Full Bench of the Fair Work Commission clarifies the law on the relevant test to be satisfied when seeking an interim stop-bullying order
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.
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.
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.
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:
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 Smart Law Analyst, Phoebe Kenafake to the drafting of the publication.
2 Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another  FWCFB 4514.