When employees are disciplined or put on a performance improvement plan, HR and line managers can be accused of bullying. This development has spooked some managers who are reluctant to act. Hence bad behaviour and poor performance is let slide, much to the chagrin of more obliging employees who suffer in silence – then often leave. 

But the Fair Work Commission has made some useful comments about the distinction between bullying and what has become known in this area, as “reasonable management action”. Given its central role in determining bullying complaints, what the FWC has to say about this is significant. 

Importantly, to help make clear what the expression “reasonable management action” means in a practical sense, the FWC said in a recent case that “The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. 
Helpfully, the FWC in the same case, set out five points as a way of establishing the reasonableness of any actions taken. 

First, management actions do not need to be perfect or ideal to be considered reasonable. For many small businesses this is a great relief, as the resources simply aren’t available to dot i’s and cross t’s, no matter how good one’s intentions. 

Second, a course of action may still be ‘reasonable action’ even if particular steps are not. Often some aspect of the process may seem severe, like a tough timeline set but not met. And missteps along the way do not mean the overall approach is fatally undermined. 

Third, to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’. This is self-explanatory and a useful definition to apply to the more general issue of directions/instructions that employers can give. 

Fourth, any ‘unreasonableness’ must arise from the actual management action in question, rather than the employee’s perception of it. This relates to the intentions of the decision-maker. Many cases of alleged bullying have turned out to be nothing of the sort. Rather, the employee could not handle any criticism, had no experience of being disciplined and had an unrealistic evaluation of their own ability. 

And finally, consideration may be given 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. Again, self-evidently, employees ought to be treated the same absent good reason to do otherwise. 

Employers need to be able to frankly and effectively let employees know what the workplace needs out of the employee without bullying charges being thrown at them. These guidelines should assist managers to approach their disciplinary and performance management responsibilities confidently.
 
Source: First IR – Industrial Relations July 2018