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[2020] FWC 1404
procedural. The application for an interim anti-bullying order was dismissed because the Deputy President was not satisfied of the matters in s 789FF and considered that he had no power to make the order...
The Fair Work Commission could not make the requested temporary order simply because Mayson had an arguable bullying case and the balance of convenience might favour her. The Act required the Commission to be satisfied that workplace bullying had occurred and that there was a risk it would continue. The Deputy President had not reached that satisfaction on the evidence then before him. He also considered that stopping a dismissal was not shown to prevent bullying at work, which is the purpose of an order under s 789FF. The interim application was dismissed, while the substantive application remained to be dealt with.
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Leanne Mayson had a substantive application before the Fair Work Commission under s 789FC of the Fair Work Act 2009 (Cth), seeking orders to prevent workplace bullying. She alleged that Mylan Health Pty Ltd and eight named employees had repeatedly behaved unreasonably towards her. The allegations included an expense-reimbursement issue in 2014 and, from about May 2017, exclusion from work events, ridicule, isolation and gossip ([1]-[2]). The respondents denied that bullying had occurred. Mylan said it had legitimate concerns about Mayson’s behaviour and had sought to address them through a performance improvement plan (PIP) ([5]).
Mayson’s account also concerned the employer’s performance process. In early March 2019, after the employer told her colleagues had complained about her conduct, it placed her on a PIP. She alleged she was not given details of the complaints, that the PIP was unreasonable, that her objections were ignored and that the employer did not follow its own performance policies ([2]). These were allegations in the substantive matter, not findings made in this interim decision.
Mayson was certified unfit to return to work on 11 March 2019 because of a depressive illness and had not returned by the date of the decision ([3]). The employer said it had required her to return to full-time duties in late 2019. On 3 March 2020, it sent her a show-cause letter asking why her employment should not be terminated ([5]). Mayson’s solicitors later asked the employer to consider adjustments recommended by her doctor, and Mayson sought an undertaking that the employer would not terminate her employment before her anti-bullying application was determined. The employer declined to give that undertaking ([6]).
The urgent application was narrow: Mayson sought to prevent the employer and four of the individuals from taking disciplinary action connected with the PIP, particularly termination, until her substantive anti-bullying application was finally determined ([7]). The Deputy President heard the interim application by telephone on 16 March 2020 ([8]).
The central question was not whether Mayson’s full bullying allegations were ultimately true. It was whether the Commission had power to make the requested interim order before it was satisfied of the statutory matters required for an anti-bullying order. The Deputy President dismissed the interim application and referred the substantive matter for reallocation to a Sydney-based member ([31]-[32]).
The decision turned on the relationship between two sections of the Act. Section 589(2) says the Commission “may make an interim decision in relation to a matter before it” ([12]). Mayson argued that this gave the Commission a separate basis to make an interim order using the familiar interlocutory approach of a prima facie case and balance of convenience ([9]-[10]). Section 789FF(1), however, authorises an anti-bullying order only if the Commission is satisfied that a worker has been bullied at work and that there is a risk the bullying will continue ([15]).
The Deputy President rejected the idea that s 589(2) operated as an independent source of power. He reasoned that the application before the Commission was a s 789FC application seeking relief under s 789FF. Any order made in relation to it would therefore need to comply with s 789FF ([17]-[18]). In his view, s 589(2) could not displace express requirements in the substantive provision. He also referred to s 595, which provides that the Commission may deal with a dispute only where the Act expressly authorises it to do so ([17]).
The distinction between an arguable claim and statutory satisfaction was decisive. Under s 789FD(1), the relevant inquiry included whether the conduct was repeated and unreasonable, directed towards a worker, and created a risk to health and safety ([19]). The Commission also had to consider whether there was a risk of future bullying, based on a rational foundation and historical context rather than speculation ([20]). The Deputy President said that a serious question or arguable case fell short of the required state of satisfaction: “One cannot be satisfied on an arguable basis” ([22]).
The Deputy President accepted that s 789FF could permit a temporary order. But, in his analysis, the Commission first had to reach the required satisfaction about past bullying and the risk of its continuation. A temporary order could then be made while the Commission considered the final form of relief. What could not be done was to issue an order under s 789FF without meeting the section’s preconditions ([21], [26]).
