The Fair Work Act (the Act) defines workplace bullying as repeated unreasonable behaviour from an individual or group towards another individual that creates a risk to their health and safety.

Many resources for employees suggest the first course of action when being bullied is to notify a supervisor, manager, or business owner so they can investigate or step in. But what if the repeated behaviour is coming from a manager or business owner?

Section 789FD (2) of the Act states that behaviour towards a worker or group of workers will not be considered bullying if it is reasonable management action carried out in a reasonable manner. 

What is Management action?

Management action is usually taken to address issues with an employee's conduct or performance and could include performance appraisals, meetings to address underperformance, investigating alleged misconduct, or disciplining a worker for misconduct.

Essentially, employers have rights and obligations to take appropriate management action and make management decisions when employees are underperforming or where disciplinary action is necessary.

For example, it is reasonable for employers to allocate work and managers and supervisors to give constructive feedback on performance. These actions are not considered bullying if they are carried out in a reasonable manner that takes into account the circumstances and does not leave the employee feeling targeted or humiliated.

An informal or spontaneous conversation between a manager and a worker may not be viewed as management action, even if issues such as performance or conduct are raised.

When is management action reasonable?

Determining whether management action is reasonable requires an objective assessment of:

  • the circumstances that led to and created the need for management action
  • the circumstances while the management action was being taken
  • the consequences that flowed from the management action.

The test is whether the management action was reasonable and lawful, not whether it could have been undertaken in a way that was 'more reasonable' or 'more acceptable'.

It is important to note that any unreasonableness must arise from the actual management action in question, not the employee's perception of it.

If an employee is underperforming in their role, meetings to address underperformance would likely be reasonable whereas standing over an employee's shoulder for regular or extended periods to observe their work would likely be considered unreasonable management action by the Fair Work Commission.

What is a reasonable manner?

For the exemption in the Act to apply, the management action must be carried out in a reasonable manner. While an employee may feel humiliated by a manager exercising their legitimate authority, the impact on the employee cannot by itself establish whether the management action was conducted in a reasonable manner.

Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances that led to the requirement for action, the way it affects the worker and the circumstances in which the action was implemented, as well as any other relevant matters.

For example, in the stop bullying application of Ms A [2018] FWC 4147 , Ms A complained of bullying conduct consisting of excessive emails sent continuously by her employer and their content. The Commission accepted that while many of the issues raised by Ms A's employer in the emails were reasonable, the manner, frequency and timing of the emails did not constitute reasonable management action.

The intention of management action should be to improve work performance, not as a tool to target or dismiss an employee. If you believe you have been targeted by unreasonable management action, seeking advice from an employment lawyer is recommended.