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Bullying update: What is “reasonable management action”?

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HC Online | 28 Apr 2014, 11:00 AM Agree 0
If you can successfully show that your actions have been reasonable then then the FWC will not make an anti-bullying order – so what is ‘reasonable’ in the eyes of the FWC?
  • Please clarify | 28 Apr 2014, 01:19 PM Agree 0
    In relation to where a bullying complaint is made against the manager who is conducting the performance management process … the advice given in the article
    •if the worker involved in performance management makes a bullying complaint:
    ◦suspend any performance management process

    goes against every legal presentation that I have ever attended external to my organisation, as well as against our usual company policy to date.

    The reason being that employees try to use a bullying claim (and/or lodge a Workers Compensation Claim which leaves less options for employers) against the manager as a strategy to delay and stifle the performance management process. Our approach has always been to conduct the bullying investigation and the performance management process at the same time ... obviously ensuring the performance management process is a little more closely monitored, as well as ensuring a timely and thorough bullying investigation.

    Is the advice given reflecting a change in legal advice from the majority of legal professionals or a personal perspective?
  • Kathryn Dent | 28 Apr 2014, 01:48 PM Agree 0
    Hi, as one of the co-authors I am happy to explain and I have always taken this view (within reason as I can understand how a bullying claim can be disingenuously made). By suspend the process I only mean temporarily and within a short period to determine the outcome of the bullying complaint and then resume performance management if appropriate. I make this recommendation so that any outcome from performance management, if detrimental to the employee, is less likely to give rise to a general protections claim of adverse action (obviously there are other attendant legal risks too that a suspension will minimise). Obviously my advice in relation to any particular situation will depend on the circumstances and my clients' appetite for risk, these are very personal factors that need to be carefully considered.
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