1
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Lynette Bayly
(AB2017/134)
COMMISSIONER HAMPTON ADELAIDE, 5 APRIL 2017
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.
[2017] FWC 1886
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2017] FWC 1886
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[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:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be
dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.”
[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:
1. Ms Bayly is employed by BKI.
2. On 10 March 2017 the applicant filed the stop bullying application.
3. In that application, Ms Bayly alleges bullying at work against the respondents,
including that the investigation commenced on or about 31 January 2017 is
itself behavior that constitutes bullying at work.
4. BKI has proceeded with its investigation and has informed Ms Bayly that it has
made draft findings.
5. Ms Bayly has been certified as unfit for work between 30 March 2017 and
23 April 2017. She has been diagnosed with a depressive illness. By reason
thereof Ms Bayly is not attending for work or performing any of her duties.
[2017] FWC 1886
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6. BKI wrote to the applicant on 28 March 2017 she was stood down and directed
that she attend a meeting on 3 April 2017 at 10am and in that letter indicated
that the purpose of that meeting was to hear and record Ms Bayly’s responses
to the draft findings, then conclude the investigation and determine the
employment outcomes of its investigation.
7. Ms Bayly believes that the outcome will be that her employment is terminated.
8. By letter dated 30 March 2017, Ms Bayly’s solicitors wrote to BKI and
informed it that she has been certified as unfit for work until 23 April 2017,
enclosed medical certification, noted that she had a depression and anxiety
condition and sought an undertaking that that it would not, until such time as
the applicant was fit for work, persist in requiring her to provide a response,
attend the meeting or impose any disciplinary sanction in respect of the
allegations.
9. By letter dated 31 March 2017, the solicitors indicated that BKI had declined to
provide any undertaking and intended to proceed as outlined in its letter of
28 March 2017.
10. Such further or other grounds that the Commission considers appropriate.
11. There is before the Commission an extant application made under Part 6-4B of
the Fair Work Act 2009. Unless the relief sought is granted:
(a) the respondents may terminate Ms Bayly’s employment and thereby
deny the Commission jurisdiction in respect of the applicant’s current
Part 6-4B application; and
(b) the respondents will commit a further act of unreasonable behavior in
relation to the investigation that creates a risk to the applicant’s health
and safety.4
[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 position5 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.
[2017] FWC 1886
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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:
Although the investigation does feature in Ms Bayly’s application, it is not the core
of that matter. The investigation has now concluded, other than any contribution
from Ms Bayly, which has not been forthcoming to date despite various
opportunities to do so. It now ought to be open to BKI to act on the outcome of the
investigation.
The investigation could not have been carried out in a more reasonable manner. It
was conducted by an independent third party and overseen by the Board and not by
any of the persons named and was carried out in accordance with the procedures of
the third party who was engaged.
The letter of 28 March 2017 in which Ms Bayly was asked to respond to the
contents of the draft investigation report was the sixth request for her response.
An interim order ought to be within the bounds of the nature of an order that the
FWC could make in such matter under s.789FF of the Act in that the order has to
go toward preventing a worker from being bullied at work.
The Commission is being asked to prospectively injunct BKI from possibly
dismissing Ms Bayly. That is, to essentially use the anti-bullying jurisdiction to
step in and prevent a possible adverse action, without consideration as to whether
that dismissal is justified. The orders sought go beyond what would ordinarily be
available in relation to an anti-bullying application and should not be made.
The preliminary findings made through the investigation, which indicated that there
was substance to the allegations against Ms Bayly, should also be taken into
account.
Should Ms Bayly be dismissed, although this could be an end to her s.789FC
application, other alternative remedies would or might be available to her.
[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.
[2017] FWC 1886
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[19] Section 789FC of the FW Act provides as follows:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may
apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work
Health and Safety Act 2011, but does not include a member of the Defence
Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a
worker is an individual who performs work in any capacity, including as
an employee, a contractor, a subcontractor, an outworker, an apprentice,
a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or
refunded.”
[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:
“789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of
which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action
carried out in a reasonable manner.
(3) If a person conducts a business or undertaking (within the meaning of the Work
Health and Safety Act 2011) and either:
(a) the person is:
[2017] FWC 1886
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(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or
Commonwealth place;
then the business or undertaking is a constitutionally-covered business.”
[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:
“789FF FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of
individuals; and
(ii) there is a risk that the worker will continue to be bullied at work
by the individual or group;
then the FWC may make any order it considers appropriate (other than an order
requiring payment of a pecuniary amount) to prevent the worker from being
bullied at work by the individual or group.
(2) In considering the terms of an order, the FWC must take into account:
(a) if the FWC is aware of any final or interim outcomes arising out of an
investigation into the matter that is being, or has been, undertaken by
another person or body—those outcomes; and
(b) if the FWC is aware of any procedure available to the worker to resolve
grievances or disputes—that procedure; and
(c) if the FWC is aware of any final or interim outcomes arising out of any
procedure available to the worker to resolve grievances or disputes—
those outcomes; and
(d) any matters that the FWC considers relevant.”
[2017] FWC 1886
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[24] The Fair Work Amendment Bill 2013 Revised Explanatory Memorandum explained
the provisions as follows:
“New section 789FF – FWC may make orders to stop bullying
119. New subsection 789FF(1) empowers the FWC to make any order it considers
appropriate to prevent a worker from being bullied at work by an individual or group
of individuals. Before an order can be made, a worker must have made an application
to the FWC under new section 789FC and the FWC must be satisfied that the worker
has been bullied at work by an individual or group of individuals. There must also be a
risk that the worker will continue to be bullied at work by the individual or group.
