The Anti-Bullying Injunction Curtailed
The Fair Work Commission Anti-Bullying ‘Injunction’
In the 2017 anti-bullying case, Lynette Bayly  FWC 1886 (Bayly), the Fair Work Commission (FWC) issued an interim order which prevented the employer from taking further steps to finalise an investigation into the conduct of the employee, impose any disciplinary sanction on the employee arising from the investigation or terminate the employment of the employee. It was, in effect, an anti-bullying ‘injunction’, putting a stop to the employer’s disciplinary process.
The interim order in the case was made pursuant to s. 589(2) of the Fair Work Act (Act), which is in the following simple terms:
“The FWC may make an interim decision in relation to a matter before it.”
In deciding the matter, Commissioner Hampton applied the test commonly used in interlocutory injunction matters, which involves consideration of two questions: First, is there a serious issue to be tried? Second, where does the balance of convenience lie?
In this regard, Commissioner Hampton observed:
“… the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.
In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [being the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised. However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”
On the basis of various factors including the medical condition of the employee, the retrospective nature of some of the misconduct allegations against her and the stated intention of the employer to proceed to a final disciplinary outcome (which could include termination of employment, rendering the bullying application nugatory), Commissioner Hampton decided to issue the interim order. He did, however, have some words of caution for those contemplating making applications to halt employer action:
“I would also observe that given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly. The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution. Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action. Of course, each application must be considered in its own right and circumstances.”
Notwithstanding this caveat, the anti-bullying injunction was a potentially quick and powerful remedy for employees looking to challenge disciplinary action being taken against them. Reflecting this, many applications were made with the FWC on behalf of aggrieved employees.
The Anti-Bullying ‘Injunction’ is curtailed by the FWC
In the recent Full Bench matter of Wills v Grant, Marley & the Government of NSW & Anor  FWCFB 4514 (Wills) (an appeal from a decision of Deputy President Clancy), the FWC took a different, more conservative approach.
The employee in the anti-bullying application (who was the Appellant in the appeal) was the subject of an investigation into various allegations of misconduct, which she submitted was being conducted in a “grossly unfair manner”. She brought an anti-bullying application before the FWC and sought an interim order in the following terms (which was in similar terms to the orders made in the Bayley decision):
“Until final determination or further order, an order pursuant to s.589(2) of the Fair Work Act 2009 (Cth) restraining the respondents from taking any further step in relation to its investigation of the applicant, impose any disciplinary sanction on the applicant and/or to terminate the applicant’s employment.”
At first instance, Deputy President Clancy did not make the interim order sought. In reaching that position, reliance was placed on the decision of Deputy President Colman in Mayson v Mylan Health Pty Ltd (Mayson). In that case, Deputy President Colman rejected a submission that s.589(2) of the Act is a discrete source of power enabling the Commission to make an interim anti-bullying order, such that the requirements of s.789FF need not be met. Those requirements in s. 789FF of the Act include, relevantly, the need for the FWC to find that the worker had been bullied at work and there is a risk the bullying will continue (Jurisdictional Requirements). In Mayson the decision of Bayly was noted but departed from, with Deputy President Colman observing that, in Bayly, the argument that the power of the FWC to make interim orders in an anti-bullying application was not enlivened until the Jurisdictional Tests were satisfied was not put (and therefore not considered).
The main question to be determined by the Full Bench (Justice Ross, Vice President Hatcher and Deputy President Gostencnik) in Wills, which reflected the divide between Bayly and Mayson, was set out as follows (at paragraph 30):
“During the course of oral argument, it was generally agreed that the Commission has power to make an interim order dealing with an application made under s.789FC; the issue in dispute concerns the basis on which such a power may be exercised. In essence the Appellant contends that an interim order may be issued pursuant to s.589(2), on the well established principles applied by a court granting interlocutory relief; that is, if there is a serious issue to be determined (or a prima facie case established) and the balance of convenience favours the grant of the relief sought. The Respondent takes a different view and contends that interim relief may only be granted in circumstances where the Commission is satisfied in respect of the matters identified in s.789FF, which was the position taken by the Deputy President in the decision subject to appeal.”
