Workplace Bullies and the Reasonable Man
The new Anti-Bullying legislation has created the need for employers (including management and HR professionals) to understand what constitutes “Reasonable Management Action” and to then ensure that such action is “carried out in a reasonable manner”. This is because the Anti-Bullying legislation excludes from the definition of bullying behaviour which are classified as “reasonable management action carried out in a reasonable manner”.
A recent case has provided some judicial commentary on what constitutes reasonable management action carried out in a reasonable manner. The May 2014 judgement of Commissioner Hampton details three elements that must be present for a reasonable management action to be found which include:
- that the action is a management action;
- that it must be reasonable for the management action to have been taken; and
- the management action must have been carried out in a reasonable manner.
The test will be an objective assessment and Commissioner Hampton indicated that considerations might include the circumstances that led to the action and the consequences that flowed from the action.
It is important to remember that the action only needs to be reasonable and does not need to have been the most reasonable or most acceptable action. Generally this means that the action does not need to be perfect or ideal, but the action must be appropriate. The case highlighted that an action will be considered unreasonable if the action is objectively considered irrational, absurd or ridiculous.
Another important consideration is whether the action involved a significant departure from established policies and procedures and if so was it reasonable to do so.
A large portion of the bullying claims lodged in the Commission deal with situations where an employee has been (or still in the process of being) performance managed. It is important for managers who take management action as a part of their role to consider their actions in line with the case law and legislative requirements or otherwise risk being caught out as the unreasonable man.
If you are faced with a situation which could amount to workplace bullying contact our experienced employment law team to help guide you through this difficult process.Back