See Fair Work Act s.789FD(2)
Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.[1] Section
This qualification is comprised of three elements:
The following are examples of what may constitute management action:
An informal, spontaneous conversation between a manager and a worker may not be considered management action, even if issues such as those listed above are raised.[9]
The term ‘management action’ has been extensively considered in the context of workers’ compensation laws. Recent workers’ compensation cases suggest that, to be considered management action, the action must be more than simply day-to-day operational instructions that are part and parcel of the work performed.[10]
The words used in s.789FD(2) however are less qualified: they exclude ‘reasonable management action carried out in a reasonable manner’. Unlike some workers’ compensation exclusions they do not refer to prescribed actions taken ‘in respect of the employee’s employment’ etc. or prescribe any list of ‘management’ or ‘administrative’ action. The Explanatory Memorandum suggests that the term may be required to be given a wider meaning under s.789FD(2):
112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker's performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.
This suggests that the legislature intended everyday actions to ‘effectively direct and control the way work is carried out’ to be covered by the term 'management action'.[11]
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, including:
This covers the specific ‘attributes and circumstances’[13] of the situation including the emotional state and psychological health of the worker involved.[14]
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’.[15] In general:
At the very least, to be considered reasonable, the action must be lawful[19] and must not be ‘irrational, absurd or ridiculous’.[20]
Any unreasonableness must arise from the actual management action in question rather than the worker’s perception of it.[21]
For the exemption in s.789FD(2) to apply, the management action must be carried out in a ‘reasonable manner’.
As above, what is ‘reasonable’ is a question of fact and the test is an objective one.[22]
Whether the management action was taken in a reasonable manner will 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.[23]
This may include consideration of, for example:
However the impact on the employee cannot by itself establish whether or not the management action was carried out in a reasonable manner, and some degree of humiliation may often be the consequence of a manager exercising his or her legitimate authority at work.[27]
An employee must be able to demonstrate that the decision to take management action lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.[28]
[1] Fair Work Act s.789FD(2).
[2] Thompson and Comcare [2012] AATA 752 (31 October 2012).
[3] Martinez and Comcare [2012] AATA 795 (14 November 2012).
[4] Truscott and Comcare [2012] AATA 220 (17 April 2012).
[5] Towns and Comcare [2011] AATA 92 (14 February 2011).
[6] State of Tasmania v Clifford [2011] TASSC 10 (24 February 2011).
[7] Towns and Comcare [2011] AATA 92 (14 February 2011).
[8] Drenth v Comcare [2012] FCAFC 86 (21 May 2012), [(2012) 128 ALD 1].
[9] Rutledge and Comcare [2011] AATA 865 (7 December 2011), [(2011) 130 ALD 94].
[10] Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 (8 March 2012), [(2012) 217 IR 335].
[11] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 48.
[12] Georges and Telstra Corporation Limited [2009] AATA 731 (24 September 2009) at para. 23; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at paras 49–51.
[13] ibid.
[14] ibid.
[15] Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004) at para. 79, [(2004) 135 FCR 105]; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.
[16] Department of Education & Training v Sinclair [2005] NSWCA 465 (20 December 2005); Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.
[17] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.
[18] ibid.; Department of Education & Training v Sinclair [2005] NSWCA 465 (20 December 2005).
[19] Von Stieglitz and Comcare [2010] AATA 263 (15 April 2010) at para. 67.
[20] ibid.; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 51.
[21] Blagojevic v AGL Macquarie Pty Ltd; Mitchell Sears [2018] FWC 2906 (Saunders C, 23 May 2018) at para. 113.
[22] Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 52.
[23] Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 6519 (25 February 1998), [(1998) 71 SASR 42]; Re Ms SB [2014] FWC 2104 (Hampton C, 12 May 2014) at para. 52.
[24] Georges and Telstra Corporation Limited [2009] AATA 731 (24 September 2009) at para. 23.
[25] Yu and Comcare [2010] AATA 960 (1 December 2010), [(2010) 121 ALD 583]; Devasahayam and Comcare [2010] AATA 785 (14 October 2010).
[26] Wei and Comcare [2010] AATA 894 (11 November 2010).
[27] Comcare v Martinez (No 2) [2013] FCA 439 (17 May 2013) at paras 73, 76.
[28] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 (Hatcher VP, 13 February 2015) at para. 102.