Determining whether management action is reasonable requires an objective assessment in the context of the circumstances and knowledge of those involved at the time. The consequences that flowed from the management action taken, and the emotional state and psychological health of the worker involved, may also be relevant.
Reasonable management action may include: Performance management processes, disciplinary action for misconduct, informing a worker about unsatisfactory work performance or inappropriate work behaviour, asking a worker to perform reasonable duties in keeping with their job, or maintaining reasonable workplace goals and standards.
For management action to be reasonable there has to be some line of cause and effect between conduct, behaviour or performance of an employee and the relevant management action. Additionally, it has to be a reasonable and proportionate response to the attributes of the employee to which it is directed.
The aim of this assessment is to assist the investigator in determining whether a specific management action has been reasonable and not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general, consider the following:
- Management actions do not need to be perfect or ideal to be considered reasonable.
- A course of action may still be ‘reasonable action’ even if particular steps are not.
- Any ‘unreasonableness’ must arise from the actual management action in question, rather than the worker’s perception of it.
- Consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
- The impact on the employee cannot by itself establish whether or not the management action was carried out in a reasonable manner, and some degree of humiliation may often be the consequence of a manager exercising his or her legitimate authority at work.
- Unreasonable refusal of leave or requirements to work additional hours, do not on their own amount to bullying and harassment but like all behaviours must be considered carefully within the incidents raised in dispute.
The Fair Work Commission (FWC) has received around a thousand applications seeking for an order to stop bullying. There are, however, few cases where orders have been made. Nevertheless, the cases offer important guidance in understanding what the Commission considers to be reasonable management action carried out in a reasonable way. Down below are some examples according to the findings of the FWC regarding reasonable management action. To access more detailed examples please refer to the FWC Benchbook (Appendix X, pages 47-53 or visit)
- While it is preferable to have a documented and transparent performance management policy, the Commission may still find management action is reasonable in its absence.
- Employers must be able to justify their use of a performance management process or have some flexibility in their process, and it may be by reference to evidence that the process used was a common practice in the circumstances.
- Directing someone to go home for not wearing a prescribed uniform does not constitute bullying.
- Although the Commission found an applicant’s health and safety negatively impacted by what happened at work and found one instance of unreasonable behaviour, it was not satisfied there were ‘repeated’ incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner.
- Being criticised, picked on and singled out concerning poor work performance in front of other staff in a meeting, although being a regular weekly one, is not consider reasonable management action if the purpose of that meeting is other than discussing the worker’s performance.
- Failure to be promoted is not an unreasonable measure if all applicable guidelines have been followed.
- Caution should be exercised when considering whether payment of a discretionary bonus could be considered workplace bullying. An applicant’s belief that he should have been paid more did not constitute workplace bullying unless payment of the discretionary bonus was applied in a punitive manner.
- Although an employer’s performance management policy made no reference to performance improvement plans, it was a standard means to achieve improvement. Its use by the employer was reasonable as previous performance development assessments identified areas for improvement.
- A performance management process can be found not to be reasonable if there’s no evidence or documentation regarding a worker’s alleged underperformance.
- Having someone being monitored and mentored to improve performance is not, per se, unreasonable management action. However, if guidelines on monitoring and mentoring are not followed and feedback is not provided during the process, the action is not carried out in a reasonable manner.