By Charles Power

One of the recent amendments to the Fair Work Act 2009 (Cth) (FW Act) – which allows workers who have been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop bullying – has received clarification by the FWC in Ms SB [2014] FWC 2104.

Section 789FD(2) of the FW Act provides that reasonable management action carried out in a reasonable manner does not constitute bullying at work.

Until Ms SB, the FW Act or the FWC had not provided a definition of “reasonable management action”.

The only assistance on this point came from the Explanatory Memorandum to the amendments, which refers to management action being:

• appropriate management decisions;
• decisions about how work is to be carried out; and
• disciplinary action.

Commissioner Hampton in this case suggested that everyday actions to effectively direct and control the way work is carried out is intended to be excluded from the bullying jurisdiction under the FW Act.

In determining reasonableness, Commissioner Hampton stated that the test is “whether the management action was reasonable, not whether it could have been undertaken in a ‘more reasonable’ or ‘more acceptable’ manner.”

It was further explained that:

• reasonable does not mean perfectly executed;
• the overall conduct may be reasonable despite particular steps being unreasonable;
• the action must be lawful, not “irrational, absurd or ridiculous” to be reasonable;
• the reasonableness of management action must be viewed from an objective view, not from the applicant’s perception of it; and
• adherence or departure from policies and procedures may be considered in determining reasonableness.

The determination of whether the management action is carried out in a reasonable manner is, according to Commissioner Hampton, dependent on the facts and circumstances giving rise to the action. The Explanatory Memorandum provides some further commentary in that it states that a reasonable manner takes into account “the circumstances of the case and do not leave the individual feeling (for example) victimised of humiliated”.