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January 2020

Application for interim orders in the stop-bullying jurisdiction may not halt an employment termination

Application for interim orders in the stop-bullying jurisdiction may not halt an employment termination

The Case

Application by Leeman (2019)

Ms Leeman received a letter from her employer, Roads and Maritime Services (RMS), that it was seeking to terminate her employment on medical grounds, alleging she could not perform the inherent requirements of her position. RMS had obtained a medical report to support its position.

Ms Leeman sought interim orders from the Fair Work Commission (FWC) to stop the termination of her employment while her stop-bullying application was heard by the FWC.

The Verdict

To grant interim relief to Ms Leeman, the FWC had to be satisfied that:

  • there was a serious question to be tried as to Ms Leeman’s entitlement to relief;
  • Ms Leeman was likely to suffer injury for which damages would not be an adequate remedy if interim relief were not provided; and
  • the balance of convenience favoured the granting of an interim order.

The FWC dismissed Ms Leeman’s application for interim relief, finding that:

  • while Ms Leeman’s bullying application on its face raised a serious question to be tried, it was unlikely, on the facts of the case, that her application would ultimately be successful;
  • the issuing of an interim order to halt an employment termination needed 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”; and
  • on the facts of the case, the FWC was not satisfied that the balance of convenience favoured an order being issued.

The Lessons

The FWC has broad and discretionary powers to issue interim orders in the stop-bullying jurisdiction. The FWC determines each case on its own facts, trying to balance the rights of the employee and the employer. It is important that employers do not seek to terminate an employee who has made a stop-bullying application without a valid reason.

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