On the evidence available at this interim stage, the Deputy President was not satisfied that Mayson had been bullied or that she faced a risk of further bullying. The allegations were serious, but they remained disputed and required proper consideration of evidence at a hearing or determinative conference ([27]). This was not a final determination that no bullying had occurred. It was a finding about the Commission’s state of satisfaction on the material before it at that point.
There was a second, independent problem with the particular order sought. The Deputy President explained that s 789FF exists to prevent a worker from being bullied at work. Its purpose is not to ensure continuing employment, prevent a termination said to be unfair, or maintain the status quo until a substantive anti-bullying application is determined ([28]). He was not persuaded that preventing Mayson’s dismissal would prevent bullying at work. He noted that employment ending would appear to end the possibility of bullying “at work”, while recognising that termination might in some cases itself form a final step in a course of bullying ([29]). He was not persuaded that this was such a case on the materials before him.
The judgment describes earlier Commission decisions in which interim anti-bullying applications had succeeded using a serious-question-to-be-tried and balance-of-convenience approach. It refers to Lynette Bayley [2017] FWC 1886 and Worker A and others v AMWU and others [2016] FWC 5848 ([25]). Deputy President Colman observed that those matters appeared to have proceeded on a shared assumption about the Commission’s power under s 589(2), and that the jurisdictional question raised in Mayson’s case had not been argued ([25]).
The judgment’s contribution is therefore its express treatment of that jurisdictional question. It reads the general interim-decision provision alongside the specific power to make anti-bullying orders. On that reading, s 589(2) does not lower or remove the statutory threshold in s 789FF. An interim label does not itself create a power to make an order that the substantive provision would not authorise ([17]-[23], [26]).
The decision does not say that interim orders are never available in an anti-bullying matter. It says that any such order must follow the Commission reaching the required satisfaction under s 789FF. It gives as an example a situation where the Commission is satisfied that bullying occurred and that there is a risk of continuation, but needs further submissions before settling the final orders. A temporary order might be made during that further consideration ([26]).
The supplied judgment does not establish the later treatment of this decision by other courts or tribunals. It also does not describe a general change to the statutory text. Its discussion is confined to interpreting the provisions before the Deputy President and distinguishing earlier Commission decisions where the relevant issue had not apparently been argued ([25]-[26]). It would therefore be inaccurate, on this source alone, to claim that later courts have adopted, limited or overruled this reasoning.
At [17], the Deputy President said s 589(2) “is not an independent source of power” to issue interim orders. In plain English, a general provision allowing interim decisions does not, by itself, authorise any temporary order a party requests. There must be a substantive statutory power that supports the order.
At [18], he identified the matter before the Commission as an application under s 789FC seeking an order under s 789FF. The practical implication is that the character of the application matters: the Commission could not treat the request as a free-standing injunction detached from the Act’s anti-bullying provisions.
At [20], the Deputy President said that a future risk of continued bullying must have a rational foundation and be more than speculation. This connects the forward-looking part of s 789FF to findings about what has already happened. The assessment of future risk is not presented as a prediction without an evidentiary basis.
At [22], he drew a clear line between an arguable case and statutory satisfaction. “One cannot be satisfied on an arguable basis” means that showing an issue worth trying is not equivalent to the Commission forming the state of satisfaction required by the legislation.
At [28], he described the purpose of an anti-bullying order as preventing workplace bullying, not ensuring continued employment or preserving the status quo. This limits the relevance of hardship arguments where the order sought is not shown to prevent the kind of conduct the provision addresses.
At [29], he left open the possibility that termination could itself be part of a course of bullying in a particular case. But he did not find that the evidence before him established that connection here. The passage should therefore be read as a qualification, not as a general rule that termination can never be restrained through an anti-bullying order.
The decision is most directly relevant where a party asks the Fair Work Commission for urgent interim relief in a substantive application under s 789FC, and argues that s 589(2) permits the Commission to grant relief on a prima facie-case or serious-question test before it is satisfied under s 789FF. The judgment rejects that route ([16]-[23]).
It is also relevant where the requested order would prevent dismissal or preserve employment pending the final determination of an anti-bullying application. The decision requires attention to the purpose of the proposed order: whether it is directed to preventing bullying at work, rather than simply maintaining employment or preserving the status quo ([28]-[29]).
The judgment does not establish that every interim application involving a possible dismissal must fail. It recognises that termination could itself be a final step in a course of bullying and that its prevention might, in some circumstances, serve the statutory purpose ([29]). The particular evidence and the connection between the proposed order and prevention of bullying remain important.
