In a landmark decision in a case under the anti-bullying jurisdiction of the Fair Work Act, Fair Work Commission (“FWC”) restrained an employer from imposing disciplinary sanctions on an employee, (including dismissing the employee), or taking further steps in a disciplinary investigation until the FWC had determined the employee’s anti-bullying application.
The case of Lynette Bayly (AB2017/134) involved Ms. B, who is an Executive Director of Bendigo TAFE. In her anti-bullying application, she alleged that Bendigo TAFE levied allegations of misconduct against her and instigated a disciplinary investigation after Ms. B made a complaint against another senior executive. Ms. B further alleged that the actions of Bendigo TAFE and 3 senior officers of the TAFE amounted to workplace bullying.
Ms. B alleged that these actions resulted in her being certified unfit for work from 30 March until 27 April and as such she was unfit to participate in the investigation for that period. Her lawyers wrote to Bendigo TAFE seeking undertakings that it would not proceed to determine the allegations until Ms. B was certified fit to attend work and able to provide responses to the allegations. Bendigo TAFE refused to give the undertakings advising that it intended to proceed to finally determine the allegations based on the findings of a Draft Investigation Report. Therefore, Ms. B filed anti-bullying application.
In a twist to the usual anti bullying application, Ms. B sought an interim order under s.589 of the Fair Work Act effectively restraining Bendigo TAFE and three senior officers from continuing with the investigation and from taking any disciplinary action against her pending the determination of the anti-bullying application.
At the hearing of the s.589 application, Ms. B argued that she was concerned that in circumstances where Bendigo TAFE refused to halt the investigation and were intent on deciding the matter in the absence of any responses from her, she was concerned that Bendigo TAFE would dismiss her. A termination of her employment would frustrate her ability to prosecute her anti bullying application.
Bendigo TAFE denied that the levelling of the allegations and the way the investigation proceeded amounted to bullying, insisting that its decisions represented reasonable management actions. Further, it submitted that Ms. B had other remedies available to her if she was terminated that ameliorated any prejudice to her if she was unable to continue with her anti-bullying application.
Commissioner Hampton weighed up the available evidence before the tribunal and decided that Ms. B’s anti bullying application had prima facie merit and there was a sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.
The Commissioner therefore made an interim order restraining Bendigo TAFE from taking any further steps to investigate the allegations or imposing any disciplinary sanctions including termination on Ms. B until her substantive anti bullying application is heard.
Lessons from the case;
The case highlights the evolving nature of the anti-bullying jurisdiction of the FWC.
The decision is the first of its kind whereby the FWC has restrained an employer in this manner pending the outcome of an anti-bullying application.
It has the potential to dramatically affect the way in which disciplinary investigations are undertaken and may open another avenue for employees faced with questionable allegations of misconduct, that have been brought in retaliation for the employee lodging complaints.
As such, employees may have another way in which to prevent employers from proceeding to terminate them, in addition to bringing a claim for adverse action
Equally, the case send a warning to employers that they may not be able to merely rely on the defences of reasonable monument actions, or other remedies being available that have been accepted in the past. As this case demonstrates, the FWC is willing to restrain employer in anti-bullying cases if the tribunal considers that there is reasonable case of bullying to be decided at a final hearing.
A link to the case is below;
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1886.htm
A link to the Interim Order is below;
https://www.fwc.gov.au/documents/awardsandorders/html/pr591575.htm
Should you require advice on any matters involving bullying, adverse action or the Fair Work Act generally, feel free to give Michael a call on 02 8667 3094 or michael@michaeldohertylegal.com.au
