Reasonable management action: What is “reasonable”?
The concept of “reasonable management action” arises both in relation to workers compensation claims for psychological injury (including claims concerning stress and anxiety), and in relation to bullying claims in the Fair Work Commission. Reasonable management action, carried out in a reasonable manner, may be a defence to these claims.
What is reasonable will vary depending on the circumstances. Here are some examples:
Worker sacked for obesity posing a workplace risk
BHP Coal sacked a supervisor who weighed 160kg because medical assessments indicated he couldn’t perform some workplace tasks safely because of his weight. The supervisor made a claim for stress and depression resulting from the dismissal. Before terminating his employment, the supervisor had been absent for nearly two years on stress leave, during which BHP argued that it made significant efforts to try to get him to return to work, including regular contact, counselling, and arranging fitness-for-work assessments. These assessments identified issues such as kneeling, squatting or climbing ladders as being risky because they may aggravate an underlying knee condition. The risk to other workers who might have to try to move the employee if he became injured at work was also taken into account. The employer tried to get the employee to address his weight problem to eliminate safety issues but to no avail.
The Commissioner hearing the case viewed the manager’s actions as being those of a manager genuinely working towards returning the supervisor to work. A superficial or overhasty approach may have had a different outcome, but in this context, any psychological injury suffered by the employee was the result of reasonable action by management.
Workplace change, not bullying
A long serving employee of The Salvation Army’s Employment Plus job placement service complained about changes in her duties. Having previously dealt with clients who were “generally job ready,” the scope of clients she needed to deal with was broadened to include people who weren’t job ready, and who may have impediments to obtaining work such as recent time in prison, drug issues or mental health issues. The employee refused to deal with these clients.
Management insisted, and the employee made a bullying claim to the Fair Work Commission. The Commissioner noted that it wasn’t unreasonable for the employee’s refusal to work with some of her allocated clients to become an issue in her performance appraisal, when it was part of her job description. The fact that Employment Plus had not closely assessed individual performance in the past, and that the introduction of individual performance management was a significant change, was not unreasonable. The Commissioner felt that the organisation had shifted from “a long period of moribund management to an environment where the organisation is performance focussed.” While this was a significant change for the employee, it was reasonable management action and did not amount to bullying, particularly when there was evidence that the change of culture was intended to avoid losses which had to be subsidised from elsewhere in the organisation.
Failure to make reasonable adjustments
In contrast, in another recent case, Corrective Services NSW (CSNSW) had to pay substantial damages to an employee for discriminatory treatment when it failed to make reasonable adjustments for the employee after she was diagnosed with a digestive disorder. Medical evidence available to CSNSW confirmed that the employee could make trips of longer than 30 minutes, provided breaks were scheduled to assist her to do so. However, CSNSW ignored the qualification, and acted on the basis that the employee was unable to travel for longer than 30 minutes. As that was necessary for her secondment as an intelligence analyst, that secondment was terminated, and the employee was told she would be medically retired unless able to return to her original position.
The conduct of CSNSW was found to rest on misunderstandings, assumptions without foundation and an attitude of presumption, rather than bringing an open mind and positive approach to resolution of the issues. CSNSW had decided early on that medical retirement was the only option, whereas a more open and consultative approach may have yielded solutions to the perceived problems.
The lesson to draw from these examples is that a knee jerk response, or a response based on unsound assumptions, will not be “reasonable management action,” while the open-minded and consultative approach taken by BHP Coal or the assertive and soundly based approach of Employment Plus are much more likely to meet that standard.
Stephen Booth, Principal
Phone: +61 2 9895 9222