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Performance discipline not ‘reasonable management action’

A BENCHMARK ruling from the Fair Work Commission has cleared the way for an employee to pursue a bullying order against a medical imaging firm after disciplinary action in relation to performance concerns failed to meet the standards of ‘reasonable management action’.

In response to an application for a stop bullying order filed by an employee at Capital Radiology, the organisation raised a jurisdictional objection and sought to have the application dismissed on grounds the alleged bullying constituted reasonable management action.

Specifically, the company indicated it had commenced disciplinary procedures against the employee as a result of poor performance in the workplace, related to ‘efficiency, following direction, and attitude and rudeness’.

However, Commissioner Lewin said that the disciplinary action was unreasonable when compared against the relevant misconduct.

“There must be some line of cause and effect between conduct, behaviour or performance of an employee, and the relevant management action,” Commissioner Lewin stated.

“The management action [must also be] a reasonable and proportionate response to the attributes of the employee to which it is directed.”

In assessing the ‘logical causal link’ between the disciplinary action and the conduct of the employee, Commissioner Lewin found the action to be unreasonable and connoting ‘something more threatening and sinister than performance management’.

“In my judgement, [the respondent] found [the applicant] a problematic employee whose communication she considered was insufficiently subservient and respectful of authority, [and] it appears [the applicant] complained about the conduct of staff of the clinic at which he was employed in relation to certain work practices,” the Commissioner said.

“While [the applicant’s communication was] occasionally lengthy and verbose, differences of opinion about these things did not reasonably warrant ‘disciplinary action’ as opposed to discussion about appropriate procedures with the employees involved.”

Citing an example in which disciplinary action was taken against the employee in relation to the use of punctuation and grammar in work-related e-mails, the Commissioner found the employer’s use of disciplinary action to be unreasonable.

“Disciplinary action taken against an employee involving multiple steps towards potential dismissal could reasonably be perceived to threaten the security of an employee’s employment, and cause them to feel threatened,” he said.

“Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.”

Commissioner Lewin dismissed the jurisdictional objection, enabling the employee to proceed with his stop-bullying application.

Implications for Employers

This particular case is of significance to resource industry employers as it is a benchmark clarifying that disciplinary procedures may not always constitute reasonable management action.

Specifically, Capital Radiology may be found to have used disciplinary procedures disproportionately to alleged misconduct in order to make an employee feel threatened, potentially resulting in a stop bullying order made against the relevant company managers.

Recognising what does and does not constitute reasonable management action in the workplace is an important preventative measure to help your organisation and its employees avoid allegations of bullying.

If you are unsure about what constitutes reasonable management action in your workplace, or seek to minimise the risks of bullying applications being made in relation to management decisions, AREEA’s workplace consultants are on-hand to provide timely expert advice.

AREEA Training & Development offers a series of courses to train your workforce and contact officers in how to differentiate between bullying and reasonable management action, and address issues of misconduct, harassment and other workplace grievances efficiently and respectfully.

Contact your local AREEA office here to talk to a consultant or training representative.

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