Are participants in a workplace investigation, as complainant or alleged perpetrator of misconduct, ‘untouchable’ by their employer – can their performance be managed, can they be disciplined, can they be retrenched without risk of court proceedings against the employer?

There is a view in legal and HR circles that the threat of claim by employees in the Fair Work Commission’s ‘adverse action’ jurisdiction means participation in a workplace investigation makes participants immune from any ‘adverse action’ by their employer. The action is not even justified by circumstances unrelated to the facts the subject of the investigation if it is merely contemporaneous with the investigation. This is a myth!
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Since 1 January 2014 employees who have been bullied at work have been able to apply to the Fair Work Commission for a range of remedies. Monetary compensation is not available as a remedy. It has been held that conduct occurring before 1 January 2014, when the laws commenced operation, can be considered in dealing with claims.
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“Don’t stand, don’t stand so

Don’t stand so close to me

Don’t stand, don’t stand so

Don’t stand so close to me”

The chorus of the 1980 hit Police song might be the most succinct way of summarising the first set of substantive orders made by the Fair Work Commission (FWC) under the bullying jurisdiction in operation since 1 January 2014. 
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Since 1 January 2014 the Fair Work Commission (FWC) has administered a new “one stop shop” bullying jurisdiction that can make orders to stop or prevent bullying in the workplace.  Previously bullying type conduct was addressed under a patchwork of different laws including the law of negligence, breach of contract and workplace health and safety legislation.
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