22 May 2017

In the recent decision of Lynette Bayly [2017] FWC 1886, the Fair Work Commission (FWC) issued interim orders preventing the employer from finalising a workplace investigation or imposing any disciplinary action until the employee’s workplace bullying application is heard.

Facts

The applicant, Ms Lynette Bayly, was employed by Bendigo Kangan Institute (BKI). Ms Bayly was the subject of an ongoing investigation for misconduct. During the investigation, Ms Bayly made an application to the FWC for a stop bullying order under section 789FC of the Fair Work Act 2009 (Cth).

Ms Bayly’s application alleged that the investigation into her alleged misconduct only arose after she raised complaints about workplace bullying against senior leaders of BKI. Ms Bayly’s application stated that the allegations of misconduct and the investigation constituted workplace bullying within the meaning of section 789FD of the Act.

On 28 March 2017, BKI notified Ms Bayly that draft findings of the investigation had been determined. Ms Bayly was stood down and directed to attend a meeting on 3 April 2017 to provide her with an opportunity to respond to the draft findings of the investigation. BKI intended to conclude the investigation and determine the outcome of its investigation. Ms Bayley believed that her employment would be terminated at the 3 April 2017 meeting.

On 30 March 2017, Ms Bayly’s solicitors notified BKI that Ms Bayly was certified as unfit to work until 23 April 2017 and sought an undertaking that BKI would not take any further steps in the investigation or disciplinary action until she was fit for work. The undertaking was not provided.

Application for interim orders

On 2 April 2017, Ms Bayly applied for an interim order from the FWC under section 589 of the Act to prevent BKI taking any further steps until the stop bullying application was heard.

Commissioner Hampton heard the application for interim orders on 4 April 2017. Commissioner Hampton first confirmed that the power of the FWC to issue a stop bullying order under section 789FC of the Act is limited to preventing the employee from being bullied, with the aim of resolving the matter and enabling normal working relationships.

Commission Hampton then confirmed that, for the FWC to issue an interim order under section 589 of the Act, he must:

  • be satisfied that the applicant has established a prima facie case with a probability of the applicant being entitled to relief at a trial of the matter; and
  • address the balance of convenience, being the inconvenience or injury to the applicant as compared to the respondent in granting the interim order.

The prima facie case and the balance of convenience must be assessed having regard to the nature of the stop bullying application, the nature of the available remedies, and the circumstances of the parties. Furthermore, it was necessary to consider the purpose of interim orders, notably to preserve the ability of the applicant to continue her application in circumstances where there was a likelihood her employment would be terminated by BKI.

Decision

Commissioner Hampton noted that considerable caution should be exercised in intervening at such an early stage of proceedings as the employer had not had an opportunity to respond to Ms Bayly’s application. However, he was satisfied that Ms Bayley’s case had, on its face, enough merit to justify making the interim order. Commissioner Hampton found that Ms Bayly’s allegations, if substantiated, would be grounds to conclude there was workplace bullying within the meaning of section 789FD of the Act. Further, the continuation of the investigation and finalisation of any disciplinary action while she was unfit for work could be seen as an extension of the alleged bullying.

In addressing the balance of convenience, Commissioner Hampton noted that there was potential prejudice to BKI as they would, in effect, be required to continue to employ Ms Bayly. However, this was outweighed by the potential prejudice to Ms Bayly if the investigation continued and disciplinary action taken, including possible termination of employment. If Ms Bayly were dismissed, there would be no risk that bullying at work would continue, which would result in her stop bullying application failing.

Further, Commissioner Hampton found that the FWC would be able to determine the substantive application before the expiry of Ms Bayly’s medical certificate, avoiding significant delay and inconvenience to BKI.

Commissioner Hampton issued an interim order preventing the BKI from finalising its investigation, imposing any disciplinary sanction or terminating Ms Bayly’s employment until the substantive matter was heard.

Learnings

This matter is a timely reminder for employers that they must consider an employee’s bullying complaint if it is made during a workplace investigation or disciplinary process.

Whether the workplace investigation or disciplinary process should be paused until a bullying complaint is also investigated, will depend upon the facts of each situation. It is important that employers seek legal advice before taking any action that may be deemed unlawful.

 

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.