In July 2023, Commissioner Hunt of the Fair Work Commission handed down her written reasons in the matter of Application by Lindsay Rosenblum  FWC 1640. Commissioner Hunt’s decision granted Ms Rosenblum interim orders preventing the Employer from taking any steps to finalise disciplinary proceedings against her. Ms Rosenblum also sought an order that the Employer only communicate with her legal representative.
This decision examined the issue of employers corresponding directly with an employee about disciplinary matters in circumstances where the Employee has made serious allegations of workplace bullying and is legally represented.
In mid-April 2023, when Ms Rosenblum stopped working after becoming unwell, the employment was ongoing.
On 7 June 2023, Ms Rosenblum filed an Application for an Order to Stop Bullying pursuant to section 789FC of the Fair Work Act 2009.
On 5 July 2023, Ms Rosenblum received a letter directly from the Employer outlining serious allegations of misconduct and inviting her to attend a disciplinary meeting the following day. The author of the letter who also sent it to Ms Rosenblum was alleged to have perpetrated bullying against her.
At the time the Application was made, Ms Rosenblum had been on leave without pay for approximately 2 months. Ms Rosenblum had also made a Workers’ Compensation Claim. At the time the letter was sent to Ms Rosenblum, the Employer had been communicating with her via her solicitor.
The Commission found that Ms Rosenblum was not expecting to receive a letter directly from her Employer containing allegations of serious misconduct and inviting her to attend a disciplinary meeting the day after receiving the allegations.
The Employer submitted to the Commissioner that Ms Rosenblum’s application was simply designed to prevent the disciplinary process from continuing which could have led to her employment being terminated and argued that the letter was reasonable management action carried out in a reasonable manner, these arguments were unsuccessful.
In granting the interim application, the Commission made orders preventing the Employer from taking any further steps to finalise the investigation. The Commission also ordered the Employer to not to engage in any further disciplinary action with Ms Rosenblum until the substantive Bullying Application had been finalised.
If an employee has made allegations of bullying, employers should be cautious in commencing disciplinary action while the bullying allegations remain unresolved.
Although employers are free to correspond with their employees, if, as in this case communications had been between the Employer and the Employee’s representative, consideration needs to be given as to whether the communication should be sent to the Employee directly or to their representative. The subject matter of the communication will be relevant to determining this question, for example; if the correspondence is in relation to a general workplace matter, it is appropriate that the communication be sent directly to the Employee. However, if the communication is in relation to the bullying allegations and these communications have been between the Employer and the Employee’s representative, the question needs to be asked, why should this change?
Written by Henry Coventry and Nicole Dunn