If you are considering a claim against your employer because you believe you have been bullied at work, there is a qualification on the definition of whether you are bullied at work.
A worker is bullied at work if an individual (or group of individuals) repeatedly behaves unreasonably towards the worker (or a group of workers) and that behaviour creates a risk to health and safety¹.
You are not bullied at work if reasonable management action has been carried out in a reasonable manner².
Examples of what amounts to reasonable management action include:
• Performance appraisals;
• Ongoing meetings to address underperformance;
• Counselling or disciplining a worker for misconduct;
• Investigating alleged misconduct; or
• Refusing an employee permission to return to work due to a medical condition.
The rationale behind the “exclusion” to the definition of a worker being bullied at work was explained by the Parliament that employers need to be able to make necessary decisions to respond to poor performance at work or if necessary to take disciplinary action and also direct and control the way work is carried out. It is reasonable for managers and supervisors to give fair and constructive feedback on a worker’s performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that considers the circumstances of the case and do not leave the worker feeling (for example) victimised or humiliated.
The test to determine whether management action is reasonable is an objective one. The test will involve a consideration of the circumstances leading up to the management action being taken, the circumstances while the management action was being taken and the consequences flowing from the management action. Any “unreasonableness” must arise from the actual management action in question, not the worker’s perception of it. Consideration must also be given to whether the management action involved a significant departure from established policies or procedures, and if so, whether that departure was reasonable in the circumstances.
¹Section 789FD(1) of the Fair Work Act 2009 (Cth) (Act)
²Section 789FD(2) of the Act