15 April, 2017
A recent decision in the anti-bullying jurisdiction of the Fair Work Commission has highlighted the (potentially complicated) interaction between bullying complaints and an employer's internal investigation process.
In Lynette Bayly [2017] FWC 1886, the Commission made an interim order staying an employer’s internal investigation of a complaint (that is, preventing the employer from finalising a draft investigation report), preventing any disciplinary action in connection with the investigation and preventing termination of the complainant’s employment – until such time as the matter is determined.
The substance of the bullying complaint in the Fair Work Commission was that allegations made against the complainant and an internal investigation of those allegations were acts of unreasonable behaviour and constituted bullying conduct (among other actions). The Respondent employer argued that the investigation (and any proposed disciplinary action that followed) was reasonable management action.
The Commission found that:
- the application has prima facie merit (that is, the complainant’s claims, if supported by evidence, would be grounds to support a finding that she was “bullied” in accordance with the Fair Work Act provisions);
- the continuation and finalisation of the investigation could be found to be a continuation of the relevant unreasonable behaviour; and
- the dismissal of the complainant would significantly compromise, and potentially deny, her capacity to have her Fair Work Commission application heard and determined.
This is one of the first times an interim order has been made in an anti-bullying matter before the Commission, with very few anti-bullying cases ever resulting in final orders. We await the further development of this matter with interest.
For further information, please contact:
Miles Bastick, Partner, Herbert Smith Freehills
miles.bastick@hsf.com
