A strong perception by an employee that they have been the subject of bullying in the workplace may be insufficient to satisfy a bullying claim under the Fair Work Act 2009 (Cth).
A recent case before the Fair Work Commission has highlighted the fact that reasonable management action will not be considered bullying.
The Fair Work Act defines bullying as:
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection
(1) does not apply to reasonable management action carried out in a reasonable manner.
In this recent case, an aged care worker argued that her manager and supervisor engaged in repeated bullying behaviour. The employer submitted that the employee was the subject of reasonable management action and management had conducted itself in a reasonable manner including:
- formal warning on 31 March 2015;
- formal counselling on 12 September 2016;
- formal warning on 19 October 2016;
- formal counselling meeting on 12 January 2017;
- Show cause as to why employment should not be terminated on 20 January 2017.
Despite the worker’s allegations that she had been yelled and screamed at verbally, at the conclusion of hearing all of the evidence, the Commission determined that the events leading up to and including the issue of a formal warning on 31 March 2015, was anything other than reasonable management action taken in a reasonable way. Even though the employee held a strong perception that she had been the subject of bullying, this was not borne out by the evidence.
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