Anti-bullying order used to stop employer from finalising a misconduct investigation and taking disciplinary action

by Dentons
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What orders can the FWC make?

The FWC can make binding orders when it is satisfied that a worker has been bullied at work and there is a risk that the bullying will continue. The possible orders are far-reaching. To date, we have seen the FWC making orders that require employers to implement appropriate workplace behaviour policies and that regulate the conduct of the individuals concerned to prevent bullying from occurring.

An employee has now successfully applied to the FWC for interim anti bullying orders that prevent her employer from completing its misconduct investigation, taking disciplinary action against her and/or terminating her employment until the substantive anti-bullying matter is determined. The decision highlights the wide scope of the FWC’s powers in the anti-bullying sphere, as the interim order effectively requires the employer to continue to employ the worker pending further developments, when it would otherwise be open to the employer to dismiss her.

'Stop bullying' orders to block misconduct investigation and disciplinary action

The employee applied for anti-bullying orders on the basis that she had allegedly been bullied by senior executive staff, including through allegations of misconduct being made against her after she made a complaint about one of those executives. The employee alleged that the misconduct investigation itself was unreasonable and formed part of the bullying conduct.

The employer denied that any bullying had occurred. It contended that the investigation (and any proposed disciplinary action) constituted reasonable management action, which it said was undertaken in a reasonable manner. The employer argued that the anti-bullying jurisdiction was being used to step in and prevent a possible adverse action, without first considering whether that adverse action was justified. If the employee was dismissed, the employer said that the employee could pursue alternative remedies that would be available to her.

The FWC found that the dismissal of the employee would significantly compromise, and potentially deny, the employee’s capacity to have the anti-bullying application heard and determined, as there would no longer be any risk of bullying. In circumstances where the employee’s anti-bullying application appeared to have merit and there was a sufficient likelihood of success to justify preserving the status quo, the FWC decided that the balance of convenience favoured the granting of the interim order.  Despite this, the FWC observed that interim orders of the kind granted in this case will not be issued lightly.

Take away messages for employers

  • The recent issuing of interim anti-bullying orders illustrates how far-reaching the FWC's powers are, and the importance of having preventative measures in place to address workplace bullying.
  • The FWC's decision to grant an interim injunction is likely to result in further applications for interim injunctions being made by workers, including highly paid, senior employees who are ineligible to make an unfair dismissal claim.
  • There is a risk workers will use the anti-bullying jurisdiction strategically to delay or circumvent disciplinary action being taken by employers.
  • There is significant incentive for employers to take a proactive approach to eradicate or minimize bullying. The costs of establishing and implementing appropriate policies, procedures and training require some financial expenditure, but are likely to be significantly outweighed by any lititgation that may otherwise result.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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