It can be a tough call in a workplace bullying case to ascertain whether an employer’s disciplinary action was reasonable or a pretext for bullying.
The United States is literally in the dark ages with respect to workplace bullying but not so Australia, which a year ago authorized a national workplace relations tribunal to decide workplace bullying complaints pursuant to a 2009 law.
The mission of Australia’s Fair Work Commission (FWC) is: “Helping Australians create fair and productive workplaces.
The FWC recently ruled upon an employer’s objection that it lacked jurisdiction to hear a worker’s bullying complaint because the complaint was based on a reasonable management disciplinary action. The FWC disagreed, finding that the employer’s disciplinary action was not reasonable and the commission could hear the case.
The dispute arose when a Human Resources Officer of a radiology firm sent a letter marked “Disciplinary Process” to a worker threatening possible dismissal for issues involving efficiency, following directions, attitude and rudeness.
The FWC found that two elements are necessary to constitute a reasonable management action:
- There must be some line of “cause and effect between conduct, behavior or performance of an employee,” and
- The relevant management action must be a “reasonable and proportionate response to the attributes of the employee to which it is directed.”
The FWC said it would have been reasonable for the radiology firm to place the worker on a routine performance management plan. The company’s threat to terminate the worker was deemed excessive and unwarranted, especially because the worker had responded positively to the issues raised about his performance. One commissioner said differences of opinion regarding the appropriateness of a certain work practice “did not reasonably warrant ‘disciplinary action’ as opposed to discussion about appropriate procedures with the employees involved.”
The U.S. government has ignored the problem of workplace bullying which is said to affect one in every three or four workers. Indeed, the vast majority of workers here can be fired for any reason, whether it is fair or not, as long as it does not violate an actual law (i.e. race or sex discrimination laws).
Australia passed a Fair Work Act in 2009 that provides recourse for all workers there when:
- another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and
- “that behaviour creates a risk to health and safety.”
The law exempts reasonable management actions that are carried out in a reasonable manner.
The above case is James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll  FWC 1131.