Anti-bullying order stops misconduct investigation

The anti-bullying provisions in the Fair Work Act 2009 (Cth) have been operative since January 2014. These provisions allow a worker who reasonably believes that they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying. 

For these purposes, bullying is repeated unreasonable behaviour to a worker which creates a risk to health and safety.

The Commission has power to make any orders it considers appropriate to prevent a worker from being bullied at work by an individual or a group of individuals.  Those powers also permit the Commission to make interim orders in relation to a matter before it.

Case of Lynette Bayly [2017] FWC 1886

In this April 2017 decision, the Commission made an interim order stopping the employer, Bendigo TAFE, Kangan Institute (BKI), from taking any further steps to finalise an investigation in relation to Ms Bayly.  BKI was also ordered not to impose any disciplinary sanction on Ms Bayly, until her substantive application about alleged bullying was decided.

The substantive application was made by Ms Bayly on 31 January 2017.  In that application, Ms Bayly alleged various incidents of bullying conduct from senior executive staff at BKI where Ms Bayly worked as an Executive Director.  Ms Bayly claimed that allegations of misconduct were only made against her after she made a complaint against one of the senior executives.  She further claimed that the allegations of misconduct, and the investigation that followed, were acts of unreasonable behaviour.

BKI advised Ms Bayly that she was stood down and directed her to attend a meeting on 3 April 2017 to respond to the findings of the investigation BKI had carried out.  Ms Bayly was concerned that at this meeting, she would be terminated.  Hence, on 2 April 2017, Ms Bayly made the application for the interim order.  Ms Bayly relied, in part, on a medical certificate certifying her unfit for work between 30 March 2017 and 23 April 2017.

BKI opposed the making of the interim order and contended that the investigation represented reasonable management action taken in a reasonable manner.

However, the Commission found that the main application had a “significant likelihood of success.”  Due to this, the Commission affirmed that, even though BKI had concluded their investigation and made a decision, the “status quo” should be maintained until Ms Bayly’s substantive case could be heard and determined.  The Commission also pointed to the fact that continuing their investigation, particularly whilst Ms Bayly was unfit for work, could be found to be a continuation of the bullying behaviour.  The Commission concluded that if Ms Bayly was dismissed, this would significantly compromise, and potentially deny, her capacity to have her substantive application heard and determined.

Lavan Comment

This case demonstrates the extent of the Commission’s anti-bullying powers.  The fact that Ms Bayly was subject to a medical certificate was a significant factor in this case.  Employers, however, need to keep in perspective the anti-bullying provisions in the Act, even when implementing legitimate management direction or investigation.

If you would like to know more regarding the anti-bullying provisions, please contact Lavan's Employment and Safety team. 

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.