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/

 

Workplace Investigation getting it right for first time every time – Recently an article appeared in the Brisbane times that alleged that a cadet journalist was dismissed unfairly, the headline reading – ‘This is disgusting’: Seven Network under fire after cadet dismissed”Link to article

Please note, this post is based on the information contained in the article no judgement is made on the validity of the content and to our knowledge the allegation made against Channel Seven have not been tested. Channel Seven has since denied the allegations and the matter was settled out of Court in February.

This article considers the general principals of procedural fairness. regardless of whether or not Channel Seven did the right things here are some tips about procedural fairness in dealing with misconduct matters.

Some of the issues raised in the article included;
“When Ms Taeuber asked for the statement of the person making the allegations of bullying against her, the HR manager said: “OK, so how do we want to plan your exit, Amy? I do understand that we don’t want to make it humiliating for you.”

This may fall under the FWA procedural fairness guideline – the right to know

The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;

s387 (b) whether the person was notified of the reason for the allegation of misconduct.

It is important that a person accused of wrongdoing or misconduct has the right to know what it is alleged that they have done. This should be done at the earliest possible opportunity in as much detail as is reasonable.

The right be heard or to respond to an allegation/complaint or performance issue is referenced in the Fair Work Act 2009 – s387 – criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

s387 (C)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

When a complaint or allegation is made against an employee or that an employee’s behaviour or performance is unsatisfactory, that employee has the right to respond or put their side of the story or version of events forward.

In the case of a complaint or allegation, after the employee has been advised of the issue they must be given sufficient time to consider the complaint before being asked to respond. The time will depend on the seriousness and perhaps the number of issues. We recommend putting yourself in their place and provide sufficient time.

The article also stated that;

“The audio recording puts a spotlight on Seven’s treatment of its employees. Early in the meeting, the HR manager had ordered Ms Taeuber’s support person, chief of staff Lesley Johns, leave the room. When Ms Johns began to protest, she was cut off.”

This may fall under the FWA procedural fairness guideline – the right to have a support person present

The right to have a support present during interviews that may result in disciplinary action being taken against the employee is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

s387 (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Workplace Investigation getting it right for first time every time – The investigation into workplace misconduct and complaints requires experience and expertise in understanding of the process, investigative interviewing, procedural fairness, the rules of evidence and relevant legislation. If you don’t have this or the time to conduct a thorough investigation we recommend one of three options;

  1. Call an expert – http://awpti.com.au/ or contact us on 02 9674 4279 or enquiries@awpti.com.au
  2. Get some training, we highly recommend – http://awpti.com.au/investigation-training/
  3. If you still want to ‘Do it Yourself’ without training we have a number of products that can assist – http://awpti.com.au/hr-products/

Don’t take the risk of getting in wrong, it can be costly.

AWPTI – Workplace training Sydney and through-out NSW and national wide
Misconduct training, bullying training, harassment training & sexual harassment training, dispute & grievance resolution training, management training.

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

workplace training Sydney, workplace training NSW, workplace training QLD, workplace training Victoria, misconduct training, bullying training Sydney, Workplace training harassment, sexual harassment training, grievance training, management training

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators.

Why is Reasonable Management Action training important?

Complaints against managers by employees are often as a result of the employee claiming that they were bullied and/or harassed by their manager.

In general, such complaints are either as a result of;

  1. Actual bullying and harassment
  2. Management action involving performance management or feedback
  3. Other forms of management action or supervision.

Complaints against managers for sexual harassment, discrimination or other forms of misconduct are generally more specifically related to an incident or series of incidents or behaviours.

To assist managers and HR professionals we have created the Reasonable Management Action manual that is concise and easy to absorb as we realise that managers and HR professional do not have all day to read long winded publications.

The manual is not a theoretical publication but rather a guide to be used when dealing with employees and conducting of performance management. For more details or to order – http://awpti.com.au/reasonable-management-action-manual/

As the understanding of Reasonable Management Action is such a critical area for managers and HR professionals, AWPTI offers options in addition to this manual.