Orders will not necessarily be limited or apply only to the employer of the worker who
is bullied, but could also apply to others, such as co-workers and visitors to the
workplace. Orders could be based on behaviour such as threats made outside the
workplace, if the threats relate to work.
120. The power of the FWC 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. The FWC cannot order reinstatement or the
payment of compensation or a pecuniary amount.
121. Examples of the orders that the FWC may make include an order requiring:
the individual or group of individuals to stop the specified behaviour;
regular monitoring of behaviours by an employer;
compliance with an employer’s workplace bullying policy;
the provision of information and additional support and training to workers;
review of the employer’s workplace bullying policy.
122. New subsection 789FF(2) provides that, when considering the terms of the
order, the FWC can take into account any factors that it considers relevant, but must
have regard to the following (to the extent that the FWC is aware):
any final or interim outcomes of an investigation into the matter that is being
undertaken by another person or body;
any procedures available to the worker to resolve grievances or disputes;
any final or interim outcomes arising from any procedures available to the
worker for resolving grievances or disputes.
123. These factors may be used by the FWC to frame the order in a way that has
regard to compliance action being taken by the employer or a health and safety
regulator or another body, and to ensure consistency with those actions.”
[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.
[2017] FWC 1886
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[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 Ltd,8 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:
“[5] The AMWU submitted that in deciding whether to issue an interim order, the
Commission must determine if there is a serious issue to be tried and balance of
convenience.
[6] These principles were discussed by Bromberg J in Quinn v Overland where
His Honour said:
“[45] In determining an application for interlocutory relief, the Court
addresses two main inquiries. First, whether the applicant has made out a prima
facie case in the sense that if the evidence remains as it is, there is a probability
that at the trial of the action the applicant will be held entitled to relief. Second,
whether the inconvenience or injury which the applicant would be likely to
[2017] FWC 1886
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suffer if an injunction were refused outweighs or is outweighed by the injury
which the respondent would suffer if an injunction were granted: Australian
Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].
[46] The requirement of a “prima facie case” does not mean that the
applicant must show that it is more probable than not that the applicant will
succeed at trial. It is sufficient that the applicant show a sufficient likelihood of
success to justify in the circumstances the preservation of the status quo
pending the trial. How strong the probability needs to be depends upon the
nature of the rights the applicant asserts and the practical consequences likely
to flow from the order the applicant seeks. In that context there is no objection
to the use of the phrase “serious question” to convey the strength of the
probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne
JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”
[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make an
interim decision. S.598(4) of the Act provides that a decision that is described as an
order must be made by order. An example is given in a note and it refers to a decision
that is described as a bargaining order.”
[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 others.9 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
[2017] FWC 1886
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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:
A letter from BKI to Ms Bayly dated 28 March 2017 referring to the investigation,
draft findings and earlier attempts to seek her input on such, standing her down on
full pay and requiring that Ms Bayly attend a meeting on Monday 3 April 2017 to
“hear and record your responses to the draft findings” and in effect, to conclude the
investigation and make a decision in that context;
The Draft Investigation Report provided to Ms Bayly for her comments;
Correspondence provided by Ms Bayly’s lawyers dated 30 March 2017 seeking an
undertaking from BKI not to proceed with the proposed disciplinary process; and
A copy of the medical certificate issued in relation to Ms Bayly on 30 March 2017
and also supplied to BKI on that date.
[40] What is evident from the material that is before the Commission is as follows:
Although the s.789FC application raises various allegations, the present
investigation and related disciplinary process is central to the application. The
application claims, amongst other matters, that the allegations against Ms Bayly
have been raised retrospectively in response to her concerns of bullying conduct in
the workplace and that these allegations and the subsequent actions are
unreasonable bullying conduct;
Various allegations about Ms Bayly have been made and investigated by BKI and
preliminary adverse findings have been reached by the investigator. The
Commission is not yet in a position to objectively determine whether those findings
are reasonably open and whether the process adopted was unreasonable or not;
Ms Bayly was given various opportunities to provide her views on the preliminary
findings and the letter of 28 March 2017 and the planned meeting represented a
final opportunity to do so. I note that although it is a reasonable inference that
Ms Bayly’s current medical condition is a present factor in that regard, it is not
presently clear whether this has had a broader role to play;
Ms Bayly has raised various concerns about the making of the allegations against
her, the process adopted by BKI and related alleged conduct as part of what is
claimed to be a pattern of unreasonable conduct towards her. The Commission is
not yet in a position to make findings about the validity of those concerns;
[2017] FWC 1886
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Ms Bayly is unfit for work at least until 23 April 2017 and has sought that BKI not
finalise the investigation in those circumstances; and
BKI intend, subject only to the making of the interim orders, to finalise its
investigation and to make a decision on disciplinary action against Ms Bayly, with
dismissal a likely option.
[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
[2017] FWC 1886
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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.
[2017] FWC 1886
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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.
COMMISSIONER
Appearances:
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:
Adelaide
Video-link to Melbourne
2017
3 April.
Printed by authority of the Commonwealth Government Printer
Price code A, PR591559
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.
THE FAIR WORK AUSTRALLA ISSION THE SEAL OF
[2017] FWC 1886
14
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.
