Anti-bullying Series 2 – What is reasonable management action?

The second in our series of online training sessions briefing HR professionals and managers about the upcoming Anti-Bullying Measures to be introduced on January 1 under changes to the Fair Work Act. In this session, we explore what management action is and when it would be considered reasonable.

0:20 – What is not bullying?
1:22 – Management Action
3:13 – Management Action 2
4:37 – A wider meaning under the FWA?
6:06 – A new look at What is not bullying?
7:20 – When is management action reasonable?
8:55 – When is management action reasonable- 2?
10:18 – When is management action reasonable - 3?
12:33 – Reasonable?
13:34 – Downward Bullying
14:32 – What you can do

Video Transcripts:

Let’s get into this webinar and talk about what is management action and when it would be reasonable and how well the Fair work Commission consider this?

0:20 – What is not bullying?

Before we go on to that I wanted to refer back to our last webinar when we talked about bullying and as part of that we need to understand what will be considered to be not bullying?

That will be

  • ‘Behaviour that will not be considered to be bullying if its reasonable management action carried out in the reasonable manner.’

And from that statement there, which is in the Fair Work Act, I think it’s important for us to look at 3 definitions within that. The first is reasonable management action. We need to look at what management is. And then we need to look out what would be reasonable management action and unreasonable management action. And then how that would be carried out in a reasonable manner or an unreasonable manner. Then that may help us explore what would be considered bullying and not considered bullying in this management action space.

1:22 – Management Action

I think it’s really important for us to be looking at this because I get the sense that managers now from the 1st of January will be very, very hesitant to performance manage their staff and they're going to need some support around this concept of management action.

In the past case law has focused on management action within workers compensation cases. Under those cases this is what has been coming out as what is considered management action. You can see there we’ve got quite a list of tasks that managers might participate in. In terms of talking with the worker or taking a worker through a process and you can see that they're all very formal management action processes:

  • Performance appraisals,
  • Measuring underperformance and having meetings about that,
  • Counseling workers for misconduct implementing discipline action around that misconduct,
  • Modifying workers’ duties. We might tend to do that as managers on a day to day basis but in this context it’s about going through a formal process that leads to a work having your duties modified or perhaps a work being transferred.
  • When an investigation is taking place into an alleged of breaches of policies or misconduct that would be a formal process.
  • Perhaps denying or even giving a worker benefit in relation to the employment  in fact would be seen as management action but I’m not sure that a worker would put in a complaint of bullying if actually given a benefit.

Things like refusing a worker to return to work on medical conditions or asking them to attend a medical to assess whether they are fit for work. They're some of the formal concepts around management action that we are seeing from case law in Workers Compensation cases.

3:13 – Management Action 2

As I've said before what this shows us through those cases is that management action is considered to be formal management action. It’s in those cases what is coming out from that case law is that informal and spontaneous conversations that happened every day between the manager and worker will not be considered management action. Even though it’s a manager who is having that conversation and it’s probably a better action that needs to happen.

If it’s informal and spontaneous under those cases in terms of workers compensation is not seen as management action even, if the conversation is related to those tasks or those processes and procedures that we saw on the previous slide. The simple day to day operational instructions that our managers give workers every day to ensure that work is performed. Under this precedence in this case law would not be considered management action.

That's a bit of a concern if that's the only scope that we are going to be looking at because we can have every interaction that a manager has with the worker as a formal process. We know that there are lots of informal and spontaneous conversations that a manager that has to have or should be having every day to keep their workers on task and focus in performing.

4:37 – A wider meaning under the FWA?

It’s interesting then and I think it’s very appropriate that the Fair Work Commission has referred to the explanatory memorandum for the Fair Work Act. Because under those explanatory memorandum notes that this new provision in the Fair Work Act it doesn't mention that managers have rights and they have an obligation.

In fact they have the responsibility to take appropriate management action and make appropriate management decisions in response to poor performance, disciplinary action, and we say that within the formal processes that we covered already under what is management action, but then it goes on to include the effective direction and control of the way the work is carried out. We know that happens on a day to day basis.

