Employers that fail to respond to a complaint in accordance with any established procedure will undoubtedly be criticised later
Managing workplace bullying complaints can often appear to be an overwhelming task for busy HR professionals. Nevertheless, it is important that complaints that are received are appropriately and promptly responded to.
Below we provide some general guidance to employers for responding to workplace bullying complaints.
Employer’s policies and procedures
In response to a complaint of bullying in the workplace, employers should refer to any relevant policies (such as a grievance policy or anti-bullying policy) or other procedure provided in an applicable contract of employment or enterprise agreement.
Employers that fail to respond to a complaint in accordance with any established procedure will undoubtedly be criticised later for failing to deal with the matter in accordance with their own rules – creating opportunities to challenge any non-compliant response as well as any subsequent action taken by the employer (such as disciplinary action) that follow.
For example, in Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC 64, the employee alleged that she suffered a psychiatric injury as a result of the bullying and harassment directed to her by the Store Manager over an 11 day working period and brought a negligence claim against the employer. The employee called the State Business Manager to complain that the Store Manager was bullying her. The employee was told “go home and put some lippy on” and “go home to your bub” and it was suggested that to resolve the situation the employee should meet with the Store Manager to have a “chat”.
The Queensland Supreme Court held that the State Business Manager’s response to the complaint made by the Employee was contrary to the Employer’s Bullying and Harassment Policy (Policy) and that the employer did not comply with its own Policy and processes. In particular, the employer failed to treat the complaint with appropriate seriousness and confidentiality, did not investigate the complaint and did not provide support to the employee.
The Court determined that it was reasonably foreseeable that psychiatric injury would have occurred as a result of the employer’s failure to follow procedures and handle the complaint promptly and in accordance with the Policy, and as such, the employer breached its duty of care. The employee was awarded the sum of $237,770 in damages.
Typically, a grievance policy will provide that:
- A complaint should be initially raised with the employee’s direct manager or supervisor, if appropriate and if not, then the next most senior manager or Human Resources;
- If the complaint cannot be resolved locally, or if the complaint involves the employee’s manager or supervisor, it should be escalated to a senior leader or to Human Resources;
- A preliminary fact-finding exercise/assessment of the complaint may be conducted where appropriate;
- A formal investigation maybe conducted where appropriate;
- Complaints may be the subject of conciliation or mediation;
- Complainants will be not be subject to victimisation or reprisal action; and
- Vexatious complaints will not be tolerated and the vexatious complainant may be subject to disciplinary action.
Confidentiality and procedural fairness
Claims of workplace bullying should be treated with confidentiality, as far as is possible. Effectively, this means that those involved will be instructed not to discuss the complaint and that the allegations will only be divulged on a need to know basis.
Equally, the alleged perpetrator must be afforded procedural fairness and must be provided with an opportