Workplace mental health, ill employees, absenteeism and return to work management masterclass: dealing with HR ‘grey areas’.
Emma Sutton & Caroline Mostafa
Last month, Associate Director Emma Sutton and Senior Associate Caroline Mostafa from Nevett Ford’s Litigation & Workplace Relations team delivered an insightful presentation on navigating HR ‘grey areas’ at Crown Leadership International Group’s most recent conference. Drawing on their extensive experience, Emma and Caroline examined these tricky and nuanced legal problems, sharing their best practice tips.
Over the next four instalments, Nevett Ford will share their perspectives on the following:
- Reasonable management in the context of complainants;
- Managing low-level conduct issues that are not necessarily disciplinary worthy;
- Workplace investigation tips and tricks; and
- Managing long term ill and injured workers.
Reasonable management action
Reasonable management action is a performance management, conduct management or disciplinary process carried out fairly, transparently, and justly. Any plan does not need to be perfect, but it cannot ridiculous. Employers have the right to;
- Make decisions responding to poor performance.
- Effectively direct and control how work is carried out.
- Provide constructive and fair feedback about performance.
It is crucial to bear in mind that any subsequent management action you take may be scrutinised by a third party, such as Fair Work Commission.
Despite what you may be led to believe, you can still manage or discipline employees who have made complaints about management action, provided any action you do take is:
- Lawful;
- Proportionate to the issue;
- Based on legitimate performance or conduct concerns; and
- Clearly separate from the complaint itself.
Associated legal risks
Before taking any management action against a complaint, its critical to understand and weigh the risk up against what the business wants to achieve. To minimise the risk of claims about workplace bullying, occupational health and safety issues, adverse action, and workers’ compensation it is worth considering:
- The circumstances leading to and creating the management action;
- How the action is carried out, and;
- Any consequence that may follow.
A classic example is an employee complaining that they feel bullied by their manager through a performance management process.
Case Law
A recent case on this issue is Applicant v Australian Government Health Agency [2025] FWC 2459, where the employee applied to the Fair Work Commission (Commission) for a stop bullying order.
The employee’s examples of bullying were management oversight, performance discussions, exclusion and the running of investigations and outcomes.
The Commission held that the employer’s conduct was ‘ordinary workplace management’ – it was not bullying, but reasonable management action. The Commission emphasised the critical distinction between workplace bullying and an employee being mere dissatisfied with management decisions.
Best practice tips
When formulating and implementing reasonable management action, we strongly recommend:
- Being clear on who is responsible, or the decision maker, for a performance management process;
- Training all people leaders about what constitutes reasonable management action, and reasonable performance management;
- Implementing clear and easily understandable policies and procedures regarding performance management and respect in the workplace;
- Documenting all meetings, decisions and processes thoroughly; and
- Finally – making sure an employee feels heard and understood and make concessions where helpful. For example, by using simple language like ‘I understand that must be difficult, and I can see the impact it is having on you. While we don’t agree that you are being bullied, we want you to feel safe at work, and want to work with you to help. Have you thought about whether you’d like to move desks?’. A simple offer, combined with genuine understanding can go a long way.
Employment law, especially people management, is rarely black and white. We always encourage our clients to be proactive with their management action where they can, so please do not hesitate to get in touch if you have any questions.
This article was co-authored with support from Caroline Mostafa and Greg Doran.
Employment law, especially people management, is rarely black and white. We always encourage our clients to be proactive in their management actions where possible, so please do not hesitate to get in touch if you have any questions.
Emma Sutton – esutton@nevettford.com.au – Associate Director – Litigation & Workplace Relations
Caroline Mostafa – cmostafa@nevettford.com.au – Senior Associate – Litigation & Workplace Relations