Let’s deal with the bullying case before any talk of sackings

By Jeff Salton on April 26th, 2017


When workers make an application to the Fair Work Commission (FWC) for an anti-bullying order, they can also seek an interim order to prevent their employer dismissing them until the application is determined.

This is because if a worker isn’t at work, then the bullying can’t continue and the anti-bullying application cannot proceed.

For the FWC to make an interim order to prevent a dismissal, the worker must show it’s more probable than not that the anti-bullying application will succeed, and that the harm the worker would be likely to suffer if dismissal is not prevented outweighs the injury the worker will suffer by it being prevented.

An example can be found in Bayly v Bendigo Kangan Institute T/A Bendigo TAFE (2017), where a senior TAFE executive successfully obtained such an interim order. The worker alleged that:

  • she had made a complaint against one of the executives;
  • in response to her complaint, allegations of misconduct were made against her and investigated, with the threat to dismiss her; and
  • the disciplinary process amounted to workplace bullying.

The employer denied this, claiming these were reasonable management actions taken in a reasonable manner.

Interim order

The worker sought an interim order from the FWC preventing the employer from continuing with the investigation and from taking any disciplinary action against her pending the determination of her bullying application.

In the Bayly case, the FWC ruled that interim orders preventing dismissal would not be issued lightly. The direct intervention of the FWC at such an early stage of proceedings should be exercised with considerable caution. It was undesirable for the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action.

However, the FWC ruled that the anti-bullying application had sufficient merit and sufficient likelihood of success to justify the preservation of the status quo, pending further consideration and determination of the substantive matter.

The worker’s allegations, if ultimately supported by evidence, would be grounds to support a finding that there was repeated unreasonable conduct while she was at work. Those circumstances would also suggest that a relevant risk to health and safety arose.

If those findings were ultimately made, the continuation and finalisation of the investigation, particularly while the worker was unfit for work, could be found to be a continuation of relevant unreasonable behaviour.

Dismissal of the worker would significantly compromise, and potentially deny, her capacity to have the anti-bullying application heard and determined. In the absence of interim orders, dismissal was a very real prospect.

While obliging the employer to continue employment was harmful to the employer, it was less so because the worker was presently unable to attend for work and the employer was large and had stood the worker down on full pay for a period leading up to this point.

Therefore, the FWC granted an interim order that prevented the employer from, until the determination of the anti-bullying application or further FWC order, taking any further steps to finalise the investigation of the worker or impose any disciplinary sanction on her in or in connection with that investigation, and/or terminate employment.

At your workplace

As you can see, it’s paramount that you know where you stand as an employer when allegations of bullying occur, especially if you believe you have grounds to dismiss an employee. That’s why it’s vital that you are familiar with Managing Lawful Dismissal – an eBook that guides you through what you must consider before dismissing an employee and how you can protect yourself from legal risk, especially claims of bullying. It explains:

  • how your policies and procedures can help you to manage dismissal in your workplace;
  • what makes dismissal unlawful;
  • when and how you can lawfully dismiss an employee;
  • the alternatives to dismissal; and
  • your notice and termination pay requirements.

Before you decide to dismiss an employee, it’s critical you understand the rules. This comprehensive 53-page eBook will make sure you avoid any legal risk and that your dismissal process is lawful and fair.

Managing Lawful Dismissal is a small investment compared to the costs of getting your process wrong.

Get your copy today so that you’re prepared for the future.


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