Stop right now: Employer prevented from proceeding with investigation and disciplinary process

The Fair Work Act 2009 (Cth) (FW Act) gives  the Fair Work Commission (the Commission) the power to make orders to stop bullying where it is satisfied pursuant to section 789FF that:

  1. A worker has been bullied at work by an individual or group of individuals; and
  2. There is a risk that the worker will continue to be bullied at work by the individual or group.

In Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408 (Shaw decision) an application was lodged by the employer seeking an order that the Commission dismiss an anti-bullying application. The Employer argued that the application had no reasonable prospects of success as the Employee was terminated from his employment and accordingly no longer at risk of being bullied “at work”.

The Commission agreed that it in accordance with section 789FF of the FW Act, it was unable to make an order to stop bullying as there was no longer a risk to the Employee that the bullying would continue as his employment had been terminated.

Since the Shaw decision, the Commission has accepted that where employees are no longer employed in the workplace where the bullying behaviour was alleged to have occurred, the Commission cannot make stop bullying orders as there is no risk that the employee will continue to be bullied at work.  As a result, such applications have been dismissed by the Commission.

In the Commission’s recent decision, Lynette Bayly [2017] FWC 1886 (Bayly decision), the Employee sought to overcome this by seeking an interim order from the Commission preventing her dismissal pending the outcome of her anti-bullying application.

Ms Bayly (the Employee) was employed by Bendigo Kangan Institute T/A Bendigo TAFE, Kangan Institute (the Employer) as an Executive Director. The Employee made an application for stop bullying orders alleging that she was bullied by other senior executive staff (the Respondents). At the same time, the Employer was in the process of conducting an investigation into allegations of misconduct made against the Employee. The Employee claimed that Employer’s investigation into her alleged misconduct constituted bullying conduct and only arose after she made a complaint against another executive staff member.

Before the anti-bullying application was heard, the Employee applied for an interim order from the Commission preventing the Employer and the other named Respondents from continuing with their investigation, disciplinary process and from terminating her employment. The Employee argued that the Employer intended to meet with her so that she could respond to the draft findings of the investigation after which point the Employer would decide on disciplinary action, including determining whether to terminate her employment. The Employee submitted that should her employment be terminated, the Commission would not have jurisdiction to determine her application for stop bullying orders on its merits.

For its part, the Employer resisted the application for interim orders. It submitted that the investigation was carried out in a reasonable manner and it should be able to act on the outcome of the concluded investigation. It also submitted that the interim orders “sought to go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

The Commission held that, while intervention in proceedings before the substantive application was heard should be approached with “considerable caution”, the balance of convenience favoured the exercise of discretion to make the interim orders.  The Commission was satisfied that on the face of the anti-bullying application, it had merit and a sufficient likelihood of success such that the present circumstances should be maintained before it was fully considered.

In particular, the Commission was concerned that the Employee would be prejudiced as the termination of her employment would compromise and deny her anti-bullying application from being heard given the requirements in section s789FF of the FW Act as outlined above.  Accordingly, the Commission made interim orders that until the substantive anti-bullying application was determined, the Employer was prevented:

  1. From taking further steps to finalise the investigation;
  2. Imposing any disciplinary sanction on the Employee in relation to the investigation; and / or
  3. Terminating the Employee’s employment.

What does this mean for employers?

In Bayly, the employee has both lodged an anti-bullying application in the Commission and was successful in her application for an interim order to hold out the conclusion of the investigation and preventing disciplinary action or termination of her employment. 

Employers should be aware of that the Bayly decision marks a new development in the anti-bullying jurisdiction and that such interim applications can be made by employees to potentially halt disciplinary action or termination of their employment.  

 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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