Business managers may have a difficulty in knowing what to do when there has been a report of bullying in their workplace. It can be hard to know when to step in, and what, if any, bullying procedures a business should have in place.
Under the Act, bullying is unreasonable behaviour towards a worker which creates a “risk to health and safety”. The conduct is not bullying, however, if it is “reasonable management action carried out in a reasonable manner”. The difficulty is determining whether business management has acted in a reasonable manner, and what steps they should take when a complaint has been made.
In a recent case an employee complained about the employer’s conduct in responding to a bullying complaint made against her. She claimed her employer did not support her during and after the claim was made. In this case, it was held the employer’s actions were reasonable.
However, the Fair Work Commission found that if an employer were to conduct an investigation into bullying in a grossly unfair manner, this could be considered unreasonable conduct. It also noted that a manager could be subject to bullying by employees that he or she supervises.
This raises questions in regards to what is “reasonable management action” and what businesses should do when a bullying complaint is made in the workplace.
The Fair Work Commission discussed what “reasonable management action” is, and found:
- It is an objective test;
- It is not a question of whether the person alleging bullying perceived the conduct to be unreasonable;
- The test is not whether the conduct could have been undertaken in a more reasonable manner;
- The question is whether the conduct of management as a whole, was reasonable in the circumstances.
Finally, the Fair Work Commission stated that it is relevant whether the action of management involved a significant departure from their established bullying guidelines.
These comments can help businesses to plan what to do to correct bullying behaviour by management or employees, and any bullying guidelines and procedures they should have in the workplace.
In light of this decision, the challenge for businesses is to minimise the risk of bullying in the workplace and to work out how to respond when there has been a complaint. Employers should consider reviewing their bullying guidelines and policies, to ensure they are set out in a way that ensures bullying complaints are dealt with in a way that is transparent and thorough.
To discuss this matter further contact a member of our Employment Law Team. How can we help?