In the recent decision of Wills v Grant, Marley & the Government of NSW & Anor  FWCFB 4514, an employee seeking to delay a disciplinary investigation has failed to convince the Full Bench of the Fair Work Commission that it does not need to be satisfied of her key allegation of bullying by her employer before issuing an interim injunction preventing the employer from investigating her alleged misconduct.
Common law interim injunctions test does not apply in the FWC bullying jurisdiction
A disgruntled Sydney Trains employee who was under investigation for alleged workplace misconduct asked the Fair Work Commission to issue an interim injunction preventing Sydney Trains from continuing its disciplinary investigation into 15 allegations against her spanning a period of approximately four years. The employee argued that the investigation into her alleged misconduct was being undertaken in a "grossly unfair manner" sufficient to constitute bullying. She sought an interim injunction from the Commission with the intention of preventing her employer from progressing the investigation.
At first instance, Deputy President Clancy denied her application, stating that he wouldn't issue an interim injunction without being satisfied the conduct met the relevant threshold of bullying under the Act – that is, the worker has been bullied at work and there is a risk the bullying will continue. He followed the reasoning of Deputy President Colman in a similar matter decided earlier this year, Mayson v Mylan Health Pty Ltd  FWC 1404. In Mayson, Deputy President Colman rejected the applicant’s submission that the Commission could effectively issue an interim anti-bullying order relying on its interim injunction powers under s 589(2), and in doing so would not need to consider whether the application met the requirements of the substantive bullying jurisdiction.
The employee sought appeal of Deputy President Clancy’s decision by the Full Bench of the Commission. Among other things, the employee argued Deputy President Clancy erred by finding he had no power to grant interlocutory relief in the manner sought and that he misapplied the principles setting out the Commission’s power to grant interim injunctions in this context.
The employee's case turned on the interpretation of section 589(2) of the Act, being that the Commission "may make an interim decision in relation to a matter before it".
The employee argued this provision allows the Commission to issue orders for an interim injunction without needing to be satisfied whether the conduct of her employer amounted to bullying. Instead, she said the common law threshold of whether there is a serious issue to be tried and whether the balance of convenience favours the relief sought, was the only relevant consideration for the purposes of seeking an interim injunction. For an employer, this interpretation would create risks, as it is a relatively low bar for an employee to show there might be unreasonable behaviour afoot, and the balance of convenience will generally favour an injunction being granted.
No balance of convenience factual findings required
In a positive decision for employers, while the Full Bench agreed it could make an interim order dealing with an anti-bullying application, it found that to do so it would first need to be "satisfied" of the elements which make up a bullying claim before it could turn its mind to the requirements for granting an interim injunction on that basis. The Full Bench reasoned that it could only order an injunction in relation to a "matter" before it, and the only 'matter' it was able to adjudicate is whether a worker is being bullied at work. The Full Bench said that this would require it first 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”.
The Full Bench highlighted some inconsistent outcomes from the employee’s approach to the interim injunction provisions. Namely, under the employee’s approach in the context of an unfair dismissal claim, the Full Bench would need to make an order for a person’s reinstatement on an interim basis before making any finding that the person had been unfairly dismissed. It said this approach does not appear to be contemplated by the legislature and in the eyes of the Full Bench, did not support the employee’s appeal.
Therefore, to make any order in relation to an anti-bullying application, it determined the Commission had to be satisfied on the issues in dispute (that is, whether the conduct amounts to bullying), and not apply a different standard of satisfaction or different considerations as was sought by the employee.
Green light for fair processes to continue
While the Full Bench’s decision should bring a level of comfort to employers, it is not all good news – ultimately, the decision supports the more general proposition that the Commission can still issue interim decisions in anti-bullying claims, including an interim injunction which would have the effect of pausing a disciplinary process. However, in order to do so, the Commission will need to be satisfied that bullying is occurring in line with the specific test set by the anti-bullying provisions.
The Full Bench noted that a Commission member could achieve this through an expedited hearing or on the basis of materials filed in a matter, prior to a final hearing.
For now, employers can be confident to continue engaging in fair and reasonable disciplinary processes with their employees. This decision supports employers being able to do this without the looming risk of an injunction application by an employee as a means to stymie a disciplinary process while a broader application – such as one for an anti-bullying order – is made.