Order up: FWC refuses to stay dismissal despite stop bullying application

The power of the Fair Work Commission (FWC) to make orders in applications for stop bullying orders is unique. While the ambit of the FWC’s power is broad, in that it can make any orders that it considers appropriate (other than orders providing for monetary compensation), those orders must be directed at preventing or stopping workplace bullying.

A question that has arisen in recent decisions relating to applications for stop bullying orders is whether an employer is permitted to commence or continue with performance management or disciplinary processes if those processes are the subject of an employee’s application.

It has become increasingly common for employees to seek orders from the FWC which prohibit an employer from engaging in disciplinary action against them (whether on an interim basis until the application can be determined, or as a full and final order).

However, the FWC has made it repeatedly clear that this jurisdiction is not one that is intended to delay or prevent employers from engaging in legitimate disciplinary processes and applications that seek to do this will be dismissed.

In Mayson v Mylan Health Pty Ltd [2020] FWC 1404, the FWC has again confirmed this position. The stop bullying application filed by the employee contained a number of allegations, including that her employer was bullying her by placing her on an unreasonable Performance Improvement Plan (PIP).

Subsequent to the employee’s application to the FWC, the employer commenced a show cause process in relation to the PIP. The employee then sought undertakings from the employer that it would not dismiss her until her stop bullying application had been determined, however, the employer refused to provide the undertakings. The employee then sought interim orders from the FWC to prohibit the employer from dismissing her until the application was determined.

The FWC was not satisfied that the making of such an order was appropriate in circumstances where it was not yet satisfied that any bullying had occurred or that there was a risk of further bullying.

The FWC was also not satisfied that such an order was appropriately directed at the prevention of bullying in the workplace. It clarified that the purpose of the stop bullying jurisdiction “is not to ensure that employment continues, or to prevent termination of employment in circumstances which are said to be unfair, or otherwise to maintain the status quo until an anti-bullying application can be determined.”

The FWC therefore declined to make the interim orders sought by the employee and referred the substantive matter for determination.

Lessons for employers

This recent decision is further clarification of the unique nature of the stop bullying jurisdiction under the Fair Work Act 2009 (Cth). There is very often an overlap between allegations of bullying in the workplace and disciplinary processes commenced by employers, however, the FWC has made it clear that the stop bullying jurisdiction is not to be used as a tool for employees to prevent their employer from engaging in such processes.

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

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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