The Anti-Bul­­ly­ing Injunc­tion Curtailed

The Fair Work Com­mis­sion Anti-Bul­ly­ing ​‘Injunc­tion’

In the 2017 anti-bul­ly­ing case, Lynette Bay­ly [2017] 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 [2020] 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.”

Impli­ca­tions

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.