Everyone, at some point of their working life, has probably grumbled to themselves when the boss has asked them to do something they considered unreasonable. “It’s not my job,” you might have muttered, as you pushed a mop across the dirty floor of the staff kitchen. And you may well be right. But there’s a lot of difference between a staff roster to keep the kitchenette tidy, and unreasonable management instructions as detailed in the Fair Work Act 2009. As an employer or owner of a small to medium sized business, you do need to know the difference between reasonable management instructions and unreasonable work demands.
Unreasonable management action can imply acts of bullying, so firstly we need to distinguish exactly what is bullying. Again, we consult the Fair Work Act, which defines a worker as being bullied at work if:
a person or group of people repeatedly act unreasonably towards them or a group of workers
the behaviour creates a risk to health and safety.
Unreasonable behaviour includes victimising, humiliating, intimidating or threatening behaviour. The Act goes on further to say that unreasonable work demands can be construed as bullying.
However, the Act states clearly that “behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.”
Which, of course, raises the question:
What is Considered Reasonable Management Action?
The Fair Work Commission (FWC) suggests that ‘determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time.’ It also, in an important addendum, adds that this assessment of what is reasonable must be carried out ‘without the benefit of hindsight.’
Context, in these circumstances, include:
the circumstances that led to and created the need for the management action to be taken
the circumstances while the management action was being taken, and
the consequences that flowed from the management action.
The real 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’. To that end, and using an absurd point merely as illustration, asking an employee to dye their hair because you don’t like brunettes is unreasonable, no matter if you ask nicely.
However, as a business owner you shouldn’t feel reluctant or scared to ask employees to carry out a task, wondering if it’s unreasonable or not. According to the FWC, you just need to keep in mind that:
management actions do not need to be perfect or ideal to be considered reasonable
any ‘unreasonableness’ must arise from the actual management action in question, rather than the worker’s perception of it, and
consideration may be given as to whether the management action did not comply with established policies or procedures and, if so, whether the reason those policies or procedures were not complied with was reasonable in the circumstances.
At the very least, to be considered reasonable, the action must be lawful and must not be ‘irrational, absurd or ridiculous’.
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If you’re still unsure if what you’re planning on asking an employee or your team could be construed as unreasonable management action, don’t risk it. Our team can give you some free, initial advice.
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