Is it workplace bullying or 'reasonable' management action?

The Queensland Industrial Relations Commission (QIRC) recently dealt with a case involving allegations of workplace bullying in a healthcare setting.

An enrolled nurse with advanced skills at a hospital's mental health unit claimed he was subjected to bullying by management through two separate incidents.

The worker argued that warning letters issued by his employer constituted unreasonable behaviour and created a risk to his health and safety. He sought orders from the QIRC to stop what he perceived as ongoing bullying in the workplace.

Bullying allegations and management’s response

The worker was employed at the Townsville Community Care Unit in the Mental Health Service Group. He alleged that he was subjected to bullying through two management actions:

1. A warning letter dated 29 October 2021 regarding unauthorised access to electronic medical records of two patients.
2. A letter dated 9 May 2023 asking him to respond to concerns about his alleged inappropriate conduct in the workplace.

The first letter followed an internal review into the worker's conduct in accessing electronic medical records of two patients on 24 and 26 July 2021.

The worker was given a chance to respond on 17 August 2021. In his response on 27 August 2021, the worker acknowledged accessing the records but said it was relevant to his role.

The second letter notified the worker of concerns raised by a clinical nurse consultant about his conduct on 13 June 2022 and 17 January 2023. Both incidents involved alleged aggressive and threatening behaviour by the worker towards the clinical nurse consultant.

Was it reasonable management action?

The employer said that the letters were part of reasonable management action carried out in a reasonable way. They argued that the actions were needed to address potential breaches of patient confidentiality and to look into complaints about the worker's conduct.

The employer said the worker was given chances to respond to the allegations and that proper procedures were followed in both cases. In their oral submissions, the employer stated:

"In terms of reasonable management action, [the manager's] conduct in issuing both the 29 October letter and the 9 May letter was reasonable management action. In both instances, it was within the authority of [the manager's] role to do so. In both instances, [the worker] was afforded procedural fairness, in that he was properly informed of the concerns against him and given a fair opportunity to respond."

Procedural fairness and natural justice

A key issue was whether the worker was given procedural fairness. The worker said he wasn't told about the grievances against him in a timely manner and that the decision-maker was biased due to previous interactions. He argued:

"No, because they're not following procedure. They're not following the rules around natural justice and procedural fairness."

The employer maintained that the worker was properly informed of the concerns and given fair chances to respond. They argued that the relevant policies and procedures were followed throughout the process.

What constitutes workplace bullying?

The QIRC said that workplace bullying, as defined by the Industrial Relations Act 2019, must involve repeated and unreasonable behaviour that creates a risk to health and safety. The Commission noted:

"Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time."

In assessing whether the behaviour was unreasonable, the Commission applied an objective test, considering all relevant circumstances at the time.

The Commission highlighted the difference between reasonable management action and bullying. It referred to previous decisions, noting:

"Management actions do not need to be perfect or ideal to be considered reasonable; a course of action may still be 'reasonable action' even if particular steps are not."

This principle underscores the need for management actions to be justifiable and carried out in a reasonable manner, even if they are not flawless.

The Commission also considered whether there was a risk of continued bullying. It found no evidence to support this, stating:

"There is no evidence before the Commission of exposure to the chance of continued bullying in the workplace at the time of making [the worker's] application, or on the consideration of this application."

‘Reasonable’ management action

The Commission dismissed the worker's application, concluding that the employer's actions were reasonable management action. The decision stated:

"The conduct of which [the worker] complains was, in my view, reasonable management action carried out in a reasonable manner."

The Commission also said:

"There is no evidence to support the contention that [the employer] has repeatedly behaved unreasonably towards [the worker] or that such behaviour creates a risk to the health and safety of [the worker]."

This case highlights the importance of following proper procedures when addressing workplace issues and the need for substantial evidence when making bullying claims. It also emphasises the distinction between reasonable management action and bullying behaviour.