Nor does this decision resolve the underlying factual questions in Mayson’s substantive application. It does not determine whether the alleged exclusion, ridicule, isolation, gossip, PIP-related conduct or return-to-work issues amounted to bullying. The Deputy President expressly left those matters for proper consideration of the evidence ([27]).
The judgment text supplied here contains no account of later courts or tribunals considering Mayson. It therefore does not support a description of later judicial treatment, such as adoption, distinction, approval or reversal.
The decision itself discusses earlier Commission decisions. It says that interim applications had previously succeeded on a serious-question and balance-of-convenience approach, naming Lynette Bayley [2017] FWC 1886 and Worker A and others v AMWU and others [2016] FWC 5848. But Deputy President Colman qualified that comparison: the jurisdictional issue he addressed did not appear to have been argued in those cases, and the parties had proceeded on a common assumption about s 589(2) ([25]). The judgment thus distinguishes the circumstances of those decisions rather than deciding that they were wrongly decided.
A footnote also refers to Trustee for the P and J Cunningham Family Trust v Victorian Ambulance Union Incorporated [2020] FWC 142 in connection with the possible interaction between s 589(2) and substantive statutory provisions ([26] n 3). The text says this reference concerns bargaining orders; it does not set out a broader treatment of that case.
For a research assessment of subsequent treatment, this judgment alone is insufficient. It records the Deputy President’s analysis and the authorities mentioned in the decision, but not what any later tribunal or court said about it.
Several questions are expressly or implicitly left open by the decision. First, the Deputy President said the level of risk required by s 789FF “may be debated”, while holding that it requires more than speculation and a rational foundation based on identified historical context ([20]). The judgment does not formulate a precise threshold beyond those observations.
Second, the decision does not determine when termination itself might be a step in a course of bullying such that an order preventing it could serve s 789FF’s purpose. It recognises that possibility but says the material in Mayson’s case did not persuade the Deputy President that it applied ([29]).
Third, the decision does not decide the substantive bullying allegations. The nature of the disputed conduct, whether it was repeated and unreasonable, whether it created a risk to health and safety, and whether a risk of continuation existed were matters left for the substantive process ([19]-[20], [27]).
Fourth, the judgment does not set out the evidence needed to establish the statutory satisfaction at an expedited hearing. It says the Commission may hold an expedited hearing and may then issue temporary or final orders, and notes that narrowing the issues in dispute can assist where an application contains a lengthy history and many allegations ([30]). It does not prescribe a particular evidentiary procedure.
Finally, the decision’s discussion of earlier Commission cases is limited to the apparent absence of argument on the jurisdictional issue. The text does not resolve how the reasoning should be reconciled with every prior decision applying an interlocutory test, or how subsequent decisions have interpreted it.
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s.789FC - Application for an order to stop bullying
[1] This decision concerns an application for an urgent interim order sought by Ms Leanne Mayson to prevent her dismissal. The matter arises in connection with a substantive application made by Ms Mayson under s 789FC of the Fair Work Act 2009 (Act) for orders to prevent her from being bullied at work. In that application, Ms Mayson contends that she has been subjected to repeated unreasonable behaviour engaged in by her employer, Mylan Health Pty Ltd (company), and eight named individuals who are employees of the company.
[2] Ms Mayson alleges that she was first subjected to bullying conduct in 2014, when one of the named individuals unreasonably refused to approve reimbursement of a travel-related expense. She says that from around May 2017, the company and six of the named individuals bullied her in a number of different ways, including by excluding her from work events, ridiculing and isolating her, and gossiping about her. Ms Mayson says that in early March 2019, following a further instance of bullying, the company told her that some of her colleagues had complained about her conduct. The company proceeded to place her on a performance improvement plan (PIP). Ms Mayson submits that she was subjected to further bullying conduct connected with the PIP. She says that she was not provided with the details of the complaints against her, and that the PIP, which sought changes in her behaviour, was unreasonable. She submits that her complaints about the PIP were ignored, and that the company did not apply its own performance policies to her case.
[3] On 11 March 2019, Ms Mayson was certified unfit to return to work because she was suffering from a depressive illness. She has not returned to work. Ms Mayson contends that she has been subjected to further bullying during her absence, and in particular that the company has sought to have her return to work during a period of personal leave. Ms Mayson says that, according to her doctor, she could return to work in late March or early April 2020 if the company makes reasonable adjustments to her working arrangements, including by removing the PIP and changing her reporting line.
