“I’m not bullying them. I’m managing them.”
It is a sentence most experienced leaders have heard.
And sometimes the manager is absolutely right.
Performance management isn’t bullying.
A difficult conversation isn’t bullying.
Telling an employee their work isn’t good enough isn’t bullying.
And, importantly, an employee being upset doesn’t automatically make management action unreasonable.
However there is another side to it.
“I’m just direct” can also become a crutch for some pretty ordinary management behaviour.
So where is the line?
The Fair Work Commission has put it particularly well:
“Firmness does not equate to harshness.”
People Managers still need to be able to manage.
In saying this, reasonable management action must also be carried out in a reasonable manner.
What is workplace bullying?
Under section 789FD of the Fair Work Act 2009 (Cth), relevantly provides that a worker is bullied at work where an individual or group repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety.
There are therefore three important concepts:
- the behaviour is repeated;
- the behaviour is unreasonable; and
- it creates a risk to health and safety.
Importantly for employers, the legislation specifically provides that reasonable management action carried out in a reasonable manner is not workplace bullying.
Employees are allowed to be uncomfortable
An employee feeling upset about a conversation does not automatically mean the conversation was inappropriate.
A performance meeting can be uncomfortable.
Being told your work is below the required standard can be confronting.
Receiving a warning can be stressful.
Being directed to change your behaviour can be embarrassing.
None of those things, by themselves, necessarily amount to workplace bullying.
“Firmness does not equate to harshness”
The Fair Work Commission’s decision in Trainor v Council for Christian Education in Schools [2023] FWC 1272 provides a useful example.
Mrs Trainor, a Communications Coordinator, alleged that a series of interactions with management amounted to workplace bullying.
Her allegations included a dispute over annual leave, comments made during workplace discussions, management’s handling of her complaint, alleged micromanagement, the CEO being copied into correspondence and a direction to stop discussing a proposed four-day working week in an open-plan office.
Mrs Trainor alleged that during the four-day week incident her manager had spoken aggressively and that she felt humiliated.
The Commission did not accept that the conduct amounted to bullying.
Importantly, Deputy President Colman observed:
“An instruction is not the same thing as a disciplinary measure, and firmness does not equate to harshness.”
A direction does not become unreasonable simply because it is firm.
The Commission also found that involving the CEO in communications was reasonable given the strained relationship and issues being managed. The handling of Mrs Trainor’s complaint through the board chair was also consistent with the organisation’s processes.
Ultimately, the conduct did not satisfy the threshold for repeated unreasonable behaviour creating a risk to health and safety.
The case highlights an important point.
An employee’s perception of management conduct matters, but perception alone does not determine whether workplace bullying has occurred.
The conduct needs to be assessed objectively.
Direct is not the same as disrespectful
There is nothing inherently wrong with a direct management style.
Some of the best managers are direct.
Employees often benefit from knowing exactly where they stand.
The problem arises when “direct” becomes an excuse for behaviour such as:
- shouting or aggressive communication;
- humiliating an employee in front of colleagues;
- repeated personal criticism rather than feedback about performance;
- belittling or sarcastic comments;
- threatening language;
- unreasonable work demands;
- withholding information an employee needs to perform their role; or
- communicating in a way designed to intimidate rather than manage.
There is an enormous difference between saying:
Reasonable management does not have to be perfect
Managers are human.
A conversation might have been handled better.
A manager may phrase something poorly.
A process might not be perfect.
That does not automatically convert the entire management process into workplace bullying.
The approach considered in Khan v Workers’ Compensation Regulator [2023] ICQ 002 provides useful guidance on reasonable management action.
In general terms, management action does not necessarily need to be perfect or ideal to be reasonable.
The assessment is an objective one.
A significant departure from an established policy or procedure may be relevant, but the ultimate question remains whether the action was reasonable in the circumstances.
A reasonable decision can still be delivered unreasonably
This is where managers can get themselves into trouble.
Imagine an employee has repeatedly missed deadlines.
There may be nothing unreasonable about addressing that performance issue.
A manager meets privately with the employee, identifies the missed deadlines, explains the expected standard, listens to the employee’s explanation and clearly documents what needs to change.
Now imagine the same manager repeatedly criticises the employee in front of colleagues, raises their voice, sends aggressive messages and makes sarcastic comments about the employee’s competence.
The underlying performance issue is exactly the same.
The manner in which it is being managed is completely different.
That is why employers shouldn’t focus solely on whether a manager had a legitimate reason to act but also wow the manager acts matters too.
You can win the bullying argument and still have a management problem
This is where things have become more complicated for employers.
Imagine HR investigates a complaint and concludes:
“This isn’t workplace bullying.”
Is that the end of the matter?
Not necessarily.
A manager may not satisfy the legal threshold for bullying but could still be creating significant psychosocial risk through poor communication, conflict, unreasonable job demands or lack of support.
And even putting the legal risk aside, there is a commercial question.
What if that manager’s team keeps leaving?
What if complaints keep arriving?
What if absenteeism is increasing?
What if HR is spending half its time dealing with the fallout?
Workplace bullying is a psychosocial hazard, but it isn’t the only one.
Poor workplace relationships, conflict, excessive job demands, inadequate support, poor role clarity and poorly managed organisational change can also create risks to psychological health.
A manager might therefore successfully defend an allegation of workplace bullying while still creating significant problems for the organisation.
Winning the bullying argument doesn’t necessarily mean the management was good.
Be careful with the “high performer”
There is another scenario leaders regularly encounter.
The manager delivers results.
Their numbers are excellent.
Senior leadership loves them.
However HR keeps receiving complaints about the way they treat people.
One complaint is dismissed as a personality clash.
The next comes from a disgruntled employee.
Another employee resigns.
Then another complaint arrives.
At some point, the organisation needs to stop looking at each incident in isolation.
Repeated complaints may indicate a broader management problem and likely a training issue as well.
And employers need to be particularly careful where commercial performance causes senior leadership to overlook behaviour they would not tolerate from somebody else.
High performance does not provide immunity from appropriate workplace standards.
Managers still need to manage
This is the part of the conversation I think we need to be careful about.
We shouldn’t create workplaces where managers become so concerned about bullying complaints, psychosocial hazards and psychological safety that they stop managing.
Avoiding difficult conversations creates its own problems.
Poor performers remain poor performers.
Bad behaviour goes unchallenged.
Good employees carry the load.
Resentment builds.
Eventually HR inherits a problem that should have been dealt with six months earlier.
As the Commission said in Trainor:
“Firmness does not equate to harshness.”
That works both ways.
Employees shouldn’t mistake every firm management decision for bullying.
And managers shouldn’t mistake “being direct” for permission to behave however they like.
Need Assistance?
South Geldard Lawyers regularly assists employers, Business Leaders, CEOs, CFOs, HR teams and Executives with:
- Workplace investigations
- Workplace bullying claims
- Sexual Harassment matters
- Psychosocial hazard management
- Manager and leadership training
- Employment law and workplace safety audits
- Having difficult conversations
- Performance Management
If you would like to discuss a difficult workplace decision or conflict, contact our Employment Law Team on jmamaril@southgeldard.com.au or 07 4936 9100.
