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The Fair Work Commission (FWC) has recently issued an interim order which temporarily restrains an employer from finalising a misconduct investigation and imposing any disciplinary sanctions, including dismissal, on a senior employee until her application for ‘stop bullying’ orders has been determined.

A summary of the relevant background to the decision of Lynette Bayly [2017] FWC 1886 is as follows:

• the Applicant, Lynette Bayly, is an Executive Director employed by the Bendigo Kangan Institute (Bendigo TAFE);
• after Ms Bayly complained about another executive, misconduct allegations were raised against Ms Bayly and an external investigation commenced;
• Ms Bayly subsequently applied to the FWC for stop bullying orders against Bendigo TAFE and particular senior executives who she claimed had bullied her (including by raising the misconduct allegations and then investigating them);
• Bendigo TAFE and the other respondents opposed Ms Bayly’s application on the basis of the “reasonable management action” defence;
• Bendigo TAFE proceeded with the investigation and preliminary findings against Ms Bayly were made.  At this point, Ms Bayly was stood down and directed to respond to the findings at a meeting.  She believed that her employment would be terminated as a result;
• Ms Bayly’s lawyers subsequently informed Bendigo TAFE that, from 30 March 2017 until 23 April 2017, she would be unfit for work due to a depressive illness; and
• after Bendigo TAFE declined to postpone the disciplinary process, Ms Bayly sought interim orders from the FWC to stop it until her anti-bullying application had been determined.

In support of her application for interim orders, Ms Bayly contended that, if Bendigo TAFE decided to terminate her employment, she would be prevented from proceeding with her anti-bullying application (because the requisite risk that Ms Bayly will continue to be bullied by the respondents will no longer exist).  In addition, Ms Bayly would be unable to make an unfair dismissal claim because her remuneration exceeds the high income threshold and she is not covered by an enterprise agreement or modern award.

The FWC weighed these considerations against the competing considerations raised by Bendigo TAFE that it would be obligated to continue Ms Bayly’s employment, in circumstances where dismissal would normally be an option, and that the anti-bulling jurisdiction should not be used to circumvent reasonable disciplinary action.

The FWC acknowledged that, “the direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution” and that the interim orders sought by Ms Bayly would not be issued lightly.  However, having reviewed the material available, the FWC decided that the “balance of convenience” weighed in favour of Ms Bayly.  Although no concluded view could be formed, the FWC found that Ms Bayly’s anti-bullying application had sufficient prospects of success to justify preservation of the status quo.

Following this decision, it is likely that we will see an increased number of employees (and their representatives) using the FWC’s anti-bullying jurisdiction to seek interim orders in an attempt to hijack disciplinary and performance management processes which are looking bad for them.  Now, more than ever, it is imperative to ensure that you carry out the process in a reasonable manner that does not leave you exposed to a successful counter-attack.  Contact us for more information and/or help on setting up a defensible process.

To read the full content of the FWC decision, click here.