Fair Work Commission interim orders

Section 589 of the Fair Work Act empowers the Fair Work Commission to make interim decisions on its own in initiative or upon application. The power to do so is not commonly used, but when used it is generally to make orders to preserve the status quo pending a formal hearing. The power is also available to bullying claims lodged with the Commission in its anti-bullying jurisdiction and the following extract from a recent decision of the Commission contains an analysis of the principles involved in the exercise of the discretion to issue interim orders.

“Conclusion

There are two prerequisites to the making of final orders in bullying applications, which are both stated at s.789FF(b) of the Act. The Commission must first find that the applicant has been bullied at work by an individual or a group of individuals; and secondly, that there is a risk that the applicant will continue to be bullied at work by the individual or group concerned.

The power of the Commission to grant an order is limited to preventing an employee from being bullied at work. In this application the applicant names an individual as the alleged bully. Where there is no risk that the applicant will continue to be bullied at work by the individual an order to prevent the risk of future bullying cannot issue.

The principles to be applied to an interim decision

I intend to adopt the common law principles that apply to interim relief applications. Collier J in United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd  8referred to the application of three tests:

  1. There must be a serious question to be tried as to the applicant’s entitlement to relief; and
  2. The applicant is likely to suffer injury for which damages will not be an adequate remedy; and
  3. The balance of convenience favours the granting of an interlocutory order.

Bromberg J in Quinn v Overland 9 referred to two main inquiries incorporating the test of whether damages would be an adequate remedy into the wider test of balance of convenience stating:

“[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 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].”

Serious question to be tried

As Gummow and Hayne JJ explained in Australian Broadcasting Corporation v O’Neill, 10 referred to by Bromberg J in Quinn v Overland above, in order for an applicant for interlocutory relief to demonstrate that there is a “serious question to be tried”:

1.1 It is sufficient that the applicant show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: at [65].

1.2 The applicant need not demonstrate more than a 50% chance of ultimate success: at [68].

1.3 In that light the issue may be understood as whether the applicant has made out a prima facie case for relief: at [65], [70].

1.4 Whether the applicant shows a sufficient likelihood of success depends on the:

1.4.1 nature of the rights asserted; and

1.4.2 practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application: at [72].

In the Full Court decision in Samsung Electronics Co Limited v Apple Inc, 11 the court said at [67]:

“As Sundberg J observed in Sigma Pharmaceuticals (Aust) Pty Ltd v Wyeth (2009) 81 IPR 339; [2009] FCA 595 at [15] (Sigma Pharmaceuticals), when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 (Tidy Tea) at [416] per Burchett J; Aktiebolaget Hassle v Biochemie Australia Pty Ltd (2003) 57 IPR 1; [2003] FCA 496 at [31] per Sackville J; Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325; [2005] FCA 1218 at [18] per Stone J; and Castlemaine Tooheys at CLR 154; ALR 558 per Mason ACJ.”

A summary of the applicant’s bullying allegations are set out above and while they are denied by the employer, on their face they raise allegations that Part 6-4B Workers Bullied at Work of the Act is designed to remedy. As such I am prepared to accept on their face that the allegations raise a serious question to be tried. However, as put by the employer there is a limited likelihood of success to justify the order being granted pending finalisation of the application. This is because Ms Ormiston has been transferred and would no longer be the applicant’s supervisor should the applicant return to work.

The applicant has questioned whether the transfer is a temporary arrangement. The employer’s submissions indicated that the applicant’s line of supervision no longer includes Ms Ormiston; I do not take it that it is a temporary arrangement.

The legislation requires the possibility of a risk of future bullying at work by the named individual Ms Ormiston. On the submissions of the employer this risk is now removed even if the applicant returns to work at some time in the future.

Considering what has been put before the Commission in regard to the new role now performed by Ms Ormiston, even if the allegations of bullying said to have occurred prior to November 2017 are made out, there no longer appears to be a risk that the applicant will continue to be bullied by Ms Ormiston. On this basis there does not exist a sufficient likelihood of success in the applicant’s substantive application for an interim order to issue.

The balance of convenience and damage

The applicant has been advised by the employer that on the basis of medical evidence it has been recommended that her employment be terminated in accordance with their Work Fitness Procedure. As a result, the applicant has been asked by the employer to provide a response by 5 April 2019 as to any reasonable alternatives to termination on medical advice.

Noting that the employer is relying upon a medical opinion dated 11 September 2018 and that the applicant in her email response to the Commission of 26 March 2019 states her health has improved in the last 6 months; the outcome of the employer’s consideration of the applicant’s response is unknown. Should the termination of the applicant’s employment proceed, other legal remedies may exist including ‘unfair dismissal’ for the applicant to pursue, as the applicant and the respondent both acknowledge. As the employer states in their submissions of 25 March 2019, it cannot be assumed that the applicant’s employment will be terminated.

The employer submits that it will be substantially prejudiced if the interim order was granted. This is because it would prevent the employer from considering on medical advice whether or not the applicant should remain employed where she has not attended for work since November 2017. Further, if the employer is successful at any future bullying hearing it would not be able to recover any damages it may incur as a result of any interim order issuing.

Consideration of the applicant’s prima facie case and the balance of convenience must be assessed having regard to the nature of the bullying application. The purpose of the interim order application by Ms Leeman is to preserve the right to advance her bullying application by preventing her termination of employment.

The issuing of an interim order needs to be considered against the lawful rights of an employer becoming subservient to a bullying application where such applications are made in an attempt to prevent, circumvent or frustrate an employer’s rights. For example, an employer may wish to conduct and complete a performance review, take disciplinary action or terminate an employee’s employment contract.

There will of course be cases where the nature of a bullying allegation relates directly to other action proposed to be taken by an employer and the veracity of the bullying allegation and any future risk of bullying should be determined prior to other employer action being taken.

In this case I am not satisfied that the balance of convenience favours an order being issued in the terms sought by the applicant. The applicant’s response to the employer’s correspondence of 15 March 2019 may elicit further enquiries by the employer being undertaken or reveal that Ms Leeman is medically fit to return to work due to the circumstances that initiated the internal work complaint and her subsequent complaint in the Commission having changed since November 2017.

For the above reasons the application is dismissed.”

Application for an order to stop bullying – Leeman (2019)  FWC 2228 delivered 3 April 2019 per Bull DP