Anti-bullying orders — an employee’s opportunity to stall disciplinary proceedings?

Key points

• This highly relevant case demonstrates the power of the Commission to intervene in workplace investigations and employers’ disciplinary processes.

• The Commission issued an interim order in the anti-bullying jurisdiction which meant that the employer was prevented from taking any further steps to finalise an investigation into employee misconduct or impose any disciplinary action on the employee in connection with the investigation, until the employee’s anti-bullying application was heard by the Commission.

Background

Lynette Bayly made an application to the Fair Work Commission (Commission) for “stop bullying” orders under the Fair Work Act 2009 (FW Act), alleging that she was subjected to bullying by a number of senior executive staff at her workplace. She alleged that after she had made a complaint against one of the executives, allegations of misconduct were made against her which then led to her employer beginning an investigation into her alleged misconduct. Ms Bayly’s application to the Commission asserted that the allegations of misconduct, the investigation by her employer, and other acts by the senior executives at her workplace, constituted workplace bullying.

The employer opposed the application and contended that, amongst other matters, the investigation (and any proposed disciplinary action) was reasonable management action taken in a reasonable manner.

During the investigation by the employer, Ms Bayly was certified unfit for work due to a depressive illness and was unable to attend a meeting to discuss and respond to “draft findings” from the investigation. Ms Bayly was of the belief that the outcome of the investigation was that her employer would take disciplinary action against her and her employment would be terminated.

Given her employer’s intention to proceed with the investigation and determine the disciplinary action outcomes of the investigation, Ms Bayly sought an urgent interim order under the FW Act seeking to prevent her employer from taking such further action until the outcome of her anti-bullying application was heard by the Commission.

Opposition to interim order

The employer argued that the interim order sought should not be made, and that:

“The Commission is being asked to prospectively injunct [the employer] from possibly dismissing Ms Bayly. That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified. The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

The employer also noted the following relevant factors in support of its opposition:

• The investigation was carried out in a reasonable manner by an independent third party.

• Ms Bayly had been asked to respond to the contents of the draft investigation report on six occasions.

• There were preliminary findings made in the investigation which indicated that there was substance to the allegations made against Ms Bayly.

• If Ms Bayly was dismissed, although it would bring an end to her anti-bullying application (because she would no longer be at risk of being bullied at work), other alternative remedies might be available to her (e.g. an unfair dismissal or adverse action claim).

The Commission’s decision

When considering Ms Bayly’s application for interim orders, the Commission noted that under the FW Act, it must be satisfied of the following matters before making an interim order:

• there is a prima facie case, meaning that there is sufficient likelihood that the anti-bullying application will be successful, which justifies the preservation of the status quo; and

• the balance of convenience weighs in favour of making an interim order, that is that the consequences of not granting the interim order would significantly compromise and potentially deny Ms Bayly’s right to relief.

In this case, the Commission considered that there was a prima facie case as there was a sufficient likelihood of Ms Bayly succeeding in her application. Furthermore, the Commission considered that on the balance of convenience, the interim order should be granted. This was because once Ms Bayly’s employment was terminated, her right to have her bullying application heard and determined would be extinguished as under the FW Act, the Commission can only make orders “to prevent the worker from being bullied at work [emphasis added]”.

The Commission made the relevant orders to prevent the employer from continuing with its investigation or making any disciplinary findings against Ms Bayly until such time as her bullying application was determined by the Commission.

While the Commission was willing to make the relevant orders in this case, it noted that interim orders such as those were made in this case would not be issued lightly and direct intervention by the Commission at such an early stage of proceedings should be exercised with considerable caution. The Commission held that the mere indication that a disciplinary process was involved in a complaint of workplace bullying, without much more, is unlikely to trigger the balance of convenience for intervention by the Commission in most circumstances. The Commission agreed with the employer’s submission that the Commission should be conscious of the undesirability of allowing the anti-bullying jurisdiction to be used to circumvent reasonable disciplinary action unless there are particular circumstances which justify the making of an interim order. 

Bottom line for employers

• Despite the Commission’s warning that the anti-bullying jurisdiction should not be used to circumvent reasonable disciplinary action, this case has opened the door for employees to attempt to stall workplace investigations and disciplinary proceedings.

• Accordingly, employers should be mindful that if an employee makes a stop bullying application to the Commission, it is now possible that they will be ordered on an interim basis to not take further steps in a misconduct investigation against that employee.

• Employers must be careful when deciding to commence or pursue workplace investigations where the relevant employee has already made allegations of bullying or lodged an antibullying application. Consider pausing the investigation until the application has been heard to prevent such interim orders being issued.

• Employers should ensure that they carry out workplace investigations in a reasonable manner that could not be considered to constitute “bullying”. In this way, employers may reduce the likelihood that such interim orders will be issued by the Commission, and also reduce the likelihood of a successful application.