Reasonable Management Action

Reasonable Management Action – Transfer conversation wasn’t pressure to resign: FWC

An employee who claims she was made to feel incompetent and pressured to resign has failed to convince the Fair Work Commission that she was constructively dismissed.

The Bupa Dental receptionist told FWC Deputy President Clancy that after she was rebuked for not knowing instrument names and for failing to follow infection control protocols, her manager offered to help her transfer to a quieter clinic within the company.

About a week later, the employee said her manager asked if she’d found another job and said it would be “best” if she resigned. A month after that, following an incident involving a missing tool that made her look “incompetent” in front of a dentist, she resigned via text, saying she was “unfit” to stay.

The manager’s evidence was that during a casual discussion where the employee said her last practice was quieter, the manager raised the option of relocation to a smaller practice. When the employee asked about going to a non-Bupa practice the manager said in that case, it would be better to resign. After the employee said she wasn’t resigning the manager said that was fine, and later stressed any decision to leave was completely up to the employee.

Deputy President Clancy was unconvinced by the employee’s perception of the conversation and found it didn’t directly cause her to resign. Seven weeks passed between the transfer conversation and her resignation, he noted, and the text she eventually sent was three days after the tool incident, so not written in the “heat of the moment” or when the employee was “in a state of emotional stress or mental confusion”. Having found the employee’s resignation was voluntary, he dismissed her unfair dismissal application.

Tran v Bupa Dental Corporation Pty Ltd [2018] FWC 3237 (4 June 2018)

Originally published at HR Daily.com

One of the issues with complaints of bullying and unfair dismissal claims following performance management is that staff and managers don’t really understand the difference between reasonable management action and bullying and how decisions made by management are not necessarily unreasonable just because a person doesn’t like them.

The Fair Work Act s789FD (2) states,

‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’

The Safe Work Australia Guide to preventing & responding workplace bullying states;

“Workplace conflict

Differences of opinion and disagreements are generally not workplace bullying. People can have differences or disagreements in the workplace without engaging in repeated, unreasonable behaviour that creates a risk to health and safety.

Some people may also take offence at action taken by management, but that does not mean that the management action in itself was unreasonable.”

Reasonable Management Action – Lesson for employers

  1. Train all of staff to understand what reasonable management action (RMA) is and the difference between RMA and workplace bullying.
  2. Train your managers to understand how to conduct performance management and provide feedback to ensure that it is consistent with RMA
  3. Have a effective mechanism to investigate complaints that may result from management action

AWPTI can assist you in these areas with;
Training for managers – http://awpti.com.au/reasonable-management-action-training/
Training for staff – http://awpti.com.au/employee-training/
Workplace Investigations – http://awpti.com.au/workplace-investigations/
Reasonable Management Action Manual – http://awpti.com.au/reasonable-management-action-manual/

 

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

Warnings, termination, unfair dismissal – It is important if as an employer you are going to rely on past warnings when terminating a employee, that the warning/s are relevant to the reasons for termination, failure to do so could see the Fair Work Commission hold the the termination was unfair as it did in the case of Taylor v Qube Ports P/L t/a Qube Ports (See below)

“The issue of tolerance of poor behaviour or performance is among the most delicate issues that managers and HR managers will face with employers weighing up questions of fairness, due diligence, productivity and workplace harmony – as well as legal aspects.

One potentially awkward scenario is when an employee has received official warnings that are dated or have expiry dates, that the employee duly sees out, only for the sub-par behaviour or performance to return soon after these dates.

The question is, how viable is it for an employer to refer back to expired warnings or a letter dated older than six month as grounds for further action or even dismissal?

It is important to remember if terminating or disciplining an employee not to confuse the purpose of warning letters, for example;

  • Previous warning letters that relate to behavioural issues or misconduct cannot relied on in cases of poor performance and vice versa.
  • If an employee breaches a safety guideline, process or procedure you cannot rely on a previous warning letters for unrelated behavioural or poor performance issues.”

Excerpt from the AWPTI Reasonable Management Action manual – http://awpti.com.au/reasonable-management-action-manual/

Warnings, termination, unfair dismissal – Taylor v Qube Ports P/L t/a Qube Ports

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for relief from unfair dismissal

The applicant Mr Taylor was terminated for breach of a lawful and reasonable direction given by employer regarding loading of ship on 1 July 2016.

Evidence was provided that the applicant had received three prior warnings for threatening behaviour and failing to follow company procedure.

Mr Taylor submitted that on 1 July 2016 the breach was not deliberate and that he was under a lot of pressure that day. In response Qube argued that applicant’s submissions in relation to nature or quality of breach was irrelevant to question of valid reason and stated that that applicant knew about procedure and decided consciously and wilfully not to follow it.

The Commission found applicant breached company procedure and that he was familiar with it but as it was an isolated event and that it did not constitute a valid reason for dismissal and that the prior warnings were not relevant as they were dubious factually with dubious processes.

The Commission found in favour of the respondent that applicant’s previous warnings should be taken into account but only to the extent of whether or not the incidents (relating to the warning) had occurred but not relevance to the dismissal.  The Commission found dismissal was harsh, unjust or unreasonable, that reinstatement inappropriate. Compensation of $18,225.80 less taxation was ordered.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2238.htm

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/