A recent case in the Fair Work Commission, Ms Anne Pilbrow  FWC 2458 (26 May 2020), has revisited the scenario where there is a need to identify what is reasonable management action (even if imperfectly carried out) and what is bullying, as defined in the Fair Work Act 2009.
The case also demonstrates that where there are failures by an HR department that are very substantial, these can place the organisation at substantial risk.
Ms Pilbrow was a nurse returning to work following an injury to her finger. On her return, she alleged her direct manager, Nurse Manager, Ms Edmondson, had subjected her to bullying behaviour, and Ms Pilbrow applied for a stop-bullying order in the Commission.
The applicant alleged that a number of behaviours by Ms Edmondson amounted to bullying, including two occasions of alleged verbal ‘berating’, and unreasonable enquiries about her time sheets.
Ms Pilbrow also alleged that HR staff failed to respond adequately to her complaints about Ms Edmondson’s behaviour, which she characterised as bullying.
What is reasonable management action and what is bullying?
The Fair Work Act 2009 (Cth) defines bullying as ‘repeated unreasonable behaviour by an individual, or a group of individuals, towards a worker or group of workers that creates a risk to health and safety’.
The definition of bullying however specifically excludes ‘reasonable management action carried out in a reasonable manner’.
The Commission’s definition of this exemption is now reasonably settled, with the comments of Commissioner Hampton in Ms SB  FWC 2104, and Hatcher VP in Amie Mac v Bank of Queensland and Others  FWC 774 now applied in a number of cases [See Ms Susan Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College  FWC 2308.]
In Amie Mac, VP Hatcher stated that for management action to be unreasonable it must be proven to have “lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.”
In Ms Anne Pilbrow, Commissioner Susan Booth followed these principles in finding that the alleged behaviour by the Nurse Manager did not amount to bullying, in that the behaviours, while not ideal in their execution, were in each case ‘reasonable management action’, including the management of valid performance concerns. While she found the Nurse Manager had expressed herself in a less than ideal way and her conduct and communication could have been done better, her conduct did not amount to bullying as defined by s789FD of the Act.
Discussing both of the alleged examples of ‘verbal berating’ in turn, the Commissioner found that even though the delivery may have been imperfect, the underlying reason in each case was logical and necessary. For example: “Objectively considered, requiring timely breaks was a reasonable request in the context of a busy radiology practice…”.
In relation to the allegation that Ms Pilbrow was berated in a one on one meeting, the Commissioner concluded on balance that, while the performance meeting “was clearly not best practice” and “what was said could have been better put” the key issue was that “it raised performance issues that were appropriate to be raised in the circumstances.”
The Commissioner concluded that, citing the principles set out in in Mac v Bank of Queensland Limited and Others  FWC 774: “The task of this Commission is to objectively assess what happened, and whether it was done reasonably, not whether it could have been done more reasonably or differently.”
Strong criticism of HR
However, Commissioner Booth was extremely critical of the failures of the HR department to oversee Ms Pilbrow’s return to work, which she said had “potentially reached the required level of unreasonableness” according to the definition of bullying in the Act. The Commissioner’s comments indicate that, if Ms Pilbrow had made a bullying claim against any specific individuals within HR, it may have been successful. It was only the fact that a bullying order can only be made against ‘an individual or group of individuals’, not an organisation’s HR department, that saved the HR department in this case.
Ms Edmondson had referred Ms Pilbrow’s concerns to HR, and the Commissioner noted that on the evidence, it was in fact HR, rather than Ms Edmondson, who had failed Ms Pilbrow in relation to the following oversights:
- refusal to assign light duties to her consistent with her medical requirements,
- lack of consultation about allocation of duties at an alternative work location, including being given 30 minutes notice to attend the new workplace,
- poor responses to her concerns about changes to her work location and duties, and
- limited training opportunities.
In these circumstances, HR should have:
- activated an injury management plan to ensure Ms Pilbrow’s duties were consistent with her medical requirements, including allocating light duties,
- consulted and provided support to Ms Pilbrow through the change in her work location,
- provided reasons for any changes to her work arrangements and responded to her concerns quickly, and
- responded quickly to her complaint about alleged bullying.
Lessons from the decision
1.In assessing whether management actions are unreasonable, managers are not expected to be perfect. As long as there is a logical reason or need for the decision or action from an organisational point of view, imperfection in tone or behaviour will not, unless it is serious or deliberate, normally amount to bullying.
2. HR departments must be proactive in ensuring that employees are not exposed to unreasonable behaviour or a risk to their mental health, particularly in situations where it is not ‘business as usual’, such as an employee’s return from injury. Failure to do so not only places the organisation at risk of liability for bullying (as well as potential workers’ compensation claims), but also risks individuals within HR being the target of a bullying claim, even where the alleged unreasonable behaviours are ‘sins of omission’ rather than commission.
Register now for our free lunchtime webinar on June 16 by Director Jason Clark, “Key take-aways for employers from the latest bullying cases”. Jason will provide an update on the most recent bullying cases and explain what the findings of each case mean for employers.
About Jason Clark
Jason Clark is a Worklogic Director. Jason has extensive experience as a workplace investigator, investigating a range of issues including fraud, bullying, harassment and sexual misconduct. He has also assisted numerous organisations develop strategies to minimise poor behaviour and encourage a positive workplace culture.