Workplace bullying investigations: Key points to remember as an employer
The Fair Work Commission consistently takes a serious approach to employers who fail to address and resolve incidences and reports of workplace bullying. In addition to the need to ensure that are providing a safe and respectful workplace for your staff, it’s crucial that the way you handle and investigate any complaints is also respectful and considered.
It is important to conduct a thorough and fair investigation when allegations of workplace bullying arise. As an employer, you have a duty to properly respond to and investigate any allegations of bullying. The way you go about that is as important as the fact that you are doing it at all. This article aims to help employers both understand their obligations, and understand the requirements for meeting them. A poorly conducted investigation may prevent you from lawfully being able to act on any findings that you make, and could lead to an unfair dismissal claim from the person alleged to have bullied other staff.
Courts and tribunals are very strict about considering the way that bullying investigations are performed, ensuring that every step of the process has been carried out in a fair, respectful and clear manner. For this reason, it is important to understand what to do at each stage of the process and ensure that you are conducting the investigation in the best way possible. This better protects your business, yourself and each individual involved.
When conducting a workplace investigation, it is important to remember to:
1. Conduct the investigation in a fair and reasonable manner. This can be achieved by:
a) Giving the respondent a clear summary of the allegations made against them – this includes the provision of the facts and the specific details surrounding the allegations.
b) Making sure that the respondent is aware of the consequences or disciplinary outcomes that may occur if the allegations are proven to be true. If termination of their employment is on the cards, make sure they are aware of this.
c) Making sure that the respondent knows that they are allowed to have a support person present during all of the interviews (if they choose).
2. Remain impartial throughout the entire investigation. It can be incredibly damaging to an investigation if you favour one party or appear to be favouring one party. Essentially, this could jeopardise the outcome of the investigation and prevent you from relying on it to make any necessary changes or take action against particular employees. To achieve an independent and impartial standpoint, it is important to remember to:
a) Judge each point on its own merits and if you are engaging an investigator, make sure that they do not have a predetermined opinion on the events and/or the outcome of the investigation
b) Confirm that there is no conflict of interest between the investigator and either party. It is also important to ensure that the investigator or anyone assisting with the investigation process has had no involvement in the allegations or the alleged incidents.
3. Investigate as soon as the allegations arise. It is important to commence the investigation in a reasonable timeframe, ensuring that there are no length delays. If the matter is investigated too late, parties become agitated and more distressed, which can lead to increased frustration and heightened emotions.
4. Conduct an investigation in line with your grievance policy. Don’t have a grievance policy in place? Well it is time you have one drafted! Grievance policies are crucial for ensuring that all staff are aware of what to do when they are experiencing a grievance in their workplace. It also puts everybody on notice that grievances will be taken seriously, and will have consequences. An investigation should be conducted in line with this policy to ensure consistency with your internal practices and procedures.
5. Record everything. It is important to conduct a thorough investigation by documenting and recording all evidence throughout the entire investigation. This better protects both parties involved in the investigation and can reduce the legal risks that you may be exposed to. The more you have documented, the better placed you are to act on the outcomes of any investigation by performance managing or terminating somebody.
6. Ensure confidentiality throughout the entire process. Maintaining confidentiality throughout the entire investigation process is of utmost importance. This protects all parties involved and ensures that the investigation is not jeopardised.
By following the above points, you are better equipped to handle a workplace investigation and ensure compliance with the courts or tribunals expectations.
What we recommend for your business
We recommend that you implement a bullying and harassment policy in your workplace and ensure that all staff are aware both of the contents of the policy, and your workplace’s strong stance against workplace bullying and harassment. We also recommend that you have a grievance policy and a proper procedure in place for conducting investigations so that when allegations arise, you are adequately equipped to handle the situation and decrease the risk exposure to your business.
As an employer, it is important to understand the legal implications of workplace bullying claims and the significant impact it has on all parties involved. Procedural fairness and natural justice are crucial in this area, and as an employer, the risks are high. By implementing the right policies and procedures for your business, it demonstrates commitment to legal compliance in this area and reduces any legal liability faced by your business.
If you need assistance drafting these policies and procedures or if you would like legal support during an investigation process, please feel free to call us on 03 9111 5660 or email jessica@sinclairmay.com.au.
This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation.
Published Sep 30, 2018
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