Australia: Interim order in the Fair Work Commission anti-bullying jurisdiction stalls a workplace investigation into employee misconduct

Last Updated: 23 April 2017
Article by Michael Selinger and Natasha Jones
Most Read Contributor in Australia, September 2018

For the first time since the anti-bullying provisions were introduced in the Fair Work Act 2009 (Cth) (FW Act) on 1 January 2014, an employee has successfully obtained an injunction following an urgent interim hearing in the Fair Work Commission (FWC) to prevent a workplace investigation going ahead.

In the decision of Lynette Bayly v Bendigo TAFE and others [2017] FWC 1886, the FWC issued an interim order that prevented the employer from proceeding with a workplace investigation into allegations of misconduct, making any disciplinary findings against the employee and/or terminating the employee's employment prior to the FWC determining the employee's substantive application for a stop bullying order.

The case demonstrates the powers of the FWC to intervene in workplace investigations and disciplinary proceedings while an application for a stop-bullying order is on foot. Being the first case of its kind in the anti-bullying jurisdiction, the case illustrates how the anti-bullying provisions interact with the FWC powers to issue interim orders.

Background to the substantive proceedings

The employee, Ms Bayly, an Executive Director at Bendigo TAFE made an application for a stop bullying order against her employer and several senior executive employees (Respondents) under section 789FC of the FW Act.

Ms Bayly had made a complaint to her employer about an executive of her employer. After making the complaint, Ms Bayly was herself the subject of misconduct allegations, and a workplace investigation was initiated into those allegations. During the investigation, Ms Bayly was certified unfit for work due to a depressive illness and was unable to attend a meeting scheduled to discuss the draft findings of the workplace investigation. It was a possible outcome of that meeting that Ms Bayly's employment would be terminated. Ms Bayly then made an application for a stop bullying order under section 789FC of the FW Act on the basis that the investigation was simply an additional bullying step being taken against her as a result of raising the initial complaint (Substantive Application).

The main issue of contention in the Substantive Application was whether the workplace investigation constituted reasonable management action pursuant to 789FD(2) or whether it constituted unreasonable behaviour constituting workplace bullying pursuant to 789FD(1).

Relevant legal background for the substantive hearing

In considering the Substantive Application, the Commission would need to be satisfied before making a stop bullying order that:

  1. the worker had been bullied at work; and
  2. there was a risk that the applicant worker will continue to be bullied at work, (section 789FF, FW Act).

Relevant to the Substantive Proceedings, if an employee is dismissed before substantive proceedings commence, the FWC will be unable to make any orders on grounds that there is no future risk of ongoing bullying.

Application for an interim order

Before the Substantive Application progressed to a conference or hearing in the FWC, Ms Bayly made a further application under section 589(2) of the FW Act for an interim order against her employer to prevent it from proceeding with its investigation into the alleged misconduct and from taking disciplinary action (including termination) against her until a determination of the application for stop bullying orders (Interim Application).

Relevant principles for an interim order

The FWC may issue an interim order in connection with an application for a stop bullying order under section 589 of the FW Act. The FWC must be satisfied before making an interim order:

  1. that there is a prima facie case. That is, if the evidence remains as it is alleged, there is a sufficient likelihood that the employee will be entitled to relief; and
  2. that the balance of convenience weighs in favour of making an interim order. That is, whether the inconvenience or injury that the employee would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the employer would suffer if an injunction were granted.

The FWC approached these considerations by having regard to the nature of the substantive application, the jurisdictional context and the circumstances of the parties.

In determining an interim application in the context of an application for a stop bullying order, the FWC considered it relevant to consider:

  1. the kinds of orders that the FWC may issue in the anti-bullying regime; and
  2. the purpose of interim orders, in particular for the purpose of preserving the capacity to advance the substantive application for a stop bullying order.

Decision

The FWC noted that the presence of a disciplinary process in a workplace bullying complaint will not on its own be sufficient for the FWC to issue an interim order.

Prima facie case

The FWC was satisfied that the application had a prima facie case and that there would be grounds for the making of a stop bullying order in the Substantive Application if the evidence supported Ms Bayly's allegations.

The FWC was not able to reach a conclusion on the merits and the findings of the workplace investigation as it was a mater to be determined in the Substantive Application. However, the FWC suggested that if the prima facie case was established in the substantive hearing, then the continuation and finalisation of the disciplinary investigation would potentially constitute workplace bullying. The FWC noted on a preliminary basis that the investigation and process itself was otherwise procedurally fair.

Balance of convenience

The FWC noted that an interim order would require the employer to continue the applicant's employment but, on the balance of convenience, determined that an interim order should be made for the following reasons:

  1. a dismissal, which was a very real prospect, would deny Ms Bayly from continuing with her application for a stop bullying order;
  2. Ms Bayly was on sick leave, and the FWC would be able to determine the stop bullying application during the period covered by her medical certificate; and
  3. the employer was a large company and had already stood down Ms Bayly and was paying her full pay during that period.

Terms of the interim order

The FWC granted the interim order restraining Ms Bayly's employer from:

  1. continuing with the workplace investigation into the allegations of misconduct;
  2. making any disciplinary findings against the employee;
  3. and/or terminating the employee's employment, prior to the FWC determining Ms Bayly's application for a stop bullying order.

The order applied only to the context in which the application was made, meaning that, any further misconduct on the part of Ms Bayly would not preclude a fresh investigation or disciplinary findings.

The parties were entitled to seek a variation or rescission of the order upon application. The FWC suggested that there may be circumstances, such as a change in Ms Bayly's medical status that could vary the balance of convenience, such that the FWC may make a different finding on any further application to vary the interim order.

The substantive application is yet to be determined by the Commission.

Lessons for employers

This decision demonstrates employers need to exercise caution around any workplace investigations where the employee in question has already raised a bullying complaint or lodged a stop bullying application.

In particular, watch out because:

  • there is a risk those workplace investigations maybe construed by the FWC as further bullying conduct.
  • there is a risk that the FWC may issue interim orders preventing an employer from carrying out its investigation until the FWC has reached a decision on any substantive bullying application.

Importantly, if an employee makes a bullying application to the FWC, and it appears that there are grounds for the FWC to make a stop bullying order, it may be prudent to wait until the FWC has reached its decision before finalising the outcomes of any workplace investigation.

Lynette Bayly v Bendigo TAFE and others [2017] FWC 1886

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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