A common challenge for investigators is bullying allegations in which the alleged conduct is argued to have been reasonable management action.
What is bullying?
The definition of bullying found in the Fair Work Act 2009 (Cth) is ‘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’, but specifically excludes ‘reasonable management action carried out in a reasonable manner’. This exclusion reflects the wider understanding that, parallel to the rights of employees to not be bullied at work, employers also have a legitimate authority to direct employees and to control their work.
What is ‘reasonable management action’?
While only two years old, the bullying jurisdiction of the Fair Work Commission (FWA) has already established some key principles in assessing such cases, beginning with those outlined by Commissioner Hampton in Ms SB  FWC 2104, and those of Hatcher VP in Amie Mac v Bank of Queensland and Others  FWC 774 .
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 the recent case of Ms Susan Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College  FWC 2308, those principles have been approved and applied in the FWC, raising some important issues for investigators to consider.
In May 2015, Ms Susan Purcell, a teacher of 20 years at St Aloysius College, claimed she had been bullied at work by Ms Mary Farah, Principal of the college, since 2013.
Ms Purcell brought 16 allegations of unreasonable behaviour, which could be broadly characterised as unreasonable management decisions affecting Ms Purcell. Other allegations concerned allegedly intimidating behaviour towards Ms Purcell, including glaring, ignoring, excluding.
DP Gostencnik found that four of the 16 allegations were proven. In considering whether these proven actions were ‘reasonable management action’, he applied the test of Hatcher VP in Amie Mac, and held that on the available evidence, as they “lacked any evident and intelligible justification”, they were found to be repeated unreasonable conduct rather than ‘reasonable management action.’ Therefore, Ms Farah had bullied Ms Purcell.
Firstly, it was found that Ms Farah’s decision to appoint the school business manager, Andrew Coates, as the second person to conduct Ms Purcell’s annual performance review (in addition to the deputy principal) lacked any “evident or intelligible justification”. Mr Coates was not a trained teacher, Ms Purcell had had recent “unpleasant dealings” with Mr Coates and this was known to Ms Farah. Furthermore, Mr Coates was not allocated to conduct any other teacher’s ARM in 2014 or at any other time. In addition the suggestion that Mr Coates was selected in part because he could comment on Ms Purcell’s role as an OH&S Representative was “errant nonsense”, as such functions were not within the purview of an employer to review in the context of an ARM.
Similarly, the requirement that Ms Purcell undertake an induction program upon her return from LSL was also found to have lacked “any evidence and intelligible justification”, and in fact treated Ms Purcell differently to other staff members. DP Gostencnik took into account the following factors: Ms Purcell was instructed to undertake the induction before a policy was introduced in September 2015 requiring returning staff members to undertake an induction; no other staff member (returning from short term leave), before Ms Purcell, had been required to undertake induction; and the induction documentation clearly indicates that it is aimed at “new staff” yet Ms Purcell had been employed at the College for approximately 20 years. It was also noted that the changes within the college during the 6 months of her LSL were minimal and could have simply been communicated to Ms Purcell in short written or oral form upon her return.
Finally, Ms Purcell was also assigned a mentor upon her return from LSL and this was said to be a deliberate action by Ms Farah to target Ms Purcell. DP Gostencnik held that Ms Farah was responsible for the decision to allocate a mentor to Ms Purcell, and that whilst it was ‘management action’ there was no evident or intelligible justification for the decision. The relevant policy noted that mentors were designed to assist new staff members, however Ms Purcell was not a new staff member, the mentor allocated was a much less experienced teacher, with a lesser period of service at the College, less experience in teaching English and was not teaching the subject at the same level as Ms Purcell. Therefore the appointment was likely to humiliate and distress Ms Purcell.
Lessons from the decision
1. In assessing whether management actions and decisions are unreasonable the established test appears to be whether there was any ‘evidence or intelligible justification’ for the decision or action.
2. Responsibility for decisions or actions implemented by a third party may be attributed to a manager if they can be shown to have tacitly accepted or condoned them, in particular if they are in an overall position of authority (as was the case here).
About Tom Henry
Tom began his career as a commercial lawyer where he learnt the value of clear analytical thinking, concise and powerful communication skills, excellent client service and effective case management.
Since joining Worklogic in 2011, Tom Henry has completed a large number of challenging, highly technical investigations in a variety of sectors, and is in demand as a speaker and presenter.
Worklogic also offers training courses on undertaking effective workplace investigations. Our full day workshop “Conducting Workplace Investigations” will be held in Sydney on 19 October, in Brisbane on 15 November andMelbourne on 24 November from 9am to 5pm. Register now for just $750 per person (exclusing GST). If you have any questions about these workshop, please contact Danielle Calder or call 03 9981 6500.
If you would like to discuss any matters relating to workplace complaints and investigations, please contact Tom on 03 9981 6500 or via email at email@example.com for an obligation free, confidential conversation.
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