Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.
A recent Fair Work Commission case illustrates an innovative way in which the Commission's anti-bullying jurisdiction can be used to powerful effect by employees facing disciplinary proceedings - and opened a Pandora's Box for employers.
In Lynette Bayly  FWC 1886, the Commission issued an interim order preventing an employer from taking any further steps to finalise an investigation into the conduct of an employee, impose any disciplinary sanction on the employee arising from the investigation or terminate the employment of the employee.
Interplay between claims of bullying and the investigation: Ms Bayly applies for an interim order
Ms Bayly had made a "stop bullying" application to the Commission alleging she had been subject to bullying at work. The alleged bullying included the investigation by the employer into her conduct.
Notwithstanding the application, the employer continued its investigation and, as part of that process, told her that draft findings had been made. She was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.
Shortly thereafter, Ms Bayly's lawyers wrote to the employer indicating she was certified unfit for work for a period that extended beyond the date of the proposed meeting. On this basis they sought an undertaking from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in respect of the allegations under investigation. The employer declined, affirming its intention to proceed with the disciplinary process.
This led to Ms Bayly seeking an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim. The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:
Can the interim order be made?
The employer opposed the interim order on a number of bases, including that:
- Ms Bayly had not provided a substantive response to the investigation;
- the investigation was being conducted in a "reasonable manner";
- any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
- the draft findings of the investigation are adverse to Ms Bayly; and
- if Ms Bayly were to be dismissed, she has other remedies available to her.
In effect, said the employer, the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,
It did not, however, say that the Commission had no power to make the order.
Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where "the balance of convenience" lies. He then observed:
In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered."
Should the interim order be made?
The next issue was looking at the particular circumstances of this case. The Commission took into consideration:
- claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
- the fact preliminary adverse findings had been reached against Ms Bayly;
- Ms Bayly's medical condition;
- concerns expressed about the employer's process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.
Commissioner Hampton was satisfied
Interestingly, a key aspect of the anti-bullying jurisdiction - that no orders can be made once the employment relationship is at an end (except in very limited circumstances) - was identified as,
Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.
How does this affect future disciplinary proceedings?
This decision is a very interesting development - and one that should be watched carefully by employers. It may well be a portent of what is to come for employers undertaking investigations and disciplinary processes.
The interim order has effectively halted (for the time being) the employer's disciplinary process. The likely next step is the resolution of the substantive bullying claim.
Does this mean employers and employees will be in a race to the courthouse if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):
Notwithstanding Commissioner Hampton's words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.
To put themselves in the best position to defend such applications employers should :
- ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is "reasonable management action carried out in a reasonable manner");
- be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).
- CU LAB: Bullying on employers' social media - who's responsible?
- Employers to take care when conducting bullying investigations
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.