We recognise the bully on the big screen. Biff from Back to the Future; Nelson Muntz from The Simpsons; Draco from Harry Potter; the mean girls from Mean Girls. Their actions are ongoing, deliberate and harmful. But do we always recognise bullying in the workplace? Are we clear on what ‘management action’ is and when it crosses the line to become bullying?
‘Management action’ refers to the formal interaction between a manager and an employee – a performance appraisal, giving constructive feedback, disciplinary action, etc. It does not include the informal, day-to-day interaction. Under the Fair Work Act, ‘management action’ will not amount to bullying if it is reasonable and carried out in a reasonable manner.
While the term ‘reasonable’ may seem straightforward, the legal line between ‘reasonable management action’ and bullying can be very fine. And if you inadvertently cross the line, you could be facing an expensive bullying claim.
To ensure that all ‘management action’ is carried out in a fair, transparent and just manner, keep the following things in mind:
1. As an employer, you have the right to take management action, including:
- giving fair and constructive feedback on a worker’s performance;
- taking disciplinary action if necessary; and
- making decisions to respond to poor performance.
2. The following factors are used to determine whether management action is reasonable and carried out in a reasonable manner:
- the circumstances that led to the management action being taken;
- the manner in which the management action was taken; and
- the consequences that followed the management action.
3. The decision of whether management action is reasonable will be made objectively. It will not be based on the worker’s perception of it.
4. Management action is more likely to be regarded as reasonable if established policies and procedures are followed. It is therefore best practice to ensure that your policies and procedures are kept up-to-date.
5. A court will look at the overall conduct surrounding the management action. This means that a course of action may still be ‘reasonable management action’ even if particular steps are not.
6. Management action does not need to be perfect to be considered reasonable, but it must be lawful and not irrational, absurd or ridiculous.
7. Be cautious that management action may create a risk to health and safety, and may therefore expose you to liability under health and safety legislation, even if the action is reasonable in the circumstances.
*Source – Portner Press – Health & Safety Bulletin
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