This recent FWC decision[1] contains substantial guidance for managers and supervisors when dealing with potentially difficult or resistive subordinates.
The FWC closely scrutinised this employer’s actions when considering the employee’s claim.
Even the employer’s internal workplace investigation was called into question by the FWC for failing to consider a number of relevant workplace dynamics.
The decision underscores that managers and supervisors need to tread carefully with the new workplace bullying laws.
Whilst many of the day to day actions of managers may constitute ‘reasonable management action’, it is critically important that those actions are carried out in a reasonable manner.
Background
At the time of her application, the employee was a training manager responsible for a small team of other employees.
In September 2013 the business implemented a number of changes to reporting requirements for its training managers.
The employee was on annual leave from 28 August 2013 to 23 September 201; the period during which the changes were introduced.
These changes were prompted by the ongoing unsatisfactory financial performance of the training arm of the company.
Prior to her absence, there had been no reported issues between the employee and her General Manager, however in October 2013 significant tensions began to develop.
The Bullying Complaint
In the employee’s application to the FWC, the employee alleged that during the period 30 October 2013 to 28 November 2013 her General Manager:
- Used aggressive tone and behaviour towards her
- Questioned her decisions and ‘hounded’ her for information
- Undermined her management and control of her team
- Blamed her for a lack of information
- Shouted at her
- Belittled her
- Ordered her to go home after returning to work early when on sick leave
- Was overbearing when dealing with work issues and
- Refused her access to a support person for future meetings between the pair
The employee has not been at work since 29 November 2013, suffering from a stress related illness.
She had made an internal complaint prior to her FWC application, which was found by the employer to be unsubstantiated.
Employer’s Response
In response to this application, the employer and General Manager also made a number of allegations regarding the employee.
In particular, it was suggested the employee was extremely difficult, resisted the changes made to the reporting requirements, engaged in a campaign against the General Manager and was openly hostile.
What did the employee need to prove?
In order for the FWC to find in the employee’s favour, she needed to establish that:
- She was subject to unreasonable behaviour
- That the behaviour was repeated
- The unreasonable behaviour occurred at work
- The behaviour was not reasonable management action carried out in a reasonable manner
- The behaviour created a risk to health and safety and
- There is a risk the behaviour will continue
The Decision
Throughout the FWC’s decision it was clear that many of its considerations could have gone either way.
Overall the FWC could not accept the employee’s allegation that the behaviour complained of was not, in the circumstances, reasonable management action carried out in a reasonable manner.
In relation to each complaint, the FWC found that it was reasonable for the General Manager to:
- Forcefully communicate his displeasure that the way the employee was interacting with him was unacceptable and that it must stop
- Deal with the individual team members instead of the applicant in regards to concerns considering his overall responsibility for the department
- Request information regarding unsatisfactory performance of team members on more than one occasion
- Raise concerns about meeting the budget
- Direct the employee to leave work when returning early from sick leave
The only instance of unreasonable behaviour was the General Manager failing to properly respond to the employee’s request for a support person in future meetings.
The FWC considered it was reasonable to refuse the employee’s general request, but determined the refusal was not carried out in a reasonable manner.
In relation to the allegation of aggressive behaviour and tone the FWC stated that “it is to be expected that people will from time to time get upset and angry and will express that upset and anger”.
In the context, there was no evidence this aggressive behaviour happened more than once.
Had it been reinforced by repeated similar behaviour, it would have been considered in a different light.
Further an isolated instance of raised voice would not constitute unreasonable behaviour.
Finally the employer had good reason to be critical of the employee and the way in which she had failed to adequately adapt to and in some circumstances was resisting the new reporting arrangements.
The Internal Workplace Investigation
While not in issue, the FWC made a number of comments about the employer’s internal workplace investigation into the original bullying complaint.
Although it was not viewed as unfair or unreasonable, the FWC considered the HR manager did “place inappropriate reliance” on the evidence of two witnesses who were very close to the General Manager.
Further, the HR manager did not give adequate attention to the potential role of gender issues, overall atmosphere or culture in the office, and the attitude which had developed concerning the employee.
The Outcome
Having not found repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner, the FWC dismissed the employee’s workplace bullying application.
Lessons for Employers
This decision has highlighted the practical application of ‘reasonable management action’ defence to workplace bullying claims made against supervisors and managers.
Although it was recognised that all of the behaviour complained of did result in significant stress for the employee, fortunately for the employer, the manager’s conduct did not go so far as to satisfy the elements of workplace bullying under the Fair Work Act.
It is not all good news for employers however.
The FWC’s decision is an example of the intense scrutiny of management actions that employers are liable to face where a workplace bullying claim relates to the actions of a manager.
In this decision, one instance of unreasonable behaviour by the manager in question was found.
Had the requirement of ‘repeated’ (unreasonable) behaviour been met, the outcome would likely have been very different.
