There is a clear difference between bullying and reasonable management action outlined in the Fair Work Act. Essentially, if management is carrying out reasonable action in a reasonable manner it is completely within their rights.
For example, if a manager is singling out an employee unnecessarily and micro-managing and criticising them, that could be classed as bullying. If a manager is working with an underperforming employee in accordance with an agreed performance improvement plan and the key improvement objectives have not been met, then a subsequent dismissal of the employee could be classed as reasonable management action.
There are three important steps that must be followed to ensure that the proper processes have been taken which we will outline below.
The behaviour must be management action
Instances of bullying, harassment, discrimination, sexual harassment and other serious misconduct are never considered to be reasonable management action.
What we are talking about here are reasonable actions that managers can undertake as part of their duties for the betterment of the business and all employees. If a manager appoints an employee over another employee for a promotion or pay rise based on legitimate selection and assessment criteria, that is perfectly acceptable. Conducting performance reviews and dealing with interpersonal conflicts in the workplace is perfectly acceptable as well.
There are many reasonable actions a manager can take including counselling, demoting, transferring, retrenching, disciplining or ultimately dismissing an employee if they are not performing or have engaged in misconduct. If the action is undertaken in a reasonable management manner, it is protected under the Act.
It must be reasonable for the management action to be taken
There needs to be a reason for the management action to be carried out, such as sub-par performance, regular and consistent performance reviews, any form of misconduct or breaches of employment contracts or other reasonable business grounds (such as promoting a person over another who is better qualified).
The management action must be carried out in a manner that is reasonable
Communication is key in this process. To avoid complaints and potential breaches of various workplace regulations, it should be made very clear why any management action is being carried out including all the reasons and incidents involved. You should also outline expectations in the future and how a resolution can be achieved. This way, if there are future incidents then this is all documented and clearly communicated to the employee.
Timing is a critical component as well. Asking to speak to an employee about disciplinary matters at the end of the day on a Friday or directly after they return from leave would not be considered reasonable. It is also not reasonable to advise an employee that they will be disciplined, but then keep changing the date and time, potentially leading to unnecessary mental health impacts to the employee.
These processes should always include two-way dialogue and be completely transparent. It is important to come into these discussions with an open mind and listen to what the employee has to say, as there could be legitimate reasons behind the issues that may necessitate appropriate support that will ultimately benefit all parties.
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