[4] Ms Mayson says that the bullying conduct to which she refers has had a significant adverse effect on her health and wellbeing, and that it has, among other things, caused her to suffer stress, anxiety and depression.
[12] The provisions that are relevant to the present application are the following. Section 589 of the Act deals with the power of the Commission to make procedural and interim decisions. Section 589(1) states that the Commission may make decisions as to how, when and where a matter is to be dealt with. Section 589(2) then states that the Commission 'may make an interim decision in relation to a matter before it.'
[13] Section 789FD(1) defines what is meant by worker being 'bullied at work':
(a) while the worker is at work in a constitutionally-covered business:
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.
[14] There is no dispute that Ms Mayson works for a constitutionally-covered business, as the company is a trading corporation. Ms Mayson contends that the company and the individuals have repeatedly behaved unreasonably towards her, and that their behaviour has created a risk to her health and safety.
[15] Section 789FF(1) sets out when the Commission may make an anti-bullying order:
(a) a worker has made an application under section 789FC; and
(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.
[16] I reject Ms Mayson's contention that s 589(2) is a discrete source of power that enables me to make an interim anti-bullying order, and that the requirements of s 789FF need not be met.
[17] Section 589(2) states that the Commission 'may make an interim decision in relation to a matter before it.' It is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular 'matter before it', the Commission has no power to do anything at all under s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any 'dispute' that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute 'only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.' Section 589(2) is not such a provision.
[18] The 'matter' now before the Commission, for the purpose of s 589(2), is an application made under s 789FC. That application alleges that a worker has been bullied at work. It seeks an order under s 789FF to prevent a worker from being bullied by an individual or group. Any order I make in relation to this application will be an order under s 789FF. The relevant requirements of that section must be satisfied.
[19] Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need 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 reach a conclusion as to whether 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.
[20] Further, before issuing an order under s 789FF, the Commission must be satisfied as to the existence of a risk that a worker will continue to be bullied at work by the relevant individual or individuals. This requires an evaluation as to what might happen in the future, which is logically informed by the factual findings and evaluations that have been made about what has already occurred. Bullying cannot 'continue' if it did not occur in the first place. Exactly what level of 'risk' might need to be identified may be debated, however it requires something more than speculation, and should be based on some historical context that the Commission has positively identified. There must be a rational foundation for a conclusion that there is a risk that the worker will continue to be subjected to bullying of some description by the individual or individuals concerned.
[31] I am not satisfied of the matters in s 789FF. I therefore consider that I have no power to make an interim anti-bullying order of the kind sought. The application for an interim anti-bullying order is dismissed.
[32] As the parties are based in New South Wales, I will refer the substantive application to the anti-bullying panel head, Deputy President Clancy, for reallocation to a Sydney-based member.
[3] In relation to bargaining orders see Trustee for the P and J Cunningham Family Trust v Victorian Ambulance Union Incorporated [2020] FWC 142 at [25].
Printed by authority of the Commonwealth Government Printer
Leanne Mayson
Mylan Health Pty Ltd and others [2020] FWC 1404
The application for an interim anti-bullying order was dismissed because the Deputy President was not satisfied of the matters in s 789FF and considered that he had no power to make the order sought. He also stated that, even absent that jurisdictional impediment, he would decline the order on discretionary grounds. The substantive application was referred for reallocation to a Sydney-based member ([29], [31]-[32]).
[5] The respondents to the anti-bullying application deny that Ms Mayson has been subjected to bullying. The company says that it has legitimate concerns about Ms Mayson's behaviour which it has sought to address through the PIP. The company further contends that in late 2019 it advised Ms Mayson that it required her to return to work on normal full-time duties, but that she did not do so, and that on 3 March 2020 it sent Ms Mayson a letter asking her to show cause why her employment should not be terminated.
[6] On 11 March 2020 Ms Mayson's solicitors wrote to the company, stating that she had made progress in recovering from her illness, and requesting that the company consider making the reasonable adjustments referred to by Ms Mayson's doctor. On 12 March 2020 Ms Mayson sought an undertaking from the company that it would not terminate her employment until her anti-bullying application had been determined. The company replied on 13 March 2020, declining to give undertakings. The same day, Ms Mayson's lawyers sent to the company Ms Mayson's response to the show cause letter.
