Psychosocial Hazards or Reasonable Management Action
I conduct investigations on a regular basis into complaints of bullying against managers. In the past I have had to consider if the actions of a manager towards the employee was bullying however now I must consider if the action was or created Psychosocial Hazards or Reasonable Management Action.
The most common complaints come after an employee has been subjected to performance management, performance review or some sort of feedback or in some cases simply being managed, as you told what to do.
What is Reasonable Management Action under the Fair Work Act s789FD (2)
Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.
To determine if it is reasonable management action 3 tier test is applied,
- The behaviour must be management action
- It must be reasonable for the management action to be taken, and
- The management action must be carried out in a manner that is reasonable
From the investigation perspective when writing my final report if I make a determination that the action of the manager was reasonable management action I must be able to show how I came to that conclusion. One of the things I like to say in training is “if you are going to say it you must be able to prove it.”
Psychosocial Hazards or Reasonable Management Action – The question of Reasonable Management Action
To make the determination on reasonable management action I refer to the case of Ms SB [2014] FWC 2104 (link to case)
This is the first substantive anti-bullying decisions under the Fair Work Act 2009 (Cth) after the anti-bullying jurisdiction commenced in 2014. The case is frequently cited because the Fair Work Commission explained how to distinguish bullying from reasonable management action carried out in a reasonable manner.
It is interesting to note that in Ms SB [2014] FWC 2104, SB alleged a pattern of behaviour by her manager, including:
- Excessive scrutiny of work performance
- Criticism in front of colleagues
- Close supervision and monitoring
- Performance management discussions
- Changes to work duties
- Being spoken to in a blunt or direct tone
In SB the Commission found that reasonableness is assessed in context
The Commission evaluates:
- The circumstances
- The workplace context
- The purpose of the action
- The manner in which it was carried out
Unpleasant does not equal unreasonable
Management action may still be reasonable even if it causes stress or discomfort.
Outcome
The Fair Work Commission:
- Dismissed the bullying application
- Found the conduct was reasonable management action carried out in a reasonable manner
- Did not issue a stop-bullying order
In substance, the Commission emphasised that workplace management necessarily involves criticism, direction and evaluation, and these actions will not constitute bullying if undertaken reasonably.
Psychosocial Hazards or Reasonable Management Action – The question of Psychosocial Hazards
Interestingly in Australia, psychosocial hazards are recognised under work health and safety (WHS) laws as risks that can lead to psychological injury, stress-related illness, or mental health harm. Key Characteristics of Psychosocial Hazards;
Psychosocial hazards typically involve:
- Workplace interactions (e.g., conflict, aggression)
- How work is organised (e.g., workload or deadlines)
- Leadership and management practices
- Organisational culture
As you can see the matters raised in SB could be classed as Psychosocial Hazards and that such workplace investigators may have to determine whether the action of the manager was bullying, the creation of a psychosocial hazard or reasonable management action.
When I make a determination in regards to reasonable management action I take into account the judgement of Commissioner Hampton in Ms SB [2014] FWC 2104 and
- The Fair Work Act s.789FD (1)
- The Fair Work Act s.789FD (2)
- The Fair Work Commission’s Anti-Bullying Bench book
- The Safe Work Australia Guide – Preventing & responding workplace bullying
- The Explanatory Memorandum to the Fair Work Bill
I address the concept of Reasonable Management Action during investigator training in the Conducting Workplace Investigations training course and for managers in the Management Essentials course, that I often refer to as essential preventative first aid for managers.
Links to courses
Conducting Workplace Investigations for organisations
Conducting Workplace Investigations open course for individuals
As part of the conducting workplace investigation training courses both for organisations or the open courses participants receive the advanced level Workplace Investigation Document and Video Toolbox. The toolbox also includes a document that provides my full details of my reasoning with references when I am making a decision in relation to reasonable management action. (Link to the toolbox)
If you would like more information about these courses or you would like to discuss make a booking please contact me. In the meantime please feel free to see what past participants have said about the courses (link to testimonials)
