The interaction between disciplinary processes and allegations of bullying is a difficult issue for many organisations. We often hear of employees making complaints of bullying or discrimination whilst they are subject to an investigation, performance management or some other disciplinary process. The disciplinary or performance management process – provided it is properly instituted – generally continues, with the organisation exercising particular caution with respect to the risk of an adverse action application. But what happens if the employee applies for a Stop Bullying Order in the midst of these processes?
The Fair Work Commission’s recent decision Lynette Bayly (AB2017/134) provides an example of how the anti-bullying jurisdiction may be used by employees as a means to halt disciplinary processes, in what appears to be the first instance in which the Commission has granted interim orders as part of a stop bullying application.
In Lynette Bayly, the Executive Director of Bendigo Kangan Institute (the TAFE) made a stop bullying application to the Fair Work Commission on 10 March 2017, and named the TAFE and a number of senior executives as respondents. The bullying conduct alleged by the Executive Director included being the subject of allegations of misconduct and a subsequent formal investigation. The allegations of misconduct were made against the Executive Director only after she had made a complaint against one of the employees named in the application. Bendigo TAFE claimed that the making of the allegations and the investigation was reasonable management action and not bullying.
On 28 March 2017, the TAFE stood the Executive Director down on full pay and directed her to attend a meeting with management on 3 April 2017. At that meeting, the Executive Director was to provide a response to the draft findings of the investigation. The TAFE had given the Executive Director the opportunity to provide a response on five other occasions, but on each occasion, she had declined to do so. However, the Executive Director went on sick leave from 30 March 2017 after being diagnosed with a depressive illness and did not attend the meeting. She was certified as medically unfit for work until 23 April 2017.
The application was originally listed for conference on 3 April 2017. On 2 April, the Executive Director sought an interim order that would prevent the TAFE from continuing with the investigation and from taking any disciplinary action pending the determination of her stop bullying application. Her argument was that unless these interim orders were granted, there was a good chance that the TAFE would terminate her employment and the Commission would no longer have jurisdiction to hear her application. Stop bullying orders are only available where there is a risk that a worker will continue to be bullied at work. If the worker’s employment is terminated, that risk falls away.
In granting the interim orders, Commissioner Hampton placed particular emphasis on the fact that the Executive Director’s dismissal would significantly compromise, and potentially deny, her capacity to have her stop bullying application heard and determined. However, there was a cautionary note in the Commissioner’s decision. He acknowledged that interim orders in this jurisdiction should not be ‘issued lightly’ and agreed with the TAFE that ‘the Commission should be alert to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences’.
When the anti-bullying jurisdiction was first introduced, there was concern amongst employers and their advisors that we would see a flood of applications. The expected flood never came. Instead, according to the Commission’s annual reports, only 52 orders have been made from 705 applications. This is despite recent research that indicates Australia has comparatively high levels of workplace bullying. The paucity of successful applications begs the question: how effective is this new jurisdiction in curbing workplace bullying?
We wonder if the decision in Lynette Bayly might breathe some new life into the anti-bullying jurisdiction for employee advocates. Interim orders like the ones awarded in this case might be an attractive option in a jurisdiction that has so far not lived up to its promise.
We recommend our clients watch this space.
Melissa Scadden is Partner at Justitia. To view Melissa’s profile, click here.