Full Bench of the Fair Work Commission clarifies the law on the relevant test to be satisfied when seeking an interim stop-bullying order

In this update, we explain the importance of a recent decision by the Full Bench of the Fair Work Commission (Commission) relating to its stop-bullying jurisdiction.¹ 

Key points

• A worker contending that an internal workplace investigation into alleged misconduct was carried out in a grossly unfair manner has lost her appeal for an interim ‘stop-bullying’ order against her employer. 
• The decision concerns the basis upon which the Fair Work Commission is empowered to make interim orders in stop bullying applications under the Fair Work Act (2009) (Cth) (the Act).²
• The Full Bench found that the power to grant such orders requires the Commission to be satisfied, at the interim hearing, that the worker has been bullied at work and there is a risk the bullying will continue. 
• Conversely, it will no longer suffice for a worker to prove that there was a serious question to be tried at a final hearing (as to whether bullying has occurred) and the balance of convenience favoured granting an interim order.
• The decision resolves competing authorities and, arguably, has made it considerably more difficult for a worker to obtain an interim stop bullying order against their employer conducting a disciplinary management process affecting their interests. 

Background

Since the commencement of the stop-bullying jurisdiction on 1 January 2014, eligible workers who experience repeated, unreasonable behaviours at work, may apply to the Commission for an order to stop the bullying behaviour. 

Initial uptake in terms of use of the jurisdiction was underwhelming. While the number of stop-bullying application lodgements have since been relatively consistent and modest each year, there was a 4% increase in the Commission’s last published reporting period (2018/19) with a total of 751 applications lodged (the highest recorded annual results). 

Anecdotal evidence suggests that workers are increasingly taking advantage of this jurisdiction to seek interim orders in response to employer management action, for the purposes of derailing disciplinary processes and gaining more leverage in disputes with their employer.

Deputy President’s decision

The worker, Ms Virginia Wills, was employed as the Head of Investigations for Sydney Trains. 

In March 2020, the employer informed Ms Wills that she was under internal investigation. She was stood down from duties and required to hand in company property, including her mobile phone and laptop. 

Sydney Trains later issued Ms Wills with a show cause letter asking her to respond to 15 allegations of misconduct (spanning a four-year period) within only one week. A dispute ensued in relation to Ms Wills’ access to key documents and the laptop, which she argued were critical to her ability to properly respond to the allegations.

Ms Wills filed an application for a stop-bullying order on 14 July 2020, contending that the investigation was being conducted by her employer in a ‘grossly unfair manner’. Shortly afterwards, she filed an application for an interim order, relying upon section 589 of the Act, to restrain Sydney Trains from progressing with its investigation, sanctioning her, or terminating her employment until final determination of the matter. Section 589 provides for a general power of the Fair Work Commission to make ‘procedural and interim decisions’ in matters before it. 

Deputy President Clancy held that, before the Commission is empowered to make an order for interim relief in a stop-bullying application, the applicant must satisfy the criteria provided for in section 789FF of the Act. That is, the Commission must be satisfied that the worker is being bullied at work and the behaviour is likely to continue if an order is not made. 

The Deputy President declined to follow other earlier decisions relying upon section 589 of the Act, which only requires an applicant to demonstrate (among other things) a prima facie case, pending a final hearing and determination. 

Appeal decision

The Full Bench held that the Deputy President did not err, as a matter of law, in dismissing the worker’s application for interlocutory relief. 

The Full Bench also made some notable observations:

• it would be illogical for an interim order to be granted to prevent bullying at a workplace without first being satisfied the worker had actually been experiencing bullying behaviour; 
• written evidence such as correspondence between the parties may suffice to satisfy the Commission that such a state of affairs exists to justify making an interim order on a temporary basis; 
• an interim order made on that basis does not preclude a latter final determination to the contrary based on additional evidence;
• interim orders are less necessary in stop-bullying cases as the Commission has the capacity to conduct final hearings on an expedited basis, and an applicant should, where necessary, make this request initially when lodging their application. Had Ms Wills made such a request in her case, she would have been accommodated.

Thought leadership observations

Notwithstanding the Full Bench’s observations to the contrary, in our view the appeal decision will likely make it harder for workers to use the Commission’s stop bullying jurisdiction as a tool to interfere with management action taken by employers, whether legitimately or otherwise. 

It is no longer enough for a worker to prove, in an application for interim relief in the stop bullying jurisdiction, that they have a prima facie case to be finally determined and the balance of convenience favours the granting of their application. In proceedings for ‘stop-bullying’ relief, the relevant threshold for interim relief has effectively been raised in terms of satisfying the Commission that an interim order should be granted. 

There will be cases where urgent relief may be required, and it would be wrong for employers to assume that ‘quick and dirty’ disciplinary processes will escape urgent review by the Commission in the ‘stop-bullying’ jurisdiction if otherwise justified. In those cases, applicants properly advised can be expected, when making their primary application for relief, to request an expedited hearing. The Commission has always demonstrated a willingness and capacity to respond to circumstances of urgency, which are common to industrial matters.

For further information, please contact any member of our Workplace and Employment team.

¹ The author would like to acknowledge the contribution of Phoebe Kenafake to the drafting of the publication.

²Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another [2020] FWCFB 4514.