Business Chamber Queensland members often raise concerns about taking reasonable management action where an employee claims to have been bullied. This often arises where those same employees have made a claim for Workers Compensation citing a work-related injury or illness. The following article discusses the differences between bullying and reasonable management action, and what an employer can do to assist their Workers Compensation insurer to determine the claim. 

What is workplace bullying? 

Workplace bullying involves behavior directed at one or more individuals that is unreasonable, repetitive, and poses a risk to the health and safety of the employee(s) involved. 

While the specific definition of workplace bullying can vary across different jurisdictions, three core elements are commonly recognized as necessary to establish it: 

• Unreasonable conduct 

• Repetition 

• Risk to safety 

One common exception to the definition of workplace bullying is it does not include reasonable management action conducted in a reasonable manner. 

Understanding unreasonable behavior in workplace bullying 

Unreasonable behavior is assessed using an objective standard, meaning it is judged by what a reasonable person, considering the circumstances, would see as unreasonable. This means the personal views of the alleged bully and the victim are not directly relevant in determining whether the behavior is unreasonable. 

Courts consider the full range of human actions and behaviors when assessing workplace bullying. There is a recognised need for caution against creating a workplace culture that is overly sensitive to every minor infraction or mistake. 

As noted in Mrs Karen Harris v WorkPac Pty Ltd (U2013/5420) i from the Fair Work Commission: 

“The Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities – not divine angels. Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is “guilty of bullying” and “gross misconduct”. 

Determining repeated behavior in workplace bullying 

For behavior to be considered repeated, there must be more than one instance of unreasonable conduct, though it does not need to be the exact same behavior each time. 

Additionally, two or more instances of unreasonable behavior directed at the same employee may not, in themselves, be severe enough to establish a pattern of repeated behavior constituting workplace bullying. 

When workplace bullying poses a risk to health and safety 

A risk to health and safety involves exposure to the possibility of injury or harm, including psychological damage. There must be a real risk, with a clear connection between the behavior and the potential harm to health and safety, although the bullying behavior does not need to be the sole cause of the risk. 

Workplace bullying vs. reasonable management action 

Reasonable management action, taken in a reasonable way, is not considered workplace bullying. 

Examples of reasonable management actions include: 

• Conducting performance reviews 

• Holding meetings to address underperformance 

• Taking steps to address potential misconduct 

This distinction aims to preserve the rights of employers to take necessary action against employees, provided the actions are justified and carried out reasonably. 

This is a significant consideration in practice, as employers accused of bullying often argue they were attempting to correct or discipline an underperforming employee. 

When is management action considered reasonable? 

Reasonableness is determined objectively. An employee must show the management action lacked proper justification, such that a reasonable person would view it as unreasonable given all the circumstances. 

For management action to be considered reasonable, it does not have to be the best or most preferable approach. There can be multiple ways to act reasonably. Simply being imperfect does not make the management action unreasonable. 

It is also not sufficient for the employee to feel humiliated or embarrassed by the management action. The subjective impact on the employee does not, by itself, determine whether the management action was reasonable. 

When is management action carried out reasonably? 

Not only must the management action itself be reasonable, but it must also be executed in a reasonable manner. Both elements of reasonableness are crucial. An employer may have legitimate reasons to act against an underperforming employee, but the method of implementation must also be reasonable. 

For employers facing accusations of workplace bullying or inappropriate treatment, it is not enough to simply point out the employee’s subpar performance. Employees who are underperforming or non-compliant still retain the right to work in an environment free from bullying. 

Whether management action is considered to have been carried out reasonably will depend on several factors, including: 

• The specific circumstances of the worker 

• Whether established workplace policies and procedures were followed 

• Whether the action was taken in an appropriate and timely manner 

Employee rights  

Employees are entitled to work in an environment free from workplace bullying, regardless of their own behavior. An underperforming employee can be disciplined or placed on a performance improvement plan, provided such actions are justified and carried out reasonably. If not, it could be considered workplace bullying. 

If an employee experiences workplace bullying, they may apply for a stop bullying order through the Fair Work Commission, depending on their employer. 

If the employee has a work-related illness or injury as a result of Workplace Bullying, they may seek to make a claim for Workers Compensation. 

Objecting to a workers compensation on the basis of reasonable management action carried out reasonably 

If an employer does not believe an employee has been subjected to bullying, but instead they have a been injured as a result of Reasonable Management Action Carried Out Reasonably, then a claim for Workers Compensation should not proceed. 

If a claim is made where the employer believes the injury is a result of Reasonable Management Action Carried Out Reasonably, they should notify their insurer as soon as possible with the details relevant to your assessment. The employer must be prepared to share information that may be sensitive that will likely lead to the injured worker learning the details of the employers objection to their claim. Unfortunately, this is mostly unavoidable as the employee needs to be able to respond to the employer’s objection with all relevant information to be relied upon by the insurer. The information provided should address each of the points above in turn to assist the insurer in their decision making. 

Employers should act fast to provide their objection and relevant supporting information, as delays could result in the claim being accepted – leading to the employer needing to take an alternative step of seeking a review of the decision.