This article is by Tim Lethbridge, Partner, and Vidal Hockless, Partner, Kott Gunning
30 September 2015
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An allegation of bullying may be, and usually is, an indicator of actual bullying. However, whether the result of a genuine misunderstanding, an unreasonable overreaction or a deliberate concoction for some ulterior purpose, an allegation may not be an indicator of bullying at all. Indeed, the making of the allegation may be an act of bullying in itself.
An employer must make a number of quick decisions about how to respond to such a complaint. When an allegation is made, one of the first questions is usually, whether the status quo in terms of work can continue while the complaint is being considered, or whether the complaint is of a nature that requires steps to be taken addressing issues of contact and proximity as between the alleged bully and the complainant.
The next question is likely to concern the issue of investigation. If an investigation of any consequence is to be undertaken, can the alleged bully remain at work at all, or without changes being made to his or her role? If the person cannot stay at work, then they should be suspended on full pay during that period. It should be made clear that this is not, in any way, an indicator of guilt.
Given that in the majority of cases, an investigation will be required, conducting an investigation is not usually a task that employers have training or experience in, especially if they do not have a dedicated human resources department. Not only is the investigation process difficult and time consuming in itself, but it requires very careful management of the individuals involved to minimise their personal distress and disruption to the business.
Once committed to the path of investigation of the complaint, procedural fairness is a vitally important element. If there is a failure of procedural fairness:
- and the process ultimately leads to an employee’s dismissal (either the bully or the victim or someone else altogether), it may give support to an unfair dismissal claim.
- and an employee alleges that they have been treated worse because of a discriminatory reason or because they have exercised (or failed to exercise) a workplace right, it will be more difficult to convince the Court of the real reason why the employee was treated the way they were.
- in some circumstances, distress caused by the investigation may worsen the condition of the complaining party (or create a mental health problem in another) and in an extreme case could itself become the subject of an allegation of further damage caused by negligence for which the employer is responsible. Investigations, where necessary, should not be hamstrung as a result of this concern, but should be conducted with such sensitivities in mind.
Procedural fairness includes:
- clearly informing the alleged wrongdoer of the allegations made against them in a way that allows them to properly respond to them. This does not necessarily mean giving them all the evidence (and the employer may not have all the evidence at that stage), but it does require enough information to be given to allow a proper response.
- giving the alleged wrongdoer sufficient time and opportunity to consider and respond to the allegations. This will usually be a relatively short period (say, a few days), but this will depend heavily on the nature of the allegations – for example, if the allegations stretched over a long period of time, it may be reasonable for the alleged wrongdoer to be allowed several weeks to go back over their records in order to respond to the allegations.
- conducting a proper investigation into the allegations – ie. relying on actual evidence rather than hearsay, assumptions, guesses or the like.
- forming a reasonable view of the facts once all the information has been obtained, but not before.
The difficulty lies in the detail. The specific obligations of procedural fairness will depend on the nature of the allegations, the person who has made them and the person who they are made against. More serious allegations will usually require greater formality, possibly involving a third-party investigator, especially if the allegations involve senior management. On the other hand, it would likely cause more harm than good to instigate a formal third-party investigation into an allegation which, even in the eyes of the alleged victim, is relatively minor.
If the employer decides to appoint a third party to investigate the allegations, this adds a level of independence to the process which, generally speaking, assists in establishing procedural fairness. It does however bring another level of complexity to the process.
An important early decision that must be made is who to appoint. There is no formal training required to conduct investigations. The most common appointments are human resources consultants, private investigators and solicitors. Solicitors are usually going to be the more expensive option but are also likely to have a better understanding of the potential claims that might arise from a particular allegation as well as the laws of evidence. Generally speaking, a solicitor would only be appointed for the more serious allegations. If a private investigator or consultant is being engaged, there can be advantages to engaging solicitors to instruct them to conduct the investigation, not least being to establish a clearer case for legal professional privilege in relation to the results of the investigation.
There should also be a clear understanding reached, before any investigation begins, as to the process that is to be undertaken and how the results are to be reported. For example, the employer should consider (and discuss with the investigator) the following:
- Will the investigator simply be taking statements and gathering evidence, or will they be forming a view as to what actually occurred?
- Will the evidence provided by the witnesses be provided to the alleged bully?
- Will a copy of the report be provided to the alleged bully if the allegations are not proved?
- Will a copy of the report be provided to the alleged bully if the allegations are proved – and particularly if the bully is going to be disciplined or dismissed as a result? Note that the employer may be obliged to provide a copy of such a report in any legal proceedings that result from a dismissal.
Of course, there is no advantage to appointing a third party if they are not, in fact, independent. If the third party has a pre-existing relationship with the employer, the witnesses or the alleged bully, the benefits of independence are likely to be lost. Similarly, it is important to ensure that the investigator complies with the obligations of procedural fairness – any failings in this respect will usually be treated as failings of the employer.
Allegations of bullying are serious and must be treated as such, but this does not override the need for procedural fairness in the course of investigating those allegations.
For more information on this update please contact employment law and workplace safety partner Tim Lethbridge and insurance partner Vidal Hockless on (08) 9321 3755.
The information published on the Kott Gunning website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.