Application for an FWC order to stop bullying – disciplinary process in place and about to be finalised – application for interim orders – whether appropriate to make interim orders – approach and statutory context considered – whether arguable case – balance of convenience – particular circumstances of the parties and the application justifies intervention on interim basis – interim order made – capacity to review or rescind order granted.

1. Introduction

[1] Ms Lynette Bayly has made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of bullying conduct by some named senior executive staff at the Bendigo Kangan Institute T/A Bendigo TAFE, Kangan Institute (BKI) where Ms Bayly is employed as an Executive Director. BKI and the named individuals are collectively the respondents in this matter.

[2] The s.789FC application includes contentions that allegations of misconduct were made against Ms Bayly only after she had made a complaint against one of the executives named in the application. The substance of the application is that these allegations and the investigation that followed are acts of unreasonable behaviour, and that this conduct, along with other alleged behaviour by senior leaders of the employer, constitutes relevant workplace bullying.

[3] The respondents have opposed the s.789FC application and contend, amongst other matters, that the investigation (and any proposed disciplinary action) represented reasonable management actions taken in a reasonable manner. The respondents also deny that any conduct has taken place that would constitute relevant bullying behaviour within the meaning of the Act.

[4] The s.789FC application was originally listed for conference before a Member of the Commission on 3 April 2017.

[5] On 2 April 2017, Ms Bayly sought an interim order effectively preventing the respondents from continuing with the investigation and from taking any disciplinary action against her pending the determination of the s.789FC application. The interim order was sought under s.589(2) of the Act.

[6] The s.789FC application had been assigned to a Melbourne-based member of the Commission however given the urgency of the s.589 application, and the Member’s unavailability to deal with the matter at that time, it was heard by me as Panel Head of the Commission’s Anti-bullying jurisdiction via video link later on 3 April 2017.

[7] The Commission as originally constituted sought an undertaking from BKI to facilitate the hearing of the s.589 interim application. BKI confirmed in the subsequent hearing that it would refrain from any further disciplinary action in relation to Ms Bayly, pending the hearing and determination of the interim application on 3 April 2017. 1 In the context of an indication that an outcome would be determined by the Commission as presently constituted by no later than the close of business on 4 April 2017, BKI constructively confirmed that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lynette Bayly [2017] FWC 1886
Case: [2017] FWC 1886
Decision Date: 5 APRIL 2017

CaseChat Overview and Summary

The case involves Lynette Bayly, who applied to the Fair Work Commission (FWC) for an order to stop bullying at her workplace. The dispute arose against her employer, who was in the process of finalising an internal disciplinary procedure. The application for interim orders was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether it was appropriate to grant interim orders given that the employer's disciplinary process was imminent. The court considered the statutory context of the Fair Work Act, the nature of the interim relief sought, and whether Bayly had established an arguable case. It also examined the balance of convenience and the specific circumstances of the parties.

The court found that Bayly had made out a case that was sufficiently arguable, and the balance of convenience favoured granting interim orders. The imminent conclusion of the employer's disciplinary process did not preclude the FWC from intervening on an interim basis. The court was mindful of the need to protect employees from workplace bullying and considered the particular circumstances, which included the urgency of the relief sought and the potential harm if the interim order was not granted. The court concluded that interim orders were appropriate to prevent any further bullying until the finalisation of the employer's process. The court also granted the employer the capacity to review or rescind the interim order once the disciplinary process was completed.

In light of the above considerations, the court made the interim orders sought by Bayly. The court's decision was based on the balance of convenience and the necessity to provide immediate protection against workplace bullying. The employer was also granted the capacity to apply to review or rescind the interim order once the internal disciplinary process was finalised. This balanced approach ensured that Bayly's rights were protected while allowing the employer to complete its internal procedures.

Orders