When the FWC will stop your misconduct investigation

Fay Calderone


written on May 16, 2017

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:

  1. there is a sufficient likelihood of success; and
  2. 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.

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8 thoughts on “When the FWC will stop your misconduct investigation

  1. This article continue to reinforce to me why as HR Professionals we need to rethink how we approach issues such as managing excessive absenteeism, bullying, deviant behaviour, drug and alcohol abuse, harassment as well as poor performance and other related matters. I have argued for many years that a more appropriate approach is to focus on the management problem caused by the specific behaviour. In this case if the initial bullying claim had been considered in this light of “what management problem is occurring?”, in my experience a very different outcome would have occurred. In fact I have had Fair Work Commissioners commend me on this thinking and approach. I’d value feedback and comments from other practitioners.

    1. I wish you were in my organisation!

      I am an experienced manager with HR experience. But what happened to me is still happening!

      I raised concerns about the conduct of my director and his treatment of some staff: I did this with him directly as he would regularly seek my counsel on staffing matters. The result, I found myself being transferred to a business unit that required technical knowledge and skills to perform the project and no training was provided although requested and no documentation was available; well not to me anyway.

      In summary, although I raised many concerns, provided evidence I found myself subjected to a performance management process. The focus of the Performance Improvement Plan (PIP), which I renamed the Persecution Implementation Plan, was on the areas that I did not have skills in. I am an out of the box thinker, so I applied principles of similar work units technology and managed to produce the work. All this did was enraged my director.

      The next phase of the process was to re-write the PIP to focus on my ‘challenges’ as I have a recognised disability and prevent me from using the supports and processes I have developed for myself to achieve high standard outputs.

      I sort support from senior HR professionals but no one responded to me. I was advised that my director was highly valued by the executive so no investigation would take place and it was in my interests to resign. I did advised that this behaviour had happened to 8 people before me and they all resigned.

      I completed the process, produced a project that is usable and transferable. I was then informed, I was to proceed onto the formal performance management process. I presented evidence that would be accepted in any legal jurisdiction and this was ignored.

      End result, I took a voluntary redundancy.

  2. Valid point indeed Mark and I concur. Having said this, in my experience there are circumstances when the Management practices are sound and on the evidence, it’s the actual employee’s state of mind that is causing the real issue which naturally can be addressed in an appropriate manner.

    Great article Fay. Based on the circumstances, particularly the allegation regarding the investigation occurring as a result of making a complaint against a Senior Executive, an alternate avenue could possibly be pursuant to part 3-1 of the Fair Work Act (General Protections/Adverse Action) by alleging harm or injury or altering the employee’s position to their prejudice (the investigation) whilst they are still employed. I would appreciate your view in this regard Fay?

  3. “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.” They may be as ‘clear’ as they like but we all know that that statement is worthless. I will guarantee that we will see a jump in such actions now. It has been going on with workers comp for years and this just provides one more avenue for an errant employee to avoid the consequences.

  4. Trent. Yes I agree the actual employee’s state of mind can be the cause or real issue. I have conducted cases where this is the case and that experience still shows the strength of staying on track with the management problem while carefully managing the medical issues. It has certainly been successful in avoiding negative outcomes such as witnessed here.

    1. I concur absolutely Mark. Resolving matters internally in a fair and reasonable manner can also enhance the employer’s brand which from my experience a number of employer’s lack that broader thought process and consequently has an adverse impact on their brand. I have used this measure to influence cultural change. When the employer realises they are naive to think people do not talk outside of work which can impact their competitive strategy, the light bulb moment occurs!

  5. I should add, that I contacted the FWC and they informed me of the process and that it would take considerable time for them to make any orders. The advice was to resolve it internally Also, the agency I worked in does not have investigators although they are expected to comply with all federal government legislation, policy and procedures.

    I informed the Health & Welbeing consultant of this and was advised many other staff around me have complained about my director and the advice given is to leave and the executive will not do anything to support staff working for him.

    I did advise this person of my communication with the FWC and the response was, my best option was to find a job somewhere else, as this organisation knows how the FWC operates and they will wear me down before there is any intervention.

    I can substantiate all my statements and allegations, but the agency just ignored me.

  6. Credit to you for your professional resolve in this matter Hayley which you should feel proud of. The voluntary redundancy offered appears to be an acknowledgement by your former employer that you did make valid points and were in a strong position to contest the matter externally if necessary. Move on in a positive manner and now leave others to address what appears to be a substantial cultural issue. In my experience people in senior positions who continue to conduct themselves in an inappropriate manner and refuse to change will have consequences some point.

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