Commissioner recommends the manager undergo further training in communication
by Kyle Scott, director and Brittany Virgili, associate, at Australian Business Lawyers and Advisors
A recent Fair Work Commission (FWC) decision has upheld the validity of different managerial approaches, finding that the supervisor’s higher expectations of a particular worker did not amount to workplace bullying.
In last month’s decision of Hong Liu [2022] FWC 175, a supermarket worker complained that one of her supervisors consistently required her to do more heavy work and gave her less help than other supervisors within the business. The employee also complained about unfair allocation of work, alleging that she was given more work compared to her colleagues.
Commissioner Williams rejected the employee’s bullying complaint and concluded that the supervisor’s conduct constituted “reasonable management action”. In reaching that conclusion, the Commissioner made some helpful comments about the legitimacy of a supervisor exercising managerial prerogative in directing how work is to be performed.
The Commissioner noted in his decision that:
“Unfortunately, it is not uncommon for employees to look at others in their workplace and feel that by comparison they are being treated unfairly by their managers. Often this view is based on a limited appreciation of the multiple interacting factors influencing their managers’ decisions and actions.
The equal distribution of tasks between all employees is a one-dimensional perspective which will often not be the best option for the operation of a business. It is also not uncommon for individual employees to have strong opinions about how work should be undertaken and that their managers are managing poorly.
In this case perhaps there is an opportunity for [the supervisor] to improve his management approach. However, the fact that some action could have been conducted differently, or in a more reasonable manner, does not mean that action was unreasonable.”
The Commissioner found there was no evidence to show the manager’s actions were motivated by malice or otherwise done in bad faith and concluded that the manager’s conduct was not unreasonable.
This distinction between a supervisor’s ‘management style’ and workplace bullying has also been teased out in a couple of earlier FWC decisions.
In Pilbrow [2020] FWC 2458, the Commission was asked to determine whether a supervisor engaged in workplace bullying when she “linked arms” with an employee and guided her to the lunchroom in an effort to get her to take her scheduled lunch break. The supervisor admitted to being hurried and under pressure at the time but denied “assaulting” the employee.
Commissioner Booth concluded that the conduct (and in particular the touching of the employee) “may have been poor management behaviour” but did not constitute workplace bullying. The Commissioner commented:
“Objectively considered, requiring timely breaks was a reasonable request in the context of a busy radiology practice. The communication and conduct of the [manager] could well have been done better, but it was not bullying as defined by the Act.”
Notwithstanding that finding, the Commissioner recommended that the manager undergo further training in respectful communication and maintaining appropriate boundaries.
These decisions reinforce the legitimacy of a supervisor exercising their ‘managerial prerogative’ in the way work is organised, and also make it clear that different or peculiar (and even ‘sub-optimal’) management styles do not necessarily amount to workplace bullying.
However, there is also a point at which sub-optimal management styles traverse into the territory of workplace bullying. For example, in the decision of Carroll v Karingal Inc [2016] FWC 3709, the FWC found that a supervisor’s management style of “significant and systematic micromanaging” did amount to bullying, despite the supervisor believing that he was “doing the best by the organisation and his staff”.
Key takeaways
Workplace bullying complaints are highly fact-specific and will turn on the specific facts of the case and the circumstances and context in which the conduct occurred. No two cases are the same, and so ‘hard and fast rules’ are unhelpful.
However, these recent decisions make it clear that the FWC will give managers latitude to adopt their own management style and run the business in the way they consider appropriate. Sub-optimal or poor management will not necessarily amount to workplace bullying. However, there are limits on managerial prerogative, and ultimately the test of whether certain conduct amounts to workplace bullying is based on an objective assessment of whether the conduct was unreasonable.
To help minimise the chances your business will end up in the FWC it is imperative to continue to train those in managerial positions to ensure they are aware of when their individual styles might tread closely to the line of workplace bullying or harassment.
Australian Business Lawyers & Advisors provides training for employers and runs a monthly free webcast for anyone to join. Visit www.ablawyers.com.au for further information.
