Short term relief: interim orders to stop bullying

5 February 2020
Between 15% and 33% of workers have been bullied in Australian workplaces.[1]

The Fair Work Act 2009 (Cth) (the Act) allows eligible workers to make an application to the Fair Work Commission (the Commission) seeking orders that the bullying stop. However, once a bullying application is made, what options are available to workers to combat the continued bullying whilst awaiting a hearing?

This article explains:

  • what bullying is under the Act,
  • how a bullied worker can make a further application for an interim anti-bullying order, and
  • recent remarks by the Commission about when it is appropriate to seek such an order.

What is bullying?

Under s789FD of the Act, a worker is bullied at work if:

  • while the worker is at work, another individual, or a group of individuals, repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
  • the repeated behaviour creates a risk to health and safety.

Bullying can take many forms including inappropriate behaviour, exclusion from work-related events and even an unwarranted investigation or unreasonable disciplinary procedure.

That said, it is important to note that employers are able to undertake “reasonable management action carried out in a reasonable manner”. Whether certain action is reasonable will usually depend on an assessment of the facts of any given case.

What are interim orders?

Stop-bullying orders, and hence an interim order, will only be made if the employer is a “constitutionally-covered business” and the bully and the applicant will work together in the future. That is why it is so important to make sure the worker doesn’t get sacked between filing the application and having the matter heard.

When a worker feels as though they continue to be bullied while awaiting the hearing of their application, they can seek an interim order. Interim stop-bullying orders will protect the worker so that their main bullying application can be heard properly. For example, an interim order might be used to separate the alleged bully from the applicant until the substantive bullying application is heard.

Another example of where an interim order might be used is where an ongoing investigation, alleged to be bullying, might lead to dismissal of the worker before their bullying application is heard. An interim order could be used to halt the investigation until their bullying application is heard.

When will an interim order application be successful?

To successfully seek an interim order, an applicant must establish that:

  1. there is a serious issue to be tried. This means that the applicant has to establish that, if the evidence remains as it is, there is a probability they will be successful at trial[2], and
  2. the balance of convenience weighs in favour of granting the order. This means that the worker will suffer more if the order is refused, than the employer if the order is granted.[3]

In the case of Lynette Bayly v Bendigo TAFE and others,[4] Ms Bayly (represented by Maurice Blackburn Lawyers) applied for interim orders to stop a bullying misconduct investigation and potentially her dismissal. The Commission made the interim order finding that:

  1. Ms Bayly established a prima facie case that the investigation amounted to bullying conduct;[5] and
  2. the employer knew that their continued conduct was damaging to her mental health, and her dismissal, which may have rendered her application pointless, was a “very real prospect”.[6]

When will an interim order application be unsuccessful?

Although Bayly was successful, two applications for interim orders in similar circumstances were recently denied by the Commission.[7]

In Tanka Jang Karki,[8] the applicant claimed he was being bullied because his employer commenced a misconduct investigation, threatening his dismissal. The Commission held that the disciplinary proceedings and threat of dismissal against him were justified because the misconduct had actually been engaged in.

In dismissing his application for interim orders, Deputy President Sams stated that the use of the anti-bullying jurisdiction to avoid disciplinary outcomes was “perilously close to an abuse of process”.[9]

In the matter of Kim Hodgkins,[10] interim orders were denied because Ms Hodgkins’ employer had not yet threatened dismissal.[11] That is, there was minimal risk that the main application would have been rendered pointless without the order.

Takeaway lessons

If you or your members have filed a bullying application in the Commission and are considering applying for interim orders, consider the following:

  1. Is there a serious issue to be tried? The Commission may not grant interim orders if the alleged bullying behaviour relates to justified disciplinary procedures; and
  2. Does the balance of convenience weigh in your favour? The Commission may not grant interim orders unless there is a real threat that your client will suffer prejudice, like dismissal.

For more information on whether you or your members are eligible to make a bullying application, visit the Commission’s online “anti-bullying benchbook” or seek legal advice.

[1] Productivity Commission, 2012.

[2] Kim Hodgkins [2019] FWC 3344 at [31].

[3] Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19]

[4] [2017] FWC 1886.

[5] Ibid at [43].

[6] Ibid at [44]-[48].

[7] Kim Hodgkins [2019] FWC 3344 (15 May 2019); Tanka Jang Karki [2019] FWC 3147 (27 May 2019); Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274 (19 June 2019).

[8] [2019] FWC 3147.

[9] Ibid at [66].

[10] [2019] FWC 3344

[11] Ibid at [31].

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