In a first of its kind decision in the Fair Work Commission’s (FWC) anti-bullying jurisdiction, the FWC has issued an Interim Order preventing an employer from finalising disciplinary proceedings against, and terminating the employment of, a senior executive pending the outcome of her substantive anti-bullying application. Lauren Townsend examines the decision and what this means for employers, below.
The case (Application by Lynette Bayly  FWC 1886) concerns an application for stop-bullying orders in the FWC’s anti-bullying jurisdiction under s. 789FC of the Fair Work Act 2009 (Cth). The Applicant, Ms Bayly, is employed by Bendigo Kangan Institute t/a Bendigo TAFE, Kangan Institute (BKI) as an Executive Director. The Respondents were BKI and some of its senior executive staff.
The sequence of key events was described to the FWC as follows:
- Ms Bayly made a complaint against one of the named Respondents. Allegations of misconduct were then made against Ms Bayly and an external investigator was appointed by BKI. That investigation was ultimately finalised up to the point of draft findings having been made;
- On 10 March 2017, Ms Bayly lodged an anti-bullying application with the FWC, contending that the misconduct allegations and the investigation (along with other behaviour) amounted to ‘workplace bullying’ against her within the meaning of the FW Act. The matter was listed for first conference on 3 April 2017;
- On 28 March 2017, BKI advised Ms Bayly that she was being stood down on full pay and was directed to attend a meeting on 3 April 2017 at which she would have an opportunity to respond to the draft investigation findings, so that BKI could then finalise the investigation and determine any disciplinary outcomes. This was said to be BKI’s sixth attempt to receive a response from Ms Bayly, and BKI considered that it was entitled by that time to close the matter out and determine any disciplinary steps with or without her response. The draft investigation findings (which had been provided to Ms Bayly) indicated some level of wrong-doing by Ms Bayly and it was her belief that there was a risk BKI would terminate her employment (the FWC described the potential dismissal as a “likely option”);
- Ms Bayly was subsequently medically certified as unfit to attend work over the period 30 March 2017 to 23 April 2017 on the basis of depression and anxiety. Also on 30 March, her lawyers wrote to BKI seeking an undertaking that it would not require Ms Bayly to attend a meeting (or take any further action on the matter) until she was fit to return to work – this was something BKI did not agree to;
- On 2 April 2017, Ms Bayly sought an Interim Order from the FWC preventing the Respondents from taking disciplinary action against her pending the outcome of her FWC anti-bullying application. Ms Bayly’s application was opposed by BKI. By that stage, the FWC had not had the opportunity to hear any of the evidence in respect of the substantive anti-bullying application – the first conference having been listed for 3 April 2017;
- On 4 April 2017, the FWC issued an interim order pursuant to s. 589(2) of the FW Act which provided that the Respondents were not to:
“(a) take any further steps to finalise the investigation of [the applicant] leading to the draft Investigation Report dated 24 March 2017;
(b) impose any disciplinary sanction on [the Applicant] in or in connection with that investigation; and/or
(c) terminate [the Applicant’s] employment”,
until the substantive bullying application was heard and determined by the FWC or further order of the FWC (with broad liberty for a party to apply to seek variation or rescission of the Order).
The basis for the Interim Order
Section 589(2) of the FW Act gives the FWC the broad power to “make an interim decision in relation to a matter before it”.
In making her application for the Interim Order, Ms Bayly submitted that unless the Interim Order was made, BKI may terminate her employment, thereby denying FWC jurisdiction to determine her anti-bullying application (and this in itself would amount to further bullying conduct). On the other hand, if the FWC were to hear and determine her substantive anti-bullying application in her favour, the investigation itself could be found to amount to workplace bullying and an order could be made by the FWC that the investigation process should cease. Further, if she were sacked, Ms Bayly would not be entitled to bring an unfair dismissal claim because she did not meet the criteria for doing so.
Commissioner Hampton’s decision to grant the Interim Order was carefully considered, having regard to whether there was a serious issue to be tried, the balance of convenience, the circumstances of the parties and the overall context. The Commissioner had particular regard to:
- the fact that allowing BKI to conclude the investigation (which was a central component of Ms Bayly’s substantive anti-bullying application) and potentially terminate Ms Bayly’s employment would put an end to her FWC bullying application, in circumstances where the purposes of the anti-bullying provisions are to prevent bullying and there would be no capacity for the FWC to determine her bullying application and order reinstatement;
- by that early point in the process the FWC had not had an opportunity to objectively determine the veracity of the draft investigation findings;
- the FWC would be able to determine her substantive anti-bullying claim before she may be fit to return to work on 23 April 2017; and
- BKI was a large employer and Ms Bayly was stood down on full pay.
Ultimately, the Commissioner decided that it was more important that Ms Bayly be given the opportunity to run her substantive bullying case against BKI, than to preserve BKI’s discretion as her employer to terminate her employment.
Does this decision give your employees greater power to prevent you from concluding a disciplinary process against them by alleging workplace bullying and going on sick leave?
The following passage from Commissioner Hampton’s decision may give employers some level of comfort:
“ I would also observe that given the scheme of the [FW] Act, interim orders of the nature being considered here would not be issued lightly. The direct intervention of the Commission at such an early stage of the proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience necessary for such action. Of course, each application must be considered in its own right and circumstances.
 As BKI contended, 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. In this case, there are some particular circumstances that have justified the making of the interim order” (emphasis added).
It therefore seems that the ‘stars were aligned’ for the making of the Interim Order in Ms Bayly’s case. However (as many employers will be keenly aware), it is not difficult to see how a similar set of circumstances could occur again in the case of a carefully advised employee.
We recommend that where workers are covered by the FW Act’s anti-bullying provisions, employers seek appropriate legal advice early on in an investigation and/or disciplinary process where the respondent alleges workplace bullying.
 It is well established that the FW Act’s anti-bullying provisions are directed to preventing the bullying at work of workers, and that orders cannot be made under those provisions where the worker’s engagement/employment is no longer on foot.