Maurice Blackburn Lawyers has successfully obtained the first interim order in the Fair Work Commission (FWC) anti-bullying jurisdiction.
The interim order stopped an employer from:
- terminating the employee, pending a full hearing.
- taking any further steps to finalise an investigation into the employee; and
- imposing any disciplinary sanction in connection with the investigation on the employee.
The case was run by Kamal Farouque and Bridie Murphy of the Maurice Blackburn Employment Practice.
Impact of the Decision
The decision is a ground breaking outcome.
It shows that, in an appropriate case, the FWC can move quickly and on an interim basis to restrain conduct which is alleged to constitute bullying.
The decision has been described by one employer law firm as ‘opening Pandora’s Box for employers’ and another as providing opportunity for ‘employees (and their representatives) to hijack disciplinary and performance management processes’.
The decision is consistent with the very purpose of the FWC anti-bullying jurisdiction. The jurisdiction is intended to protect employees from bullying at work and ensure that allegations of bullying are dealt with quickly and effectively.
The employee made a complaint to her employer about bullying she was being subjected to by a colleague. Allegations of misconduct were subsequently raised against the complainant employee, and the employer instigated an investigation into her conduct.
The employee lodged a ‘stop bullying’ application in the FWC alleging that she was being bullied at work, in particular that the investigation into her conduct itself constituted workplace bullying.
The investigation proceeded to the point of draft findings and recommendations being made against the employee. The employee was stood down and directed to attend a meeting on 3 April 2017, at which the employee could respond to the findings, the investigation would be concluded and employment outcomes would be communicated. The employee believed that she would be terminated at this meeting.
The employee was medically certified as unfit for work due to a depression and anxiety condition for the period 30 March 2017 to 23 April 2017.
On 30 March 2017, Maurice Blackburn Lawyers sought an undertaking from the employer that it would not require the employee to attend the meeting, respond to the findings or impose any disciplinary sanction in respect of the investigation until she was fit to return to work.
The employer refused to provide this undertaking, and stated it would proceed with the disciplinary process as planned.
On 2 April 2017, Maurice Blackburn Lawyers applied to the FWC for an interim order preventing the employer from continuing with this course until the employee’s anti-bullying application had been heard and determined.
A hearing was conducted before Commissioner Hampton on 3 April 2017.
Decision to Issue an Interim Order
On 4 April 2017, Commissioner Hampton issued the interim order.
In determining whether to make an interim order, the Commissioner applied the following test:
- Was there a prima facie case?
- What was the balance of convenience between the parties?
On the question of a prima facie case, Commissioner Hampton found that:
- the anti-bullying application had prima facie merit and “sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission”; and
- a continuation and finalisation of the investigation, while the employee was unfit, could be found to be continuation of unreasonable behaviour by Institute.
On the question of balance of convenience, Commissioner Hampton found that this was firmly in favour of an interim order having regard to the following:
- a termination would have extinguished the employee’s right to have her substantive anti-bullying application heard and determined. This is because the anti-bullying jurisdiction does not allow orders be made after the employment relationship has ended.
- Any potential prejudice to the Institute by the making of the Interim Order.
Ultimately, Commissioner Hampton found that the anti-bullying application had prima facie merit and “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 decision can be read at https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1886.htm