasonable way) the allocation of work tasks outside of an employee’s job description is not workplace bullying.
A comfort for employers, this decision has clarified how the ‘reasonable management action’ exception operates as a practical defence to a workplace bullying allegation.
Employed since April 2012, the employee in question made two unsubstantiated complaints against his general manager before applying to the Fair Work Commission for an order to stop bullying.
The first complaint, made after the employee collapsed at work in December 2013, alleged that an unnamed person had changed the weightings on the employee’s annual performance appraisal that had just been completed in November of that year.
At a meeting relating to the complaint, the employee then alleged that his general manager was responsible for the change, leading to an annual bonus less than he expected.
A workplace investigation was initiated, which found the complaint not substantiated.
The second complaint, made on 14 February 2014, alleged that a meeting held the previous day with the general manager and his direct supervisor, was a further review of the 2013 performance appraisal, made outside the allocated time for such performance reviews.
The general manager notified the employee that in the circumstances he was entitled to allocate tasks outside of the position description and was able to monitor those tasks and expectations.
Five days later, the employee made an application to the Fair Work Commission alleging workplace bullying from his general manager.
On 7 March 2014, the employee was notified that his second complaint was also unsubstantiated.
In relation to the first complaint, the employee relied on a confidential email he had read (through unauthorised access) between the general manager and the employee’s direct supervisor questioning the employee’s performance on a specific task.
The email referred to a proposed meeting (eventually held on 14 February) to discuss the employee’s ongoing performance.
When questioned by his employer, the employee could offer no explanation as to how he obtained access to the general manager’s emails from his personal electronic diary.
In relation to the second complaint, the core element involved a difference of opinion as to whether the employee was sufficiently skilled to be capable of carrying out the task.
The general manager’s evidence was that the employee’s resume indicated that he was capable of carrying out the task.
The employee conceded in evidence that the employer advised him that if he found himself in difficulties, support would be provided.
The employee also presented five covert recordings of meetings held with his employer, without the participants’ knowledge and contrary to an express direction not to record the meetings.
The FWC Decision
The FWC was not convinced that workplace bullying had occurred as alleged.
In fact, it was considered “not unreasonable” for the general manager to allocate the additional project and then monitor the employee’s performance.
In regards to an employee’s bonus expectations, the FWC considered that:
… unless it can be demonstrated that a discretionary bonus payment has 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 of considering, of itself, a discretionary bonus as workplace bullying.
Further, the FWC considered “it is not sustainable for employees to say that a task is beyond their skill level and if the employer does not agree, allege that it is workplace bullying.”
In this case, the employee’s belief that he was not properly able to complete the task was not supported by his resume, his employer’s view, his position description or his work to date.
Finally, the FWC cautioned employees against thinking they can simply ‘down tools’ if they believe they are being bullied:
if an employee believes that they are being bullied at work, this does not mean that the normal duties and responsibilities of employees are no longer applicable.
The FWC was critical of the employee’s actions to gain access to confidential communications, stating that:
… because an employee believes they are subject to workplace bullying, that belief does not authorise the employee to behave in any fashion they think appropriate. Adopting such a course of action is full of difficulties.
The FWC also gave short shrift to the employee’s belief that the employer could only review his performance during a dedicated review period.
Mr Sun’s view that every review of his performance has to be done during the review period is plainly wrong. The fact that [the managers] met with Mr Sun on 13 February 2014 was reasonable management practice and not bullying in the workplace.
The FWC considered the manager’s actions, “when applying an objective test, were not bullying or unreasonable; they were reasonable and carried out in a reasonable manner”.
The FWC dismissed the employee’s workplace bullying claim.
Lessons for Employers
The FWC’s decision clarifies some of the circumstances when actions of management will be considered reasonable and not workplace bullying.
This decision also demonstrates that:
- An alleged workplace bullying victim needs to come before the FWC with ‘clean hands’. That is, an employee cannot claim workplace bullying and then engage in deceitful practices such as unauthorised accessing of manager’s emails or covertly recording meetings with managers.
- An alleged workplace bullying victim cannot choose to ‘down tools’ simply because he/she has made a workplace bullying complaint.
- The monitoring of employees’ performance is a fluid, ongoing process and employers are not locked into a set review period or procedure.
When faced with a workplace bullying allegations against a manager, how does an employer establish whether the manager’s actions were reasonable management action taken in a reasonable way?
By conducting a thorough, robust workplace investigation.
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 Tao Sun  FWC 3839 (16 June 2014)