Australia: Anti-bullying application derails misconduct investigation by employer

What you need to know

• The Fair Work Commission recently considered an anti-bullying application made by a worker who had become the subject of a misconduct investigation by her employer.
• The Commission issued interim orders preventing the employer from continuing the investigation until the worker's application had been finalised.
• While the decision was made on an interim basis and as a result of particular circumstances, it demonstrates that the Commission does have the power to intervene in an employer's internal affairs and disciplinary processes where 'stop the bullying' claims are made.

The facts of the case

The employer involved in this case¹ had commenced a misconduct investigation focusing on one of its workers. After that investigation was commenced, the worker filed a 'stop bullying' application under section 789FC of the Fair Work Act 2009 (Cth).

The basis for the worker's application was that the misconduct investigation had been commenced only after she had made a complaint against a senior executive of the business. It was alleged the investigation itself was unreasonable behaviour and this (plus other behaviour) constituted bullying by some of the employer's senior executives.

The employer asserted the investigation it had commenced was reasonable management action carried out in an appropriate and objective way by an independent third party. It argued that "the Commission should be alert to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences".²

At the time of the hearing before the Fair Work Commission, the worker had been notified that the investigation was in its final stages and her attendance was required for her to respond. Shortly after receiving notification, the worker advised the employer she was medically unfit for work and would not be attending.

The Commission's decision

The Commissioner hearing this matter recognised the employer's concerns, but highlighted that for an interim order to be successful, the Commission needs to be satisfied of two things:

1. there is a sufficient likelihood of success
2. the harm caused by not granting the order outweighs the harm if the order is granted.

In this case, the Commissioner was satisfied that both factors had been achieved. Central to the Commissioner's decision was the eligibility requirements to access the anti-bullying jurisdiction under the Fair Work Act. To be able to apply for a stop bullying order under section 789FC, a worker must be at risk of being bullied at work. Here, the Commissioner was satisfied that if the investigation were allowed to continue, it was likely that the worker would have been dismissed and would no longer have the ability to have her anti-bullying application heard.

Further, the Commissioner found that the investigation was central to the worker's anti-bullying application and there was sufficient evidence that if the worker was successful, the continuation of the investigation would be considered unreasonable behaviour. Accordingly, the Commission determined that it was necessary to preserve the status quo until the worker's application was objectively determined.

Implications of the decision

The Commission made it clear that this decision should not open the floodgates for the anti-bullying jurisdiction to be relied upon by workers trying to avoid disciplinary proceedings. It was an interim decision, restricted to its own particular set of facts.

Nevertheless, the decision clearly demonstrates the extent of the Commission's powers to scrutinise an employer's affairs where 'stop the bullying' claims are made. The decision also illustrates the Commission's willingness to intervene in misconduct investigations and disciplinary processes to scrutinise whether or not they are reasonable.

This article is intended to provide commentary and general information. It 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 article. Authors listed may not be admitted in all states and territories