At paragraph 33 the Full Bench of the FWC set out its conclusion, specifically:
“…we reject the Appellant’s contention that an interim anti-bullying order may be issued based only on a prima facie case, or serious question to be determined, and the balance of convenience favouring the interim relief sought. In our view s.789FF allows the Commission to make an anti-bullying order, including an interim order, only if it is ‘satisfied’ that a worker has been bullied at work and that there is a risk that the bullying will continue.”
In reaching this conclusion, that the Jurisdictional Requirements need to be satisfied before an interim order can be made, the Full Bench indicated it “largely agreed” with the analysis of Deputy President Colman in Mayson, stating:
- “s.589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders because absent a particular ‘matter before it’, the Commission has no power to do anything at all under s.589(2). To the extent that it might be contended that s.589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s.595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision
- The ‘matter’ now before the Commission, for the purpose of s.589(2), is an application made under s.789FC. That application alleges that a worker has been bullied at work. It seeks an order under s.789FF to prevent a worker from being bullied by an individual or group. Any order made in relation to this application will be an order under s.789FF and the relevant requirements of that section must be satisfied.
- Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s.789FD(1). This would require the Commission to make a finding that the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.
- Section 789FF deals directly and in general terms with the Commission’s powers to make orders in relation to applications made under s.789FC. The Commission may make ‘any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work.’ Even if s.589(2) did not exist, the Commission could make an interim (temporary) order under s.789FF. But it cannot issue any order at all unless the relevant preconditions are met.
- A conclusion that an applicant for an anti-bullying order has established an arguable case or serious issue to be determined falls short of the state of satisfaction required by s.789FF. One cannot be satisfied on an arguable basis. One is either satisfied, or not satisfied, that a certain state of affairs exists.
- Section 589(2), a general provision which must relate to a ‘matter before the Commission’, would then have the effect of disengaging express requirements of the substantive provision and source of power – that the Commission be satisfied of the relevant matters. The applicant’s argument reads s.789FF as requiring the Commission’s satisfaction of these matters, unless an application is made for interim anti-bullying orders. This is not a sensible or coherent interpretation of the relevant provisions.
- The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.
- There is nothing to prevent the Commission from issuing interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s.789FF(1). For example, the Commission might be satisfied that a worker has been bullied at work and that there is a risk of continued bullying but require further submissions from the parties as to the final orders; an interim order might be made ‘in the interim’ on the material before the Commission at that time. But what the Commission cannot do is issue an order under s.789FF, without being satisfied that a worker has been subjected to bullying at work, and that there is a risk that the bullying will continue. To make an order in such circumstances would be beyond power
- The fact that an anti-bullying order under s.789FF can only be issued once the Commission reaches the requisite state of satisfaction about the relevant matters does not mean that the Commission cannot deal with anti-bullying matters quickly. The Commission may be able to conduct an expedited hearing, swiftly decide whether it is satisfied of the relevant matters in s.789FF and if so whether to issue an order. The Commission might decide to issue an interim (temporary) order, pending further deliberations on the appropriate framing of a final order, which might require further evidence. Or an expedited hearing might lead directly and quickly to the issuing of final orders.”
The decision in Wills is not the death knell for the anti-bullying injunction but it does put a dampener on its effectiveness. In practice, the need to satisfy the Jurisdictional Requirements means that an application by an employee to obtain an order stopping an employer’s investigation or disciplinary process will involve a more comprehensive final hearing (with all that entails in terms of evidence and submissions) than the interlocutory hearing previously required (as in Bayly). The process will likely take longer and be more expensive as a result.
Having said that, employers still need to be aware that investigations and disciplinary processes, if not conducted in a reasonable manner, can constitute bullying. While Wills makes it more difficult for an employee to obtain an anti-bullying injunction, it is by no means an insuperable barrier. It is also likely that in anti-bullying matters where a disciplinary outcome is imminent (particularly a possible termination of employment), representatives for employees will be asking the FWC to deal with applications on an expedited basis. Given a termination of employment will (almost invariably) extinguish the jurisdiction of the FWC to deal with an anti-bullying application, it is likely the FWC will be favourably disposed to requests for expedition.