[An] instruction is not the same thing as a disciplinary measure, and firmness does not equate to harshness.

Deputy President Alan Colman

Trainor v Council for Christian Education in Schools and others [2023] FWC 1272 (30 May 2023)

People managers are constantly dealing with ever evolving deadlines, targets and expectations. An area of ​​constant concern is people and especially when it comes to courageous or difficult conversations. If an employee is performing poorly, engaging with misconduct or just doing inappropriate behavior, the line between what is reasonable management action versus workplace bullying can seem to be blurred. A recent case of Trainor v Council for Christian Education in Schools and others [2023] FWC 1272 (30 May 2023) seems to demystify this further for those in human resources, people and culture and people management positions.

Workplace bullying

Workplace bullying is a serious issue that can have detrimental effects on an employee’s mental, emotional, and physical health. It can take many forms such as verbal abuse, physical intimidation or exclusion from social activities.

Some examples of workplace bullying include:

  • aggressive or intimidating behavior
  • threatening someone with work equipment
  • teasing or practical jokes
  • humiliating or belittling comments
  • sexual harassment
  • spreading rumours
  • using rosters to deliberately inconvenience someone
  • hazing or initiation ceremonies
  • excluding someone from work-related events
  • assigning unreasonable, demeaning or pointless work demands
  • withholding important information needed for effective performance
  • display offensive material
  • pressuring someone to behave inappropriately or even illegally

There are differing definitions of workplace bullying across jurisdictions in Australia but generally they are defined as conduct towards one or more persons which is:

  • unreasonable
  • repeated; and
  • creates a health and safety risk.

In some instances where the matter cannot be resolved internally within the company; an employee may seek legal action through the Fair Work Commission’s stop-bullying order provisions under section 789FD (1) of the Fair Work Act 2009 which provides for workers who believe they are being bullied at work to apply for an order to stop such behavior.

Reasonable Management Action

Reasonable management action is a defense against a workplace bullying claim.

In the workplace, managers are tasked with ensuring that employees behave in a manner consistent with company policies and procedures. This means that they must take action when an employee is not behaving properly or if their actions create a risk to health and safety.

Some examples of reasonable management actions include:

  • Providing constructive feedback on performance
  • Providing a reasonable and lawful direction
  • Informing a worker about work that is unsatisfactory
  • Letting an employee know about behavior that is inappropriate workplace behavior
  • Allocating work to an employee and controlling and directing how it needs to be carried out
  • Placing an employee on a performance improvement plan
  • Modifying an employee’s duties
  • Redeploying an employee
  • Expecting employees to acquire workplace goals and maintain workplace standards
  • Requesting an independent medical examination for an employee to assess whether they’re physically fit to fulfill the requirements of the role

Direction refers to instructions given by a manager regarding an employee’s duties or responsibilities. Performance feedback involves providing constructive criticism on an employee’s work performance. Disciplinary measures may include warnings or other forms of corrective action taken against an employee who repeatedly behaves unreasonably.

Firmness does not mean harshness

In the application to stop bullying order this application Trainor v Council for Christian Education in Schools and others [2023] FWC 1272 (30 May 2023) an employee claimed:

  • the manager behaved in a scoffing manner when the employee said she wanted to visit certain countries – saying “oh Maggie that is poor theology” keeping in mind the employer was a religious institute and the employee felt the comment amounted to religious discrimination
  • a miscommunication regarding some leave requests was belittling and intimidating
  • the employee in an open plan environment which was shared with another organization was overheard participating in a discussion about a 4 day week – and that a directive to “drop it” was threatening and she felt humiliated as she was the only one told off
  • an internal bullying complaint was made and that the chair of the board was involved and as such the policy was not followed
  • general unreasonable management action and micromanagement. Examples cited were a message from the manager following up on a
    the task assigned to the employee that was said to have ‘slipped off the radar’, when in fact the deadline was not for several months and the manager copied the CEO in all correspondence to the employee

She sought orders that required the employer to:

  • reimburse her medical expenses
  • reinstate sick leave she had taken because of the bullying conduct
  • remove the CEO from his position until his internal complaint is resolved

The Commission viewed the comments and email correspondence between the manager and employee were firm but respectful. For example, copying in the CEO to correspondence was reasonable considering the circumstances. It was also found that the policy was followed.

Findings:

[An] instruction is not the same thing as a disciplinary measure, and firmness does not equate to harshness.

Deputy President Alan Colman

Further, she had asked the manager to copy her messages to the employee, which “seemed prudent” in light of their issues, she said.

Being firm means setting clear expectations for employees and holding them accountable for their actions. It means providing feedback when necessary and taking disciplinary action when appropriate. However, it also means doing so in a respectful manner that doesn’t cross the line into bullying or harassment territory.

Harshness, on the other hand, involves using aggressive or intimidating tactics to get what you want from your employees. This can include making threats of termination or other consequences without first trying to understand why an employee might be struggling with a particular task.

To be clear actions by managers who are undertaking the following are not unreasonable:

  • being frank
  • expressing opinions
  • being firm
  • agree
  • following a policy
  • following a process
  • ensuring other people who are in “higher” positions are involved
  • taking disciplinary action
  • providing a reasonable and lawful direction

Give NB Employment Law a call, we offer an obligation-free consultation and are happy to help. Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.

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Written By

Jonathan Mamaril

Director

NB Employment Law

[email protected]

+61 (07) 3876 5111

About the Author

Jonathan Mamaril leads a team of handpicked experts in the area of ​​employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem of mitigating risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.

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[email protected]
+61 (07) 3876 5111

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