Interim orders in a “stop bullying” application

In a recent case, the FWC granted its first interim order issued in its anti-bullying jurisdiction, effectively issuing an injunction to stop an employer from proceeding with a workplace investigation. The orders prevented the employer from continuing a process which might result in termination of employment, and therefore defeat the purpose of the anti-bullying application (because when employment ends, so does the risk of continued bullying, which is an essential element of an anti-bullying claim).

The case is Lynette Bayly [2017] FWC 1886. Ms Bayly filed an application alleging various senior executives and co-workers were engaging in bullying behaviour, and seeking preventive orders. Ms Bayly accused her employer, the Bendigo Kangan Institute, of victimising her by making allegations of misconduct, and launching a formal investigation, after she had complained about another employee. The employer denied the allegations, and said that their actions were “reasonable management action”, and therefore not bullying.

Ms Bayly applied for an interim order to stop the investigation, and to prevent the Institute taking any disciplinary action against her, until her stop-bullying application had been determined. This would force the employer to halt its process, and to continue her employment, when in the normal course they would have been able to dismiss her.

As an interim measure, and without finally deciding who was in the right, the Commissioner decided that Ms Bayly’s application had a sufficient likelihood of success to justify an interim order preserving the status quo, until the case could be heard in full.

What does this decision mean for employers?

An interim order of this nature may be frustrating for an employer, since it freezes things in what is already a volatile or awkward workplace, so that management and other employees need to work around the situation, rather than taking immediate action to bring things to a head. Of course, if the employer is acting unfairly, that may be reasonable, but the delay will be frustrating where the employer is acting reasonably and in good faith. On an interim application, the FWC can only take a superficial view of the merits of the case.

As the interim order in this case demonstrates, dealing with a bullying complaint in a fair way is highly desirable to avoiding external intervention. Much depends on each set of circumstances, but if Ms Bayly’s complaints had been investigated, as well as any complaints against her, that would have looked much more even-handed than investigating her after she complained.

It is good policy to try to deal with issues in a way that stops them going to the FWC in the first place.

Coleman Greig Lawyers can help employers faced with bullying allegations by:

  • ensuring you have robust policies and procedures aimed at preventing and targeting bullying;
  • providing training to employees and management on those policies; and,
  • advising on any complaints made by employees, to ensure that the action taken is appropriate, and minimises the risk of anti-bullying proceedings, and interim orders.