FWC sets standards for reasonable management action in workplace investigations
The Fair Work Commission (FWC) recently dealt with a stop-bullying application where a worker claimed her manager's responses to her workplace concerns were inappropriate and humiliating. The worker also argued she faced unfair treatment during a workplace investigation.
The case examined several workplace interactions that occurred between May and September 2023, including verbal exchanges about staffing, written communications about workload, and the worker's suspension during an investigation.
The decision provides valuable insights into what constitutes workplace bullying versus reasonable management action.
The incidents took place at an aged care facility where the worker started as a casual enrolled nurse in May 2023. Having worked at three other facilities run by the same organisation, she quickly noticed differences in workload and staffing levels compared to her previous workplaces.
Two significant incidents occurred in June 2023. The first happened when the worker attempted to raise staffing concerns before her afternoon shift. She said the general manager responded by telling her and another nurse, in front of other staff members, "you go to your floor and do your work, stop worrying about rostering."
The second incident involved an email exchange about medication administration duties. After the worker proposed a new way to distribute the workload, the general manager replied that nurses would eventually need to handle all medication duties, suggesting they should manage 35-40 residents each.
The situation escalated when a serious incident involving resident care occurred in mid-June 2023. Following concerns from the Aged Care Quality and Safety Commission, the facility suspended the worker and four other staff members on full pay during the investigation.
The worker argued she was unfairly targeted for investigation, pointing out that some staff members involved in the incident weren't suspended. She also questioned why one nurse was allowed to return to work earlier than others.
The general manager maintained that all decisions about the investigation and suspensions were made collectively with human resources and senior management, following proper procedures to protect resident care.
For the FWC to issue stop-bullying orders, it said that it needed to be satisfied that the worker had been bullied at work and faced ongoing risk. Under section 789FD of the Fair Work Act, workplace bullying involves repeated unreasonable behaviour creating a risk to health and safety.
The Commission noted: "Management actions do not need to be perfect or ideal to be considered reasonable." This principle guided its assessment of whether the manager's actions constituted bullying or reasonable management action.
The decision emphasised proper investigation procedures, stating: "Suspending an employee from work, albeit on paid leave, is a serious step. It is important that a company can show a transparent and fair approach to all those involved in the investigation."
While acknowledging room for improvement in the employer's communication methods, the Commission ultimately found the actions didn't meet the legal definition of workplace bullying.
The Commission observed that after initial conflicts, the worker had escalated her concerns to senior management, leading to a meeting where the general manager apologised for any distress caused. The FWC said that this demonstrated the organisation's willingness to address workplace issues.
In its conclusion, the Commission stated: "While there may be room for [the employer] to improve certain communication and processes...none of the actions of [the general manager] or [the employer] meet the threshold for bullying under the FW Act." The application was dismissed, though the Commission noted areas where workplace practices could be enhanced.
