Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case illustrates an innovative way in which the Commission's anti-bullying jurisdiction can be used to powerful effect by employees facing disciplinary proceedings - and opened a Pandora's Box for employers.

In Lynette Bayly [2017] FWC 1886, the Commission issued an interim order preventing an employer from taking any further steps to finalise an investigation into the conduct of an employee, impose any disciplinary sanction on the employee arising from the investigation or terminate the employment of the employee. 

Interplay between claims of bullying and the investigation: Ms Bayly applies for an interim order

Ms Bayly had made a "stop bullying" application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Notwithstanding the application, the employer continued its investigation and, as part of that process, told her that draft findings had been made. She was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Shortly thereafter, Ms Bayly's lawyers wrote to the employer indicating she was certified unfit for work for a period that extended beyond the date of the proposed meeting.  On this basis they sought an undertaking from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in respect of the allegations under investigation.  The employer declined, affirming its intention to proceed with the disciplinary process.

This led to Ms Bayly seeking an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

"The FWC may make an interim decision in relation to a matter before it."

Can the interim order be made?

The employer opposed the interim order on a number of bases, including that:

• Ms Bayly had not provided a substantive response to the investigation;
• the investigation was being conducted in a "reasonable manner";
• any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
• the draft findings of the investigation are adverse to Ms Bayly; and
• if Ms Bayly were to be dismissed, she has other remedies available to her. 

In effect, said the employer, the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment, 

"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." [emphasis added]

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where "the balance of convenience" lies. He then observed:

"It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered."

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

• claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
• the fact preliminary adverse findings had been reached against Ms Bayly;
• Ms Bayly's medical condition;
• concerns expressed about the employer's process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment. 

Commissioner Hampton was satisfied

"… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is 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 allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose." 

Interestingly, a key aspect of the anti-bullying jurisdiction - that no orders can be made once the employment relationship is at an end (except in very limited circumstances) - was identified as,

"…a significant factor directly relevant to the balance of convenience and the exercise of any discretion".

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the  interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is a very interesting development - and one that should be watched carefully by employers. It may well be a portent of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer's disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the courthouse if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

"given the scheme of the 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 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 for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as 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."

Notwithstanding Commissioner Hampton's words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should :

• ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is "reasonable management action carried out in a reasonable manner");
• be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).