Is an unfair workplace investigation reasonable management action?

Based on one recent decision, the short answer is, "probably". Here's why ...

Under the Fair Work Act, “reasonable management action carried out in a reasonable manner” does not constitute workplace bullying.

The recent decision of NB (Anonymised) is a useful example of how that phrase should be interpreted in the context of a workplace investigation.

The employee in that case worked as a cleaner at a shopping centre. She made a stop bullying application arising from a series of issues, including how a workplace investigation into her conduct was conducted.

The workplace investigation involved two series of allegations.

• The first series of allegations was put to the employee in a letter of allegations dated 18 January. The employee was asked to respond by 19 January and then attend a meeting on 21 January.

• The second series of allegations was put to the employee in a letter of allegations dated 13 February. The employee was asked to respond by 18 February and then attend a meeting on 22 February.

The Commission decided that there was a lack of procedural fairness in relation to the first letter of allegations because of the short time allowed for a response. The Commission observed that the time allowed to respond to the second letter of allegations was “more favourable”.

Despite the Commission’s criticism of the time allowed for the employee to respond to the first letter of allegations, the Commission nevertheless found that the employer’s conduct as a whole was reasonable management action taken in a reasonable manner.

The case is another example of the principles that:

• Reasonable management action carried out reasonably does not mean that the action has to be “perfect” or “ideal”
• A “course of action may still be ‘reasonable action’ even if particular steps are not”.