We also know that on the day to day basis managers are supposed to and hopefully they do give fair and constructive feedback on worker's performance and allocate work and distribute work. The explanatory memorandum under the Fair Work Act for the provisions does give us a broader scope to consider what is management action. From there we can say that management action is both the formal processes that managers will take staff through, workers through, as well as the informal spontaneous day to day processes of directing and controlling work, giving feedback to workers, and allocating work.

6:06 – A new look at what is not bullying?

Management action on its own will not be enough to ensure that a stop bullying order application is dismissed if a worker would like to put in an application against their manager. Not only does the management action need to have occurred but it needs to be reasonable and needs have been carried out in a reasonable manner.

In working out what is a reasonable manner all of these circumstances around that case will need to be considered and interestingly, the memorandum for the Fair Work Act around these provisions does actually say that management action will not be bullying if it does not leave the worker feeling victimised and humiliated. Well, that's quite interesting that they’ve included that because that's quite a subjective or could be quite a subjective assessment because we know that when workers are subjected to management action most of the time they do feel victimised, hopefully not humiliated but they're aggreived by that process and being put under the spotlight, and having that attention on them for the need to improve or it would be discipline for some reason.

7:20 – When is management action reasonable?

I would consider that in determining what is reasonable about management action that the ‘objective test’ around reasonableness would need to apply to this also. It would involve measuring the actions of the manager against the actions of a hypothetical manager who is reasonable and objective and when placed in the same circumstances would have considered all the knowledge that was held at that time about the circumstances in the case.

I think this is really important for a discussion here with your managers because although workers don't like being managed in terms of management action, especially formal processes, I don't know of too many managers who are actually very comfortable with delivering that process either. And in fact there are quite a few managers who are not very comfortable delivering informal day to day management action and being able to speak up constructively. They do tend to become quite emotional about that and that does cloud their judgment and cloud their language and how they communicate and what they do. If they're being driven by their emotions in that situation and they're anxious then perhaps they are not being objective and they are not being reasonable.

There will be some training here for managers to be able to participate in management processes and management action in an objective reasonable way without getting emotions involve, getting anxious, and therefore clouding their judgment or their perception on what is happening and what has happened.

8:55 – When is management action reasonable - 2?

As part of that objective test, there is an objective assessment that should include; understanding and knowing all of the circumstances that have led up to that point where management action needs to be taken, and that will also need to include the circumstances that are occurring while the management action is being taken, and what could be considered to flow from that management action. If the management action is reasonable then we would expect reasonable outcomes and that would be to achieve our reasonable objective by the end of the process. If the consequences aren't meeting the objective and they are not reasonable then perhaps we would consider that the management action wasn't reasonable.

Note that while a manager is working through the management action processes they must consider at all times the emotional state and psychological health of the worker involved. Throughout that process there should be checks in place to see how that worker is traveling and to ensure that they are coping with that process, and they may perhaps need some EIP support or some other assistance as well, but that should be considered to make sure that the management action is reasonable.

10:18 – When is management action reasonable - 3?

The ‘reasonable test’ will also include looking at that management action and determining whether it could have been undertaken in the manner that was more reasonable or more acceptable.

Before a manager starts to go down the management action pathway whether it be informal or formal there should be some thought put in to what they're doing and what they're going to say? What outcome they're looking for? What is the objective? How is it going to be reached? Having a discussion with HR or another single manager around this to get some perspective and some objective perspective on this to work out could this process be delivered in a more reasonable manner? Does it need to be delivered at all? Is there another process that should be applied? Having somebody else view this to say could be more reasonable or more acceptable.

Interestingly, the case law that we have seen around management action does note that management action doesn't need to be prefect or ideal for it to be considered reasonable. That's good to know. There are cases where management action has been taken and not all the steps are being followed in the formal process or the organisational policy, however the departures from that process or the exclusion of those steps has been considered to be not significant and still reasonable. This doesn't give leeway for managers to be implementing a process of their own or skipping steps within the organisational policy or process around this, but to say that, “You know what, you don't have to be perfect”. This doesn't have to be to the letter, but it still does have to make sure that there is no significant deviation from the procedure and any deviation is reasonable.