Face to Face Training with AWPTI Principal Phil O’Brien – The Management Essentials program is designed to assist managers to deal with employment related issues. It comprises of three sections;

  1. Reasonable Management Action,
  2. Performance Management,
  3. Dealing with Misconduct and Employee Complaint Handling for Managers

This training is recommended for all managers/team leaders/supervisors to help minimise costly and time-consuming complaints against managers – more details http://awpti.com.au/management-training/ – price on application.

Phil has delivered this training session to a large number of corporate, State and Federal government clients.

The benefit of the face to face training is that participants are expertly guided through the learning materials and also get to hear the war stories and ask questions of a highly experienced workplace investigator.

DIY training

It may be the case that you wish to deliver the training yourself but don’t want or can’t find a suitable online package.

We have clients who are based all over Australia and it is more economical for them to purchase the Management Essential Training package and deliver it themselves.

The package includes

  • A comprehensive participant workbook (over 125 pages)
  • A companion trainer workbook with additional notes, including notes on all the case studies
  • A PowerPoint presentation covering the material in the workbook
  • Regular updates to the workbook, as we update cases in Courts and tribunals as they happen

Details of the package and how to order are here – http://awpti.com.au/management-training/

For more details on workplace misconduct including bullying harassment, sexual harassment and discrimination please refer to the AWPTI Workplace Misconduct Manual – http://awpti.com.au/workplace-misconduct-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/

 

Anti-bullying laws disciplinary process

Anti-bullying laws disciplinary process – Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.

Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case demonstrated an inventive way in which the FWC’s anti-bullying jurisdiction can be used by employees facing disciplinary proceedings. It may have opened a can of worms for employers.

In Lynette Bayly [2017] FWC 1886, the FWC issued an interim order preventing her employer from taking any further actions to finalise an investigation into the conduct of an employee or to impose any disciplinary sanction on the employee arising from the investigation or to terminate the employment of the employee.

Ms Bayly had made a section 789FF “stop bullying” application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Despite the application, the employer continued the investigation and, as part of that process, advised her that draft findings had been made. Ms Bayly was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Ms Bayly’s lawyers wrote to the employer indicating she was unfit for work for a period that extended beyond the date of the proposed meeting.  They sought agreement from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in relation of the allegations under investigation.  The employer declined, confirming its intention to proceed with the disciplinary process.

As a result Ms Bayly sought an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

“The FWC may make an interim decision in relation to a matter before it.”

Can the interim order be made under these circumstances?

The employer opposed the interim order:

  • Ms Bayly had not provided a substantive response to the investigation;
  • the investigation was being conducted in a “reasonable manner”;
  • any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
  • the draft findings of the investigation are adverse to Ms Bayly; and
  • if Ms Bayly were to be dismissed, she has other remedies available to her.

The employer claimed that the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,

 “That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified.  The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where “the balance of convenience” lies. He then observed:

It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

  • claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
  • the fact preliminary adverse findings had been reached against Ms Bayly;
  • Ms Bayly’s medical condition;
  • concerns expressed about the employer’s process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.

Commissioner Hampton was satisfied

“… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  The allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.” 

Interestingly, a key aspect of the anti-bullying jurisdiction ‒ that no orders can be made once the employment relationship is at an end (except in very limited circumstances) ‒ was identified as,

“…a significant factor directly relevant to the balance of convenience and the exercise of any discretion”.

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is an interesting and concerning development, one that should be watched carefully by employers. It may well be a warning of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer’s disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the court if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

“given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly.  The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution.  Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences.  In this case, there are some particular circumstances that have justified the making of the interim order.”

Notwithstanding Commissioner Hampton’s words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should;

  • ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is “reasonable management action carried out in a reasonable manner”);
  • Consider out-sourcing bullying investigations to suitably qualified and experienced investigators.
  • Be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).

Australian Workplace Training and Investigation can assist with professional and timely investigations of workplace issues such a bullying, harassment, sexual harassment, discrimination and other areas of misconduct such as Code of Conduct breaches, IT and email misuse, theft and fraud, please contact us if you require assistance on 02 9674 4279 or enquiries@awpti.com.au

AWPTI – workplace investigations 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

Anti-bullying laws disciplinary process

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

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

Anti-bullying laws disciplinary process