Bullying or "reasonable management action"?
The Australian Fair Work Commission has declined to make a stop bullying order for a manager who claimed that she was bullied by her subordinate. In also finding that the employer’s investigation into the matter was “the only reasonable and prudent response”, the Commission has set a line between “bullying” and “reasonable management action” in this new jurisdiction.
The applicant, who the Commission agreed not to name in its judgement, alleged that she was bullied in the form of complaints (of bullying) made against her by subordinates, the company’s decision to investigate those complaints, the company’s failure to prevent similar conduct happening and other alleged “rumour” and “harassment” occurring in the workplace.
Commissioner Hampton was not satisfied that the bullying complaints were part of a coordinated campaign against the manager and found that, while the allegations against the manager were “very minor”, it was entirely reasonable for the employer to investigate those complaints. He said the test is whether management action is reasonable but “not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.
The employer engaged a law firm to conduct an external investigation and resisted requests to provide a copy of the investigation report to the Commission on the basis of legal professional privilege, although the results of the investigation were provided. As a result, Commissioner Hampton placed no weight on the outcomes of the investigation but considered again the conduct of the relevant parties – noting that there was some tension between his findings and those of the external investigator.
The decision demonstrates that employers must ensure that management responses to bullying complaints are reasonable and also that action, such as workplace investigations, are carried out in a “reasonable way”.
Tips for employers
Given the timeframes for the Commission dealing with a stop bullying application, swift and decisive action is required to investigate such complaints;
A thorough but fair investigation is required to be conducted ‘in a reasonable way’
The somewhat vexed question about relying on legal professional privilege over workplace investigations remains open to the extent the findings are relied upon - the belt and braces approach is an independent, transparent investigation, you can rely on.
Aurora Workplace Law specialises in workplace investigations and provides training and legal services across workplace legal issues. For more information about this decision and the impacts for your organisation, refer to our website www.auroraworkplacelaw.com.au or contact us on (02) 9958 2516.
