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FWC restricts disciplining or dismissal of "bullied" executive

Submitted on Friday, 28th April 2017

The Fair Work Commission (FWC) has ordered Bendigo TAFE, Kangan Institute (BKI) to refrain from any conduct that could include disciplining or terminating a senior staff member pending the determination of a stop bullying order.

The Executive Director sought an interim order under s.589(2) on  2 April in an effort to prevent the respondent from continuing an investigation that could potentially lead to disciplinary action against her. Section 589 of the Fair Work Act 2009 (the Act), the FWC can make decisions as to how, when and where a matter, such as an investigation into misconduct, is to be dealt with.

The misconduct investigation, was initiated soon after she made a workplace complaint about another executive at BKI. As a result of the investigation, the employee was prompted to apply for a stop bullying order on 10 March. In her application, originally listed for conference on the 3rd of April, the BKI executive alleges various elements of bullying by senior executive staff and asserts misconduct claims were only made against her after she had made a complaint against one of the executives.

Shortly after initiating the investigation, BKI stood down the senior executive advising that she was to attend a meeting on the 3rd of April where they would hear and record the executive’s response to the draft findings. They would then conclude the investigation and determine appropriate outcomes. Within days the executive was unexpectedly diagnosed with a depressive illness and was certified as unfit for work between the 30th of March and the 23rd of April, leaving her unable to attend this meeting.

The interim order sought to prevent the respondent from continuing with the investigation and from taking any disciplinary action pending the determination of the stop bullying order application.

Under section 789FC of the Act, a worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order to stop the bullying.

The Commissioner sought an undertaking from BKI to facilitate the hearing of the interim application and BKI subsequently confirmed that it would refrain from any further disciplinary action in relation to the Executive.

Commissioner Hampton stated “What is clear, is that as a result of the prerequisites’ when making a stop bullying order’, ‘the dismissal of the executive would significantly compromise, and potentially deny, her capacity to have [her] application heard and determined”, asserting that her dismissal was a “very real prospect” in the absence of interim orders, given the circumstances evidenced here and the stated intention of BKI.

Consequently until the stop bullying application is determined, the Interim Order will act to prevent BKI from finalising the senior executive’s investigation, impose any disciplinary sanction or terminate employment as a direct result of the investigation.

This case highlights the complexities an organisation may face when dealing claims submitted to the Fair Work Commission. In our Responding to Fair Work Commission Claims experienced consultants will share some of their secrets and experience to help you understand the process, from initial response to appeals process. Lean more about the types of claims the Fair Work Commission deals with and how to put your best foot forward to defend your business and keep costs down.

Lynette Bayly [2017] FWC 1886 (5 April 2017)

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