[7] Ms Mayson now seeks urgent interim orders, directed against the company and four of the eight individuals named in her application, requiring that they not take disciplinary action against her in connection with the PIP, including in particular that they not terminate her employment, until the final hearing and determination of her anti-bullying application.
[8] I heard the application for interim orders by telephone on the afternoon of 16 March 2020. The parties were represented by counsel.
[9] Ms Mayson contended that the correct approach for the Commission to follow in considering whether to issue the interim anti-bullying order she seeks was to ask whether she has established a prima facie case and if so whether the balance of convenience favoured the granting of an order. Ms Mayson contended that if both questions are answered in the affirmative, the order should be issued. She said that this is the approach that has been taken in a number of other decisions of the Commission in similar circumstances, and that I should adopt the same course in this matter. Ms Mayson contended that, in the present case, there is at least a prima facie case that she has been bullied at work. She referred to her treating doctor's reports as evidence of the effect of the bullying conduct on her health. Ms Mayson further submitted that she has established a prima facie case that she is at risk of being subjected to continued bullying at work. She contended that the balance of convenience favoured the making of an interim order to prevent her dismissal prior to the final determination of her anti-bullying application. She submitted that, whereas her employment would be at risk if no order were made, there would be little or no detriment or inconvenience that the company would suffer if an order were made.
[10] During the hearing, I asked Ms Mayson's counsel to identify the source of my power to issue an interim anti-bullying order based only on a prima facie case or serious question to be determined, given that s 789FF allows the Commission to make an anti-bullying order only if it is 'satisfied' that a worker has been bullied at work and that there is a risk that the bullying will continue. Ms Mayson's position was that the source of power was s 589(2), not s 789FF, and that therefore the Commission did not need to be satisfied that she had been bullied at work, or that there was a risk of further bullying conduct. Ms Mayson contended that the Commission would only need to be satisfied of the matters stipulated in s 789FF before making a final order under that provision. For the purpose of making an interim anti-bullying order of the kind she seeks, Ms Mayson said that it was enough for the Commission to be persuaded that she has a prima facie case, and that the balance of convenience is in her favour.
[11] The company submitted that Ms Mayson's allegations of bullying against it and the named individuals were without merit, and that the balance of convenience did not favour the granting of an interim order. It said the company should not be deprived of its right to end Ms Mayson's employment, if that is what it decides to do after having considered her response to the show cause letter. The company further contended that an order prohibiting Ms Mayson's dismissal would not be directed at preventing her from being bullied at work, because if the company does decide to terminate her employment, it will no longer be possible for her to be bullied 'at work'. Any order preventing termination of employment would therefore not be for the necessary purpose set out in s 789FF. Moreover, the company said that any decision it makes to terminate Ms Mayson's employment would not be related to conduct that could be described as bullying at work but would instead be the result of a legitimate disciplinary process. The company also contended that the Commission could not issue the order sought under s 789FF because it could not be satisfied of the relevant matters, and that it would be inappropriate for the Commission to issue an order under s 589(2) in circumstances where it did not have power to make the relevant order under s 789FF.
[21] I note that s 789FF deals directly and in general terms with the Commission's powers to make orders in relation to applications made under s 789FC. The Commission 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.' Even if s 589(2) did not exist, the Commission could make an interim (temporary) order under s 789FF. However, it cannot order pecuniary payments. And it cannot issue any order at all unless the relevant preconditions are met.
[22] The case put by Ms Mayson in this matter is that the Commission need only be satisfied that there is a prima facie case supported by the balance of convenience. However, a conclusion that an applicant for an anti-bullying order has established an arguable case or serious issue to be determined falls well short of the state of satisfaction required by s 789FF. One cannot be satisfied on an arguable basis. One is either satisfied, or not satisfied, that a certain state of affairs exists.
