Under Section 789FD of the Fair Work Act 2009 (Cth), a worker is deemed to have been bullied if:
An individual or group of individuals repeatedly behave unreasonably towards a worker, or group of workers and that behaviour creates a risk to health and safety. Reasonable management action, carried out in a reasonable manner does not constitute bullying behaviour.
What is considered reasonable, is a question of fact. Behaviour is considered unreasonable if a reasonable person, having regard to all the circumstances, may consider it to be unreasonable.
A one-off incident will not be a sufficient basis for making a bullying allegation/claim. Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of ‘repeated’ behaviour, nor does the same specific behaviour have to be repeated.
Reasonable management action carried out in a reasonable manner includes three elements: the behaviour must be management action; the taking of such management action must be reasonable; and the management action must be carried out in a manner that is reasonable.
Management action is not confined only to managerial decisions but encompasses a wide range of conduct or behaviour which affects an employee, including performance and disciplinary matters, the allocation of work and the way the work is carried out. Putting an employee on a performance improvement plan (PIP) falls within the scope of management action.
To determine if the action constitutes ‘reasonable management action’ it is necessary to undertake an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. The test for reasonable management action is whether the ‘management action’ was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.