Management, bullying, reasonable directives, discrimination – how to tell the difference

A manager wants to speak to an employee about their performance – the employee has been coming late to work each day, not following the relevant policies, and spending a lot of time out of the room, leaving the rest of their team to carry the burden.

The employee feels that the manager is being unfair. The lateness is because they spend time in the car park chatting to the parents and children. The policies they aren’t following? Those are the same policies which keep the employee from working directly with children. When they are out of the room, they are speaking with other educators, gathering resources and ideas to make their program amazing. The employee takes to Facebook to ask what s/he should do when her/his manager is bullying her/him. 

Sound familiar? 

Everyone has a right to a workplace free of bullying and harassment – but what do those terms mean? Where is the line between bullying and reasonable management action? 

Bullying

To prove a case of bullying, a worker must demonstrate that another person, or group of people repeatedly act unreasonably toward them, and that that behaviour creates a risk to health and safety. 

The Fair Work Ombudsman has defined unreasonable behaviour as any behaviour that includes victimising, humiliating, intimidating or threatening. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.

Some examples of bullying might be aggressive behaviour, such as blocking someone from being able to move out of a room, teasing or practical jokes, or pressuring someone to behave in an inappropriate way. Bullying can also include excluding someone from a work related event, or placing unreasonable work demands on them, that are inconsistent with what is asked of others. 

Reasonable management action

Employers and managers are required, as part of their leadership functions, to make decisions about poor performance, and take disciplinary action. 

An employer has the right to speak to an employee about their performance, to set standards for their workplace, and to take actions, up to and including termination of employment, in the event that those standards are not met. 

Additionally, leaders and managers have a right to direct and control the way in which work is carried out, supporting their decisions with the appropriate policies, procedures and processes of their workplace. 

Bullying or discrimination – what’s the difference?

In the eyes of the Fair Work Ombudsman, deciding if an event meets the criteria for discrimination hinges on whether or not there was any adverse action. For example, demoting someone from assistant centre manager to float staff when they announce their pregnancy would be an adverse action, as the staff member is being treated differently because of a characteristic. 

Another example of discrimination in the early childhood education and care (ECEC) context may be a company deciding to promote a lesser qualified team member to the position of centre manager because of their ethnic background. While one person is advantaged in this scenario, another more qualified person is disadvantaged because of their race. 

Protection from bullying 

National anti-bullying laws cover most workplaces, and extend to protect contractors, students gaining work experience, volunteers and outworkers. 

The Fair Work Commission is the national workplace tribunal that deals with anti-bullying claims under the Fair Work Act. 

In addition, each state and territory has a workplace health and safety body that can provide advice and assistance about workplace bullying. 

For those who believe they are experiencing bullying or harassment at work, the Fair Work Ombudsman recommended following up with: 

• a supervisor or manager
• a health and safety representative
• the human resources department
• a union – visit the Unions and employer associations page to find registered unions in your industry.

Employees can also take action with the Fair Work Commission. The first step in this process is to take the Commission’s eligibility quiz, and then, if eligible, lodging an application with the Commission. Free legal advice is available for eligible applicants from the Workplace Advice Service .

The Australian Human Rights Commission (AHRC) accepts complaints of workplace bullying, harassment or discrimination based on a person’s race, sex, age, sexual orientation, religion or disability under federal laws. The AHRC uses conciliation between parties to reach a resolution.

Fair Work also provides assistance for employers with an anti-bullying guide and free legal advice for small businesses (if eligible) available from the Commission’s Workplace Advice Service.