[23] Although Ms Mayson contended that s 589(2), and not s 789FF, was the source of power for the Commission to issue an anti-bullying order in the nature of an 'injunction', she nevertheless submitted that the prima facie case that needed to be established was a case referable to s 789FF, namely that the worker had been bullied at work and remained at risk. On her argument, s 789FF was relevant after all, but its requirements did not need to be met. This does not make sense to me. The essence of the argument seemed to be that s 589(2) enables the Commission to issue an administrative 'interim' injunction in relation to any matter that might be before it, despite what the substantive provisions in question might say about the Commission's jurisdiction. I cannot see any valid basis to interpret s 589(2) in this way. Section 589(2), a general provision which must relate to a 'matter before the Commission', would then have the effect of disengaging express requirements of the substantive provision and source of power - that the Commission be satisfied of the relevant matters. The applicant's argument reads s 789FF as requiring the Commission's satisfaction of these matters, unless an application is made for interim anti-bullying orders. This is not a sensible or coherent interpretation of the relevant provisions.
[24] Moreover, the Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.
[25] I appreciate that there have been a number of matters in which applications seeking interim anti-bullying orders in the nature of an administrative injunction have been successful, on the basis that the applicant has established a serious question to be tried, together with a favourable balance of convenience. These include the two decisions referred to in argument by Ms Mayson, Lynette Bayley[1] and Worker A and others v AMWU and others.[2] However, in these matters, it does not appear that there was any argument about the jurisdictional question I have referred to above. The parties proceeded on a common assumption about the Commission's power under s 589(2) in the context of an anti-bullying application.
[26] An 'interim' decision for the purpose of s 589(2) is one that is not a final decision. In its interaction with the various 'matters' that may come before the Commission, and the substantive provisions associated with those matters, s 589(2) might or might not facilitate the issuance of an interim order in the nature of an administrative injunction, depending on the substantive provisions in question.[3] In its interaction with s 789FF, s 589(2) cannot operate this way, for the reasons given above. On the other hand, there is nothing to prevent the Commission from issuing other kinds of interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s 789FF(1). For example, the Commission might be satisfied that a worker has been bullied at work and that there is a risk of continued bullying but require further submissions from the parties as to the final orders; an interim order might be made 'in the interim'. But what the Commission cannot do is issue an order under s 789FF, without being satisfied that a worker has been subjected to bullying at work, and that there is a risk that the bullying will continue. To make an order in such circumstances would be beyond power.
[27] Ms Mayson's application raises a large number of allegations against the company and the named individuals. These are serious matters. The company and the individuals deny that they have engaged in bullying conduct, or that there is any risk to Ms Mayson's safety at work. At this point in time I am not satisfied that the applicant has been subjected to bullying, or that she is at risk of further bullying. These questions remain to be determined, following a hearing or determinative conference, based on a proper consideration of the evidence.
[28] Further, I do not see force in Ms Mayson's contention that an interim order should be granted in the present matter because it is necessary in order to preserve the ability of the Commission to determine the substantive anti-bullying application. The contention implicitly, and correctly, recognises the difficulty with the proposition that a person will continue to be subjected to bullying at work after the employment relationship has ended. But it wrongly in my view sees the determination of an anti-bullying application as an end in itself, whereas such a determination is in fact a means to an end, namely the end specified in the Act: to prevent a worker being bullied at work. This is the purpose of an anti-bullying order. The purpose is not to ensure that employment continues, or to prevent termination of employment in circumstances which are said to be unfair, or otherwise to maintain the status quo until an anti-bullying application can be determined.
[29] I do not see the link between an order prohibiting the dismissal of Ms Mayson and the prevention of being bullied at work. If her employment ends, it appears to me that any 'bullying at work' will end with it. There may be cases where the act of termination of employment in itself is a further, albeit final, step in a course of bullying and that its prevention by order under s 789FF can still serve the relevant statutory purpose. However, at this point, based on the materials before me, I am not persuaded that the order sought would prevent bullying at work. Therefore, even if the jurisdictional impediment discussed above were absent, I would decline to issue the order sought in this case on discretionary grounds.
[30] Finally, the fact that an anti-bullying order under s 789FF can only be issued once the Commission reaches the requisite state of satisfaction about the relevant matters does not mean that the Commission cannot deal with anti-bullying matters quickly. The Commission may be able to conduct an expedited hearing, swiftly decide whether it is satisfied of the relevant matters in s 789FF and if so whether to issue an order. The Commission might decide to issue an interim (temporary) order, pending further deliberations on the appropriate framing of a final order, which might require further evidence. Or an expedited hearing might lead directly and quickly to the issuing of final orders. To assist the Commission to accommodate requests for expedited hearings, it would be helpful for the relevant issues in dispute to be narrowed as far as possible, particularly in cases where an application has a lengthy history and contains a large number of allegations.