Fair Work Commission Decisions on Reasonable Management Action

Reasonable management action refers to performance management or a disciplinary process that is carried out fairly, transparently and justly. As an employer, you have the right to:

  • take appropriate management action and make appropriate management decisions;
  • make necessary decisions to respond to poor performance;
  • take disciplinary action, if necessary;
  • effectively direct and control the way work is carried out; and
  • give fair and constructive feedback on an employee’s performance.

Whether management action is reasonable depends on:

  • the circumstances that led to and created the need for the management action;
  • the manner in which the management action is taken; and
  • the consequences that followed the management action.

The Fair Work Commission (FWC) has handed down a number decisions on reasonable management action in 2019.

Eskander [2019] FWC 2579

Facts

The Applicant employed as a pharmacist by the employer at several locations including Wyoming Pharmacy. The Applicant alleged failure to provide sufficient or competent support staff on Saturday shifts. The Employer tendered data providing basis for the decision to employ only one pharmacist at the Wyoming pharmacy. The Employer provided evidence of events where Applicant reduced staff members to tears. The Employer submitted applicant needed to be relocated as he had instilled fear in other staff.

Decision

The Commission was not satisfied any of the persons named by the Applicant behaved unreasonably towards the Applicant, or that an unreasonable workload was imposed on Applicant. The Commission was satisfied that reasonable steps were taken by employer to address applicant’s concerns. Commission found applicant was not bullied at work – in light of applicant’s conduct it was quite reasonable for employer to remove him from the Wyoming pharmacy. The application dismissed.

Implications

Employers should take reasonable steps to address a bullying and harassment complaint, regardless of perceived motive. This was a reasonable management action, balancing the needs of other staff and the Applicant. The FWC takes a pragmatic approach – you can’t use bullying provisions as a sword and a shield.

Miroslav Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears [2018] FWC 2906

Facts

The employee was placed on successive performance improvement plans (PIP) after a recent promotion. Prior to the promotion, the employee had received distinctively positive performance reviews, including comments that he was an “experienced, diligent and hard-working” employee. However, his new role had greater expectations which he failed to meet. The employee argued the introduction of a PIP was not ‘reasonable management action’ and instead amounted to bullying.

Decision

The FWC found that where a PIP is introduced in a reasonable matter, lacking any evidence of malicious intent, it will not amount to bullying. The test applied was whether the expectations, work actions or timelines contained in the PIP were achievable and reasonable. The FWC recognized that whilst the employee may have been accustomed to positive feedback and shocked by the action, ultimately any ‘unreasonableness’ must arise from the actual management action itself, not the employee’s perception of the action.

Implications

This case is a positive reminder for employees that management action carried out in a reasonable way isn’t bullying. Employers should be cautious to accurately justify management action and maintain records.

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