Is it Bullying? ….. or is it Reasonable Management Action?

Updated workplace bullying laws have been in place since January 2014 but there is still some confusion over how they apply. The Fair Work Commission deals with approximately 60 anti-bullying applications a month. All business sizes and industries are represented, ranging from employers will less than 15 workers, through to businesses with 100+ employees.

Bullying can effect operations in a number of ways including impacting the bottom line by increasing staff turnover and lowering productivity. The first step to understanding if your business could be at risk is to be aware of what is considered bullying and what is not.

Bullying at work occurs when:

  • A person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; AND
  • The behaviour creates a risk to health and safety (note: this can be the risk of psychological injury).

Behaviours which, if they fit the definition above, would be classified as bullying may involve, for example, any of the following types of behaviour:

  • Aggressive or intimidating conduct;
  • Belittling or humiliating comments;
  • Spreading malicious rumours;
  • Teasing, practical jokes or ‘initiation ceremonies’;
  • Exclusion from work-related events;
  • Unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level;
  • Displaying offensive material; and/or
  • Pressure to behave in an inappropriate manner.

A single incident of any of the above or general workplace conflict and disagreement would not be considered bullying. If either of these situations do arise they may escalate into bullying behaviour and should be taken as an indicator that management action is required.

Issues involving violence, sexual harassment, discrimination and victimisation are also not considered bullying as they are dealt with under separate legislation and jurisdictions.

Bullying also does not include reasonable management action carried out in a reasonable manner.  The following are examples of what may constitute management action:

  • Conducting performance appraisals;
  • Conducting ongoing meetings to address underperformance;
  • Counselling or disciplining a worker for misconduct;
  • Modifying a worker’s duties including by transferring or re-deploying the worker due to genuine business needs;
  • Investigating alleged misconduct; and
  • Refusing an employee permission to return to work due to a medical condition.

Remember to follow the legislative requirements set out in the Fair Work Act, as well as applicable Modern Awards or enterprise agreements to ensure management action is reasonable.

For you to avoid bullying claims, a workplace bullying policy needs to be in place. Once developed, it is important to train your staff in this policy as well as ensuring your management team have the skills to manage a bullying complaint should one arise. Training managers in the correct way to manage under-performance or other workplace issues is one way in which you can protect your business from a bullying claim. Dealing with under-performance quickly and fairly can often stop issues becoming more serious over time and allow you to get the best out of your workers.

For help developing a compliant policy, training your workers or for any other questions, contact us…