AREEA highlights how the power granted to the Fair Work Commission to make stop bullying orders has seemingly emboldened some mischievous employees to misuse this jurisdiction and stymy employers who are genuinely involved in the performance management or disciplinary process.

Background

In a recent case, D.K. [2018] FWC 6691 (31 October 2018), an employer had no choice but to halt disciplinary action which was in train when a stop bullying application was made.

The case highlights how an employee can launch a “counter offensive” despite the performance management process already commencing, by initiating a stop bullying application in accordance with s789FC of the Fair Work Act 2009,

Alternatively, the employee may take sudden personal leave alleging stress, but employers will generally avoid any liability if the employer delivers the reasonable administrative action.

In this case, a Professor lodged a stop bullying application and also sought an order to prevent his dismissal.

The Professor sought stop bullying orders under section 789FF of the Fair Work Act, against his immediate supervisor, faculty director and school manager, alleging they engaged in “mob” bullying conduct against him.

Commissioner Peter Hampton noted that the Commission had powers to make such orders.

The Fair Work Commission accepted a “formal written undertaking” from the employer in the anti-bullying case, agreeing to pause any disciplinary action against the worker until his stop-bullying application is resolved.

The Commission was hearing an application by the employee for interim orders to prevent his dismissal prior to the completion of his action.

The employer confirmed in an email to the Commission that it would pause any disciplinary action and give the worker adequate notice to seek further interim orders if it made any subsequent changes that would place his employment under threat.

The employer argued that interim orders weren’t justified because it had no plans to dismiss the Professor, instead only issuing a final warning.

The final warning was on hold pending the outcome of his application given the proposed undertakings by the employer.

Commissioner Hampton said he was satisfied this undertaking dealt with the employee’s immediate concerns in support of the interim order application.

He also sought an urgent interim order to prevent the employer from dismissing the Professor before the alleged bullying is properly investigated and addressed.

The Professor told Commissioner Hampton the employer denied any bullying conduct had occurred, and was seeking to use the restructuring taking place in his faculty to terminate his employment.

He said the nature of the worker’s bullying allegations were “significant and serious”, and if proven, should be heard and determined first whilst the disciplinary action was on hold.

The bullying application is set to be assigned to a local FWC Commissioner.

Implications for employers

It is advised that when employees allege bullying that those matters should be expeditiously investigated and a determination made after evaluating the evidence.

The outcome should then be advised to the complainant.

AREEA also strongly advises that any separate disciplinary or performance management process should not be delayed and a determination of an appropriate action be made on the basis of objective performance and behavioural evidence.

The processes should be dealt with separately and that should be made known to the employee.

For more information on themes covered in this article, contact AREEA’s Principal Consultant based in AREEA’s Hobart Office, Bill FitzGerald.