The Fair Work Commission’s recent decision to issue interim orders preventing an employer from continuing a misconduct investigation until a worker’s anti-bullying application is finalised, demonstrates the extent to which the commission is prepared to intervene in internal operations and processes.
The facts of the case are these: once the misconduct investigation commenced, the worker filed a stop bullying application, alleging it was initiated only after she had made a complaint against a senior executive. It was alleged the investigation itself was unreasonable behaviour and this (plus other behaviour) constituted bullying by some of the employer’s senior executives.
The employer asserted the investigation was reasonable management action carried out in an appropriate and objective way by an independent third party. They argued, by halting the investigation, the commission was allowing “the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences”.
At the time of the hearing, the worker had been notified that the investigation was in its final stages and her attendance was required for her to respond. Shortly after receiving notification, the worker advised the employer she was medically unfit for work and would not be attending.
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The FWC decision
Commissioner Peter Hampton recognised the employer’s concerns but highlighted that for an interim order to be successful, the commission needs to be satisfied that:
- there is a sufficient likelihood of success; and
- the harm caused by not granting the order outweighs the harm if the order is granted.
The commissioner was satisfied that both factors had been achieved in this case. Central to Hampton’s decision was the eligibility requirements to access the anti-bullying jurisdiction. To be able to apply for a stop bullying order under s789FC a worker must be at risk of being bullied at work. The commissioner was satisfied that if the investigation were allowed to continue, it was likely that the worker would have been dismissed and would no longer have the ability to have their application heard.
Further, the commission found that the investigation was central to the worker’s application and there was sufficient evidence that if the worker was successful, the continuation of the investigation would be considered unreasonable behaviour. Accordingly, the FWC formed the view it needed to preserve the status quo until the worker’s application was objectively determined.
What does it mean?
The FWC was clear that this decision should not open the floodgates for anti-bullying jurisdiction to be relied upon for workers trying to avoid disciplinary proceedings. It was an interim decision, restricted to its own particular set of facts.
Nevertheless, it clearly demonstrates the extent of the commission’s powers to intervene in an employer’s affairs to “stop the bullying” and its willingness to intervene in misconduct investigations and disciplinary processes to scrutinise their reasonableness or otherwise.