When Tough Turns Toxic: Recognising the Line Between Management and Bullying

Bullying is one of the most overused and misunderstood terms in employment law.

Employers and their managers regularly voice concerns that the term has become weaponised. But has it? To what extent does genuine but firm management still have its place in a contemporary workplace?

The Law:

Bullying is defined in section 789FD of the Fair Work Act 2009 as "(1) repeated and (2) unreasonable behaviour that creates a (3) risk to health and safety.” This definition is mirrored in Safe Work Australia's Guide for Preventing and Responding to Workplace Bullying.

Of course, how the law is interpreted is what really counts. That is why we regularly review cases showing how FWC and other courts and tribunals have applied the definition to allegations of bullying.

In summary, the key themes for the three elements of bullying are:

1. Unreasonable Behaviour - For behaviour to be unreasonable the action itself (i.e. the ‘What’) or the way it is carried out (i.e. the ‘How’) must be unreasonable. Legitimate performance management may be uncomfortable but will not be unreasonable. Factors that demonstrate legitimacy include:

• alignment with company policies, contracts, or laws

• taking into account individual circumstances – noting that unusual management action isn’t automatically unreasonable

2. Repeated - The unreasonable behaviour must be repeated. A ‘once off’ will not meet the definition. There is no exact number of time or time frames when the behaviour must occur. All that has to happen is the most recent occurrence and the previous infringing behaviour must have a sufficient nexus.

3. Risk to Health and Safety - The final element requires proof that the repeated unreasonable behaviour poses a genuine risk to health and safety. A mere breakdown of work relationships alone does not show this. The risk to health and safety must be real and not hypothetical. The severity, frequency and duration of the behaviour must be assessed to determine whether this behaviour was minor or a more genuine risk which would meet the threshold.

Our retainer clients can get access to case summaries where we assess each of the three elements. If you would like to get access to the documents we provide to our retainer clients, please contact us.

Our Take:

Genuine but firm management still has its place in a contemporary workplace.

The cases show a number of common themes emerging across cases applying the bullying definition. We consider that FWC and other courts and tribunals are demonstrating greater latitude to managers and a genuine understanding of the highly emotional environment they operate in. This has created a level of tolerance which comparatively, we consider the same authorities are unwilling to show in matters such as sexual harassment – which is becoming almost a ’strict liability’ offence.

Action Items:

• Train your managers how to deliver effective one on one meetings and provide feedback – this is still our ‘go to’ for almost every ongoing workplace dispute we see between a manager and their direct report

• Train your employees what they can reasonably expect from their managers so that they understand that not getting what they want or feeling uncomfortable is not the same as bullying

• Provide guidance to management (ie giving real examples) regarding the differences between reasonable and unreasonable conduct

• Ensure workplace policies are structured to prevent any allegations that fair processes may be bullying – including using use more examples – it shouldn’t be a ‘guessing game’

• Create clear and discrete channels of communication to report bullying behaviour should it occur

Edge Legal

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