Directing employees to return to the office: Reasonable or bullying?

With many organisations contemplating a return to the office, tensions may arise between the needs of the organisation and the desire of employees to continue working from home.

Traditional thinking about the viability of employees working from home and the associated logistical issues had to be quickly set aside during the COVID-19 pandemic. 

So how do organisations transition their workforces back into the office without complaints of bullying being made by unhappy employees who could claim they are being forced back to the workplace?

Some organisations may take a wide-ranging approach with announcements, memos and emails outlining broad details and directions about when and how employees will return to the office.

However, in many cases, it may be up to individual department and line managers to implement the plans and ensure that directives are followed, and they may be working with smaller groups or individual employees.

The danger is that the return-to-office direction can result in disgruntled employees making complaints that the direction is bullying or that it had been delivered in a bullying manner. These employees may claim that returning to work in the office is detrimental to their health and wellbeing.

As a workplace investigator, when I am engaged to investigate complaints against managers, I must consider whether or not the action/s of the manager was bullying or reasonable management action.

The Fair Work Act s789FD (2) states: “Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.”

The explanatory memorandum to the Fair Work Amendment Bill 2014 suggests that the term may be required to be given a wider meaning under s.789FD (2): 

“Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.”

This suggests that the legislature intended everyday actions to ‘effectively direct and control the way work is carried out’ to be covered by the exclusion.

Is directing employees back to the office reasonable management action?

To answer this, an investigator must address three parts of the question.

The first part of the question to be examined: ‘Is the behaviour a management action?’

It is not difficult to argue that organisations and persons conducting a business have rights and obligations to take appropriate management action and make appropriate management decisions. In this case, I consider the decision to return employees to the office is consistent with the definition of a management action.

The second part of the question: ‘Was the management action reasonable?’

The Fair Work anti-bullying benchbook states: 

“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, including: the circumstances that led to and created the need for the management action to be taken in this case the needs of the organisation against the risks of COVID-19; the circumstances while the management action was being taken; and the consequences that flowed from the management action.”

In this case, the needs of the organisation must be fairly weighed up against the risks associated with COVID-19 and returning to the office and what measures have been put in place to ensure the welfare of employees.

I do not feel this question is difficult to answer given that working from home was a result of COVID-19 and if it is now deemed safe to return to the office then it is reasonable to take the management action.

The third question: ‘Was the management action carried out in a reasonable manner?’

This question is where most complaints against managers are based.

Once again, the Fair Work anti-bullying benchbook provides guidance in this area:

“Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters management actions do not need to be perfect or ideal to be considered reasonable.”

What does the investigator look at?

As an investigator, I look at all three questions, but generally, my findings turn on the last question where I review all of the evidence in relation to the actions of the manager.

• What was said, how was the message or direction delivered?
• What was the tone and attitude of the manager when delivering the direction? Was it aggressive, threatening, demeaning or belittling?
• Did the manager behave in a reasonable manner?
• What was the relationship between the parties before and during the work-from-home period?

Unfortunately, in the past, I have found the fear of bullying complaints has caused some managers to be reluctant to have difficult conversations around performance and behaviour.

The fear is often based on not having an understanding of what reasonable management action is how, and to ensure that their behaviour, decisions and communications fall within the definition of S789FD (2) of the Fair Work Act.

Advice for employers and managers

• Conversations about returning to the office are going to be unavoidable.
• The line between reasonable management action and bullying can be fine and can depend on clear and open communications.
• When discussing the issue of returning to the office, listen to your employees’ concerns and viewpoints.
• Listen to understand not just to respond.
• It can be difficult to clearly express yourself via email, so remember to proofread your emails before sending.
• Be careful of broad or blanket decisions.
• If you are not sure about what reasonable management action is or how to conduct and implement it, then get training.

What has the Fair Work Commission had to say about reasonable management action

In Re Ms SB [2014] FWC 2104, commissioner Hampton stated (paragraph 51): 

• “Management actions do not need to be perfect or ideal to be considered reasonable”;
• “To be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’”; and
• “Any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it.”

Bottom line

If carried out in a reasonable manner, a direction to employees to return to the office is a reasonable management action and not workplace bullying under s789FD (2) of the Fair Work Act.