Of course, all management action must be lawful. There's also a note there that any investigations carried out in the workplace, whether they're at a formal or informal level, must be carried out in a timely manner because not to do so would be considered unreasonable and therefore we're opening up ourselves to, is that management action over an investigation reasonable and it is being conducted in a reasonable manner if the investigation is not being done in a timely manner?

12:33 – Reasonable?

We’ve been having a look at what management action is and questioning or what is reasonable about management action? I think we can assume that the Fair Work Commission will consider the management action taken in an objective manner will be reasonable or not reasonable but they will make that decision without putting too much weight or solely putting weight on what the worker perceives as that management action.

We would assume that the worker would have perceived the management action to be unreasonable otherwise they wouldn't put in a stop bullying order an application for stop bullying order. I think from what we are seeing in the Fair Work Commission draft paper work that they will consider this overview of management action and will be looking for the objectives in it and not just the emotion of how the worker perceives that process.

13:34 – Downward Bullying

I just wanted to touch again on what we considered to be downward bullying in the webinar because it will be important for your managers to know about these things that have been considered to be downward bullying in previous cases and to know that they need to avoid this. This is not what they should be doing and if they do it then it’s quite likely that it will be perceived as bullying by a manager towards a worker. I think that's an important conversation to be having with your managers that these actions on these slides are things should not be entered into and should be avoided. They do need to be aware especially if they're not being objective about the process they're involved in. The outcomes they're looking for and they are emotionally cluttered about it. That they're not overzealous or they're not misguided in what they're doing and we might be seeing some these actions come into play.

14:32 – What you can do

What can you do to support your managers to understand what is reasonable management action and how can it be carried out in a reasonable manner? Firstly I think you need to be discussing these concepts with your managers.

  • They must be encouraged to continue directing and performance managing their staff. It is integral to the function of the business and the effective function of the team that managers are on the day to day basis directing their staff, controlling work activities, allocating work, giving informal feedback, and continuing to do formal processes as well where they're required. Yet, if they have a lack of understanding in this area it will lead to a lack of confidence and managers will avoid effectively managing their staff or their workers out of fear that the bullying claim will be made against them. This is just not suitable for your workplace for any business.
  •  Managers must be there holding their staff accountable and responsible enjoying a constructive workplace relationship with them and having effective teamwork, and effective production of work. Please do look to have conversations with your managers around this. Upscale them in what is considered to be approved management action and processes from what we covered off in these slides but also from what your policies and procedures say around this.
  • Make sure they know exactly the steps they must take and in many circumstances I think they're going to need some training on what to say, not just what the process is. Some of the organisational policies I've seen in this area a very general and very broad and to give that to a manager and say, “Here just follow this”. Is not going to support them to deliver reasonable management action in a reasonable way. There needs to be minimal gaps filled in for our managers including perhaps coaching them on how to start the conversation, what to say, and exactly what steps they should be taking. Step by step along the way and what they should be looking out for.
  • We can also be doing a lot of communication training because the process is one thing but how it is delivered by the manager is quite a different thing and that also has to be delivered in a reasonable manner. We are going to have more success of our workers believing that process is being delivered in a reasonable manner if our managers are choosing the correct language and their choice of word, staying calm and objective, neutral tone of voice. That has already built up a good rapport with their staff so the staff member has some workplace relationship there that can be fallen back on to know that this is actually the right and responsibility with the manager to be having this conversation. I think there is a lot of work that can be done in this space to support managers to continue to informally and formally manage staff and minimize the risks of a stop bullying order application being made.
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About the Author

Catherine Gillespie brings a wealth of skill to her clients. With particular expertise in teaching communication and workplace conflict resolution skills, Catherine has made a marked difference to the organisations she has worked with. She empowers teams and managers to adopt constructive styles that support harmony, productivity and progress in the workplace.