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Background

An interim order has been issued by the Fair Work Commission to restrain an employer, Bendigo Kangan Institute t/a Bendigo TAFE, from taking disciplinary action against an executive director. The executive director had filed an anti-bullying application against her employer prior to the allegations of misconducted directed at her.

The interim order is the first of its kind in the Fair Work Commission anti-bullying jurisdiction.

Facts

In essence:

• the executive director filed a bullying complaint against other directors in March this year with the Fair Work Commission
• Bendigo TAFE alleged misconduct on behalf of the executive director. The employer used a third party to conduct an investigation into her alleged misconduct under the supervision of the board with the exception of the directors named in her bullying complaint
• Bendigo TAFE stood her down on full pay on March 28 and required her to attend a management meeting on April 3 for her to respond to the investigation’s draft findings

• the executive director was diagnosed with depressive illness and was on sick leave since March 30
• she was certified medically unfit until April 23 and did not attend the meeting on April 3
• the executive director sought an interim order from the Fair Work Commission to restrain Bendigo TAFE from potentially dismissing her because her anti-bullying application would fail otherwise
• Bendigo TAFE argued the prospective injunction restraining disciplinary action against the executive director was beyond the Fair Work Commission’s powers

The Fair Work Commission Decision

Commissioner Hampton found:

• that if Bendigo TAFE was to dismiss the executive director, it would “significantly compromise, and potentially deny, her capacity” to have her anti-bullying application heard
• there was a need to balance a “range of other competing considerations” such as:
o the prejudice to Bendigo TAFE from the interim order
o the obligation created by the interim order “to continue [the executive director’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”
o the executive director’s medical condition
o Bendigo TAFE’s decision to stand her down on full pay
• the s 789FC anti-bullying application was therefore a “matter of priority” and should be dealt with right away
• the balance of convenience in favour of issuing the interim order which prevents Bendigo TAFE from finalising its investigation of the executive director and taking any disciplinary action including dismissal

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

• when allegations of misconduct are alleged, ensure that investigations are conducted in an effective and timely manner
• review and update if necessary policies and procedures dealing with bullying in the work place and grievance procedures
• seek advice on how to appropriately manage employee absences in circumstances where disciplinary action is being undertaken
• ensure detailed notes are taken of meetings with employees where disciplinary action is or may be taken

More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.