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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michael Selinger
Similar Articles
Relevancy Powered by MondaqAI
Coleman Greig Lawyers
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Coleman Greig Lawyers
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions