[2017] FWC 1886


Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Lynette Bayly



Application for an FWC order to stop bullying – disciplinary process in place and about to be finalised – application for interim orders – whether appropriate to make interim orders – approach and statutory context considered – whether arguable case – balance of convenience – particular circumstances of the parties and the application justifies intervention on interim basis – interim order made – capacity to review or rescind order granted.

1. Introduction

[1] Ms Lynette Bayly has made an application for stop bullying orders under s.789FC of the Fair Work Act 2009 (the Act). The application alleges various elements of bullying conduct by some named senior executive staff at the Bendigo Kangan Institute T/A Bendigo TAFE, Kangan Institute (BKI) where Ms Bayly is employed as an Executive Director. BKI and the named individuals are collectively the respondents in this matter.

[2] The s.789FC application includes contentions that allegations of misconduct were made against Ms Bayly only after she had made a complaint against one of the executives named in the application. The substance of the application is that these allegations and the investigation that followed are acts of unreasonable behaviour, and that this conduct, along with other alleged behaviour by senior leaders of the employer, constitutes relevant workplace bullying.

[3] The respondents have opposed the s.789FC application and contend, amongst other matters, that the investigation (and any proposed disciplinary action) represented reasonable management actions taken in a reasonable manner. The respondents also deny that any conduct has taken place that would constitute relevant bullying behaviour within the meaning of the Act.

[4] The s.789FC application was originally listed for conference before a Member of the Commission on 3 April 2017.

[5] On 2 April 2017, Ms Bayly sought an interim order effectively preventing the respondents from continuing with the investigation and from taking any disciplinary action against her pending the determination of the s.789FC application. The interim order was sought under s.589(2) of the Act.

[6] The s.789FC application had been assigned to a Melbourne-based member of the Commission however given the urgency of the s.589 application, and the Member’s unavailability to deal with the matter at that time, it was heard by me as Panel Head of the Commission’s Anti-bullying jurisdiction via video link later on 3 April 2017.

[7] The Commission as originally constituted sought an undertaking from BKI to facilitate the hearing of the s.589 interim application. BKI confirmed in the subsequent hearing that it would refrain from any further disciplinary action in relation to Ms Bayly, pending the hearing and determination of the interim application on 3 April 2017. 1 In the context of an indication that an outcome would be determined by the Commission as presently constituted by no later than the close of business on 4 April 2017, BKI constructively confirmed that the undertaking would extend until that time.2

[8] On 4 April 2017, I issued an Interim Order. 3 In so doing, I indicated that reasons for that decision would be issued.

2. The application for an interim decision

[9] Section 589 of the Act provides as follows:

[10] The application for interim orders was made under s.589(2) of the Act and its grounds as taken from the originating document may be summarised as follows:

[11] Mr Harding, of counsel, who appeared with permission for Ms Bayly, contended that based upon relevant authority the Commission should consider whether there was a serious issue to be tried and if so, whether the balance of convenience favoured the granting of the interim order.

[12] In terms of the serious issue consideration, it was contended that if the applicant’s contentions about the investigation and related conduct were correct, Ms Bayly would be entitled to an order that BKI not pursue the investigation.

[13] In relation to the balance of convenience, it was contended that in the absence of interim orders, Ms Bayly would be dismissed and this would, given the prerequisites to make a stop bullying order under the Act, have the effect of preventing her s.789FC application being heard on its merits. Ms Bayly also contended that she would not have access to the unfair dismissal jurisdiction of the Commission given the nature of her position 5 and that other legal action in that regard was not presently contemplated.

[14] Ms Bayly also contended that she was presently on sick leave and that the employer, due to its stand down, was not requiring her to attend work at that juncture. Given this context and the broad powers contemplated in the remedy provisions of the Act (s.789FF), it was submitted that the Commission should exercise its discretion to make an interim order.

3. The respondents’ opposition to an interim order

[15] Mr Phillips, who appeared with permission for BKI, contended that an interim order should not be made in any form. In support of that proposition, it was further contended that:

[16] In terms of other relevant factors, BKI also contended that the Commission had no evidence of Ms Bayly’s actual medical condition and given that she was not presently in the workplace, there was no risk of future unreasonable conduct that might provide a basis for an anti-bullying order. It was further contended that this would also be the case if BKI proceeded to dismiss Ms Bayly.

4. The statutory context created by the anti-bullying provisions

[17] As will become clear, I consider that the statutory context for the application, and in particular, the anti-bullying jurisdiction created by the Act, is relevant to the consideration of the interim application.

[18] Without attempting to canvass the entire jurisdiction, the following is most apposite.

[19] Section 789FC of the FW Act provides as follows:

[20] There would not appear to be any contest that Ms Bayly is a worker or that there is a valid application before the Commission.

[21] The definition of bullying conduct is found at s.789FD of the Act in the following terms:

[22] The application of these concepts has been discussed in various decisions of the Commission and it is not necessary to extensively canvass this for present purposes. It is however appropriate to note that the terms of s.789FD are applied objectively and that s.789FD(2) of the Act is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. 6

[23] The power of the Commission to make orders is provided by s.789FF of the Act, which provides as follows:

[24] The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained the provisions as follows:

[25] Having regard to the provisions of the Act, there are two prerequisites to the making of substantive orders in matters of this kind. Firstly, a finding that the worker has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant worker will continue to be bullied at work by the individual or group concerned.

[26] Accordingly, where there is no risk that the applicant worker will continue to be bullied at work by the individual or group concerned, there is no prospect that the s.789FC application can succeed. This has been held in various decisions of the Commission to include circumstances where the applicant worker has been dismissed and is accordingly no longer at work where a risk in that capacity might eventuate.7 This is significant in this case given that if Ms Bayly is dismissed, then short of a subsequent order of a Court or Tribunal reinstating her (or a consent arrangement to that end), the s.789FC anti-bullying application could not be heard on its merits or lead to any orders being made.

[27] For completeness, I note that where such a future risk is found, the Commission may make an order preventing the worker from being further bullied by that individual or group. This means that any orders must be directed towards the prevention of relevant future unreasonable conduct and be informed by, but not necessarily limited to, the prior unreasonable conduct as found. However, any orders must deal with the actual future risk, based upon appropriate findings, and having regard to the considerations established by s.789FF(2) of the FW Act.

[28] Subject to the above, and the constraint that a substantive order cannot be made requiring payment of a pecuniary amount, the making of an order is a matter of discretion to be exercised judicially in the circumstances of each case.

[29] Accordingly, the power of the Commission to grant an order is limited to preventing the worker from being bullied at work, and the focus is on resolving the matter and enabling normal working relationships to resume in a mutually safe and productive manner.

5. The principles to be applied to an interim decision

[30] It has not been contended that the Commission is not empowered to make an interim order in connection with a s.789FC application. That is, it was not suggested by any party that s.589(2) was not available in an application of this nature or that s.789FF of the Act represented a bar to the making of an interim order. This is appropriate and I have proceeded on that basis.

[31] In Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd8 Gooley DP was dealing with an application for bargaining orders under s.228 of the Act and made an interim order. The Deputy President said:

[32] This approach is on all fours with that adopted by Gostencnik DP in Worker A, B, C, D and E v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others9 This matter involved the issuing of interim orders in a s.789FC anti-bullying application.

[33] I have adopted an approach consistent with the above decisions.

[34] It also appears to me that 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.

[35] In a matter such as this, I also consider that the nature of the remedy provisions of s.789FF of the Act 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.

[36] 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 necessary for such action. Of course, each application must be considered in its own right and circumstances.

[37] As BKI contended, the Commission should be alert to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences. In this case, there are some particular circumstances that have justified the making of the interim order.

6. The present circumstances of this matter

[38] The application for interim orders has been made very early into the Commission’s processes for dealing with the s.789FC application. That is, prior to the point that the Commission is to conduct a conference or hearing to deal with the matter. As a result, whilst the Commission is aware of the contentions made in that application and the contrary detailed response provided by the respondents, it has not heard evidence or detailed submissions about the various issues and facts in dispute.

[39] I have however, by consent, received and considered the following:

[40] What is evident from the material that is before the Commission is as follows:

[41] It is also apparent from the material before the Commission that Ms Bayly had been stood down on full pay pending the conclusion of the investigation, and that she is a senior employee engaged in a large educational institution.

[42] BKI has not raised any preliminary jurisdictional issues concerning the Commission’s present capacity to deal with the s.789FC application. In that regard, I note that BKI has contended that its actions represented reasonable management action taken in a reasonable manner. However, as observed earlier, this arises from the definition of bullying conduct in s.789FD of the Act, and whilst clearly relevant, is part of the substantive issues to be determined. 10

7. Why an interim order was made in this matter

[43] I was satisfied that the s.789FC application has prima facie merit and there is a sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission. The allegations made by Ms Bayly, if ultimately supported by evidence, would be grounds to support a finding that there was repeated unreasonable conduct whilst she was at work within the meaning of s.789FD of the Act. Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.

[44] Further, if those findings were ultimately made, the continuation and finalisation of the investigation, particularly whilst Ms Bayly is unfit for work, could be found to be a continuation of relevant unreasonable behaviour.

[45] I would make it clear that I have not reached any concluded views about the above matters beyond the prima facie consideration required at this point. 11 I have also taken into account that there are several features of the investigation and the preliminary findings that would objectively suggest that the process was procedurally fair, at least in general terms. However, without conducting a conference or hearing to deal with the competing contentions about those issues, including the basis upon which the allegations themselves were made, and the facts more generally, no determination can be made.

[46] What is clear, is that as a result of the prerequisites of s.789FF of the Act, the dismissal of Ms Bayly would significantly compromise, and potentially deny, her capacity to have the s.789FC application heard and determined. Further, in the absence of interim orders, this was a very real prospect given all of the particular circumstances evident here and the stated intention of BKI. This is a significant factor directly relevant to the balance of convenience and the exercise of any discretion.

[47] However, there are a range of other competing considerations arising from the potential prejudice to BKI that I have also taken into account. These include that the Interim Order has the effect of creating an obligation upon BKI to continue Ms Bayly’s employment pending further developments, when in the normal course it would be open for it to dismiss her, subject to various notice and other obligations. This factor must, however, be weighed against the evident prejudice to Ms Bayly in the absence of the interim order and the practical circumstances of the matter. Those practical circumstances include that Ms Bayly is presently unable to attend for work and the Commission should be able to advance its consideration of the s.789FC application in the period covered by her present medical certificate. Further, BKI is a large employer and Ms Bayly has been stood down on full pay for a period leading up to this point.

[48] In the end result, I was satisfied that in the particular circumstances of this matter, the balance of convenience was firmly in favour of the Interim Order being made. It was also appropriate to exercise my discretion to make the Interim Order. Those circumstances, and some of the contrary considerations have, however, influenced the nature of the Interim Order and led to the granting of a broad right to seek the review or rescission of the Interim Order as discussed below.

8. The terms of the Interim Order

[49] In effect, the Interim Order will - until the determination of the s.789FC application or further order of the Commission - prevent the respondents from taking any further steps to finalise the investigation of Ms Bayly leading to the draft Investigation Report dated 24 March 2017, impose any disciplinary sanction on Ms Bayly in or in connection with that investigation, and/or terminating Ms Bayly’s employment.

[50] The scope of the Interim Order in relation to the investigation and any disciplinary sanction is limited to the events that have immediately led to the application for the interim action. This is appropriate given the nature of those orders and the status of the s.789FC application. The restraint on dismissal is however more broadly expressed given the circumstances of this matter and the implications for the substantive application.

[51] As outlined above, the Interim Order also granted a broad liberty to all parties to seek the variation or rescission of this Order upon application.

[52] The nature of the interim order and the capacity to seek its review arise from the fact that this order is being made at an early stage in the Commission’s dealing with the s.789FC application and recognition that circumstances might change that could alter the balance of convenience. This might include, for instance, if Ms Bayly’s medical status changed significantly. Further, once the Commission commences to more substantively engage with the s.789FC application, a more informed view about whether the disciplinary process properly formed the basis for that application or other changed circumstances could also lead to such a review. Equally, this may be appropriate if, for reasons beyond the control of BKI, the hearing and determination of the s.789FC application had to be significantly delayed.

[53] On the other hand, should additional investigations of Ms Bayly give rise to the same issues that have led to this present application, the scope of the Interim Order may also need to be reviewed.

9. Future proceedings

[54] The substantive s.789FC application will be re-assigned to a Melbourne-based Member to deal with. This will include, subject to the nature of the proceedings conducted by that Member, any applications to revise or rescind the Interim Order that might be made pending the determination of the matter.

[55] Given the import of the Interim Order made, it is appropriate that the s.789FC application is dealt with as a matter of priority.



M Harding, of counsel, with B Murphy of Maurice Blackburn Lawyers, with permission, for Ms Bayly.

J Phillips of EC Legal, with permission, with T Hobson for Bendigo Kangan Institute T/A Bendigo TAFE, Kangan Institute.

Hearing details:


Video-link to Melbourne


3 April.

 1   Transcript PN96.

 2   Transcript PN101.

 3   PR591575.

 4   Taken from the Form F1 application.

 5   s.382(b) due to Ms Bayly’s rate of annual earnings and the nature of her position.

 6   See GC [2015] FWC 6988 and Amie Mac v Bank of Queensland Limited and others [2015] FWC 744.

7 See the discussion of the earlier authorities in Bassanese [2015] FWC 3515 and the more recent decision of the Full Bench in Atkinson v Killarney Properties Pty Ltd [2015] FWCFB 6503.

 8   [2016] FWC 2260, (2016) 258 IR 12.

 9   [2016] FWC 5848.

 10   See GC [2015] FWC 6988 and Amie Mac v Bank of Queensland Limited and others [2015] FWC 744.

 11   See Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57.

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