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Workplace Bulletin
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Is your management action posing a legal risk?
Monday, 2nd March, 2015, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: Why you shouldn’t jump the gun when initiating formal disciplinary action
Dear Reader,

Management action generally refers to the formal aspects of management interaction between a manager or supervisor and an employee. It includes actions such as conducting performance appraisals, managing underperformance and disciplining an employee for misconduct.
At times, management action can be mistaken for bullying. However, management action will not be bullying if it is reasonable. In other words, a performance management or disciplinary process that is carried out fairly, justly and transparently will be reasonable management action and will therefore not be bullying.
The management action must also be carried out in a reasonable manner – remember that even management action that is reasonable can be carried out in an unreasonable manner. For example, even if an employee is consistently underperforming and you are going through a reasonable performance management process with them, yelling at the employee in a meeting in response to their underperformance may be considered unreasonable.
If an employee makes an application under the Fair Work Act 2009 (Cth) anti-bullying scheme in response to your management action and the alleged bullying is found to be “reasonable management action carried out in a reasonable manner”, the FWC will have no jurisdiction over the application.
In today’s bulletin, Charles Power looks at a recent case in which the Fair Work Commission (FWC) examined the concept of reasonable management action in the context of an anti-bullying application.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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Case Law: Why you shouldn’t jump the gun 

when 

initiating formal disciplinary action

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
In James Willis v Marie Gibson (2015), the bullying complaint related to a disciplinary process initiated by the employer. The employee was issued with a letter headed “Disciplinary Process”, which set out numerous issues with his behaviour over a 4-month period. This included problems with efficiency, following direction, attitude and rudeness. The employer’s concerns appeared to relate to the fact that the employee had made complaints about the conduct of other staff members and workplace practices generally, which led to the view that the employee was “problematic”, “insufficiently subservient and respectful of authority” and “inappropriate”.
The FWC ruled there needed to be a proportionate causal relationship between the employee’s conduct, behaviour or performance and the relevant management action. In this case, the FWC observed that, while the employee’s behaviour may have provided the employer with a reasonable basis on which to undertake an “orthodox performance management process”, management action that threatened the security of the employee’s employment and caused him to feel threatened was not reasonable.
The employer’s disciplinary process was a stepped process that could potentially lead to termination of employment. The FWC believed this was not reasonably proportionate to the employee conduct the employer complained of because the conduct was not inconsistent with the performance of his duties. Further, the employee appeared to be successfully responding to management direction as far as it related to the performance of his duties, despite complaining about the way he was being treated and being critical of the workplace practices.
The FWC also observed that there appeared to be some “conflation”, or fusion, by the employer of the concepts of performance management and disciplinary action, which was further reflected in their policies and procedures.
Key lessons for employers
This decision highlights the need for a proportionate response to employee performance or conduct issues. A heavy-handed approach that is not justified by the gravity of the issues is unlikely to amount to reasonable management action. In particular, a disciplinary process that places an employee’s employment in jeopardy may be unreasonable when performance counselling is more appropriate.
The decision also indicates the willingness of the FWC, in the context of an anti-bullying application, to step into the employer’s shoes and second-guess the decisions made in relation to managing work performance and conduct.
Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook



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