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Stop right now – investigation put on hold

Anthony Massaro, Libby Pallot, Abbey Burns, Ben Tallboys and Caitlin Walsh

Some employees use various tactics to resist ‘facing the music’ when they are required to participate in a disciplinary process. A recent decision by the Fair Work Commission creates a precedent for another avenue for delay.

In Lynette Bayly [2017] FWC 1886, the Commission issued an interim order temporarily restraining Bendigo TAFE, Kangan Institute (Bendigo TAFE) from finalising a misconduct investigation, taking any subsequent disciplinary action and/or terminating the employment of its Executive Director, Ms Bayly, pending an outcome in Ms Bayly’s anti-bullying application.  


Background

Ms Bayly made a complaint against a senior executive at Bendigo TAFE.  Allegations of misconduct were also made against Ms Bayly.  On 31 January 2017 Bendigo TAFE commenced an investigation into Ms Bayly’s behaviour.  Ms Bayly then applied to the Commission for an anti-bullying order, alleging that she was being bullied at work, including by way of her employer’s investigation into her behaviour.  

Bendigo TAFE continued with its misconduct investigation and wrote to Ms Bayly (who was certified unfit to work and stood down on full pay) requesting her participation in the investigation.  This led to Ms Bayly applying to the Commission for an interim order to prevent Bendigo TAFE from continuing with the investigation or from taking any disciplinary action arising from it, pending the determination of her substantive bullying claim. 

Ms Bayly argued that the allegations of misconduct against her, and the investigation itself, were acts of unreasonable behaviour and constituted "bullying".  She also argued that if her employment was terminated, she would be denied the benefit of her anti-bullying application (as she could no longer seek or obtain a stop bullying order once she was no longer at work and able to be bullied). 

Bendigo TAFE argued that its investigation, and any proposed disciplinary action, was reasonable management action, particularly because the investigation was being conducted by an independent investigator who had been engaged by the Board.


The interim order

After hearing from both parties, the Commission made an interim order preventing Bendigo TAFE from finalising its investigation, imposing any disciplinary sanction on Ms Bayly in connection with that investigation and/or terminating her employment.

The order was made for the following reasons:

  1. Ms Bayly's claims, if supported by evidence, would be grounds to support a finding that she was “bullied” at work.
  2. The continuation and finalisation of the investigation could be found to be a continuation of the relevant unreasonable behavior.                                                                                                         
  3. As Ms Bayly had been stood down on full pay, and was medically unfit to attend work in the short term, the granting of the order would not cause a significant inconvenience to Bendigo TAFE.                        
  4. Ms Bayly’s dismissal would deny her having her anti-bullying application heard and determined.             
  5. In the absence of interim orders, there was a real prospect that the disciplinary proceedings would result in Ms Bayly’s dismissal. 

 

What does this decision mean for employers?

This is the first interim order that has been made in an anti-bullying application proceeding.  This decision may encourage other employees to seek interim orders alongside anti-bullying applications, particularly where they believe a disciplinary process may result in dismissal. 

However, the Commission cautioned employees against casually using the anti-bullying jurisdiction to stymie an employer’s right to take appropriate disciplinary action in the workplace by making the following points:

  1. The Commission should exercise considerable caution when considering direct intervention at an early stage of proceedings.                                                                                                           
  2. The mere allegation that a disciplinary process was relevant to a workplace bullying complaint, on its own, is unlikely to trigger the balance of convenience necessary for the making of an interim order.        
  3. Each application must be considered in its own right and circumstances.                                            
  4. The Commission should be alert to the undesirability of permitting the anti-bullying jurisdiction to be used to circumvent reasonable disciplinary action and its consequences. 

Employees seeking to deter disciplinary action will also need to consider the high costs associated with seeking an interim order, and the fact that such costs would ordinarily not be recoverable from an employer even following an order being made.

From an employer’s perspective it remains the case that the best way to minimise the risk of the Commission intervening in management decisions is to demonstrate that they are taking meaningful steps to address any concerns about the substance of those decisions (or the processes associated with those decisions).

Please do not hesitate to contact our Workplace Relations, Employment and Safety team if you would like advice on how to manage bullying in the workplace and how to appropriately respond to anti-bullying applications.

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