High bar for bullying

The standard for successfully showing workplace behaviour is unreasonable is challenging. 

Bullying in the workplace is a serious issue within the nursing profession. Anecdotally, any nurse can recount an experience either personally or in relation to a colleague. On January 1, 2014, new Commonwealth anti-bullying laws commenced operation with the primary intent of promptly stopping such acts. In a deluge, 151 bullying applications were received in the first three months of operation.

Bullying occurs when an individual or group of individuals repeatedly behave unreasonably towards an employee or a group of employees, and such behaviour creates a risk to their health and safety. Note: intention is irrelevant. Unreasonable behaviour includes:

• constant unjustified criticism or complaints
• constant threats to sack or demote
• exclusion from workplace activities
• inconsistent and arbitrary enforcement of rules
• setting unreasonable timelines
• deliberately changing work arrangements in order to cause inconvenience
• unreasonable setting of tasks
• excessive scrutiny of work performance
• withholding information or tools required to perform work
• taking credit for another employee’s work or failing to acknowledge that employee
• verbal abuse/assault.

Because of the broadness of the legislative definition(s) of bullying, the Fair Work Commission (FWC) needed to formulate the threshold/level of behaviour that would sustain a court action. Both employers and employees required guidance on the issue. After all, courts and judicial bodies are hesitant to become the refuge of the petty and trivial disputes that exist in most workplace settings – not just nursing. Hence pre-trial conferences, arbitration and cost penalties against vexatious litigants are mechanisms to weed out cases that waste judicial resources.

A recent FWC case was illuminating, for all workplaces, when it found no instances of bullying in an employee’s complaint against her general manager. Below are descriptions of each of the behaviours the GM was accused of, along with the commission’s findings on each.

ACCUSATION: The GM displayed aggressive behaviour and tone when questioning the employee’s decisions during a meeting.
FINDING: The GM’s angry conduct for a few minutes at the meeting was not unreasonable: “It is to be expected that people, including managers, will from time to time get upset and angry and will express that upset and anger.”

ACCUSATION: The GM micro-managed and undermined the employee by consulting directly with members of her team.
FINDING: The GM’s direct contact with the employee’s team members was reasonable, “given that the GM had overall responsibility for the department and was concerned, with good reason, to find ways to improve the economic performance of the department”.

ACCUSATION: At a meeting, the GM twice yelled at the employee that she was wrong (although after checking relevant emails, the GM conceded that the employee was indeed right).
FINDING: Whilst there was a dispute as to whether the GM raised his voice at the second meeting, “his immediate concession that ‘you’re right’ means that this isolated instance of raised voice would not constitute unreasonable behaviour”.

ACCUSATION: The GM directed the employee – on her return to work from stress leave – to leave the workplace due to disingenuous concern for her health.
FINDING: Evidence suggested the GM’s direction for the employee to leave work may not have been entirely motivated by concern for the employee’s health but “… I am unable to conclude that it was not reasonable management action. The GM was in the best position to assess the state of distress … and the risks involved”.

For nurse managers (and employee nurses) it is important to be aware that ‘reasonable management action’ undertaken, in a reasonable manner, does not constitute bullying. A nurse manager is entitled to reasonably direct, discipline and control the workplace. If an employee nurse feels aggrieved, then the onus and required threshold of proof falls to them. That threshold is not insignificant.

The phrase ‘reasonable management action’ was recently clarified by the Fair Work Commission. In a hearing, the employee – SB – alleged behaviours constituting bullying:

• two colleagues making separate complaints of bullying against SB
• the employer accepting the complaints for investigation
• the employer failing to take adequate action to prevent similar inappropriate conduct (i.e., further complaints) after the first complaint was resolved in favour of SB
• the employer failing to support SB while she was the target of ongoing rumours
• one employee harassing and badgering SB on a daily basis by documenting, in detail, SB’s daily conduct
• the employer failing to notify the employees of the outcome of the investigations into the complaints.

The commission addressed the question, what is reasonable management action carried out in a reasonable manner? It held that management action includes everyday actions to effectively direct and control the way work is carried out, including management decisions. The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. The commission held that the test means:

• management actions do not need to be perfect or ideal
• a course of action may be reasonable, even if particular steps are not
• the action must be lawful and not irrational, absurd or ridiculous
• unreasonableness must arise from the actual management action, and not the employee’s perception of it
• consideration may be given to whether the management action involved a departure from established policies and procedures and if so, whether the departure was reasonable under the circumstances.

In dismissing the application, the commission found that the making of “vexatious allegations”, spreading rude or inaccurate rumours, and conducting an investigation in a grossly unfair manner could be considered unreasonable conduct and constitute bullying if the conduct occurred repeatedly.

However, the commissioner made the following findings:

• there was insufficient evidence “… to provide a basis for findings that an individual or group of individuals have repeatedly behaved unreasonably towards the applicant so as to create a risk to health and safety”.
• Whilst some of the behaviour bordered upon unreasonable, the commission was not satisfied that “… the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to [SB’s] health and safety”.
• “The receipt of the two complaints by management and the conduct of investigations in response were not unreasonable. Indeed, that course of action was the only reasonable and prudent response.” Having the investigations conducted by an external law firm was also not unreasonable.
• In response to SB’s argument that her employer failed to take appropriate action to support her, after the initial complaint was found to be unsubstantiated “… the employer did make some efforts to offer support, and SB actually did not see the value of that support at the time and communicated this.”

Another 2014 FWC case, instructive for nurse managers, found that employees are not immune from normal employer expectations that they comply with workplace policies and practices. In the case, the FWC found that an employer did not bully a worker (not a nurse) when directing them to take on a project that was not referred to in their job description.

It appears from these cases that the parameters of what constitutes bullying and ‘reasonable management action’ are relatively broad and follow a common sense approach. This affords nurse managers with a degree of comfort and flexibility when managing employees. Conversely, an employee nurse with a mere tiff, met with a raised voice or isolated disagreement in the workplace, will not cut the mustard in substantiating a claim for bullying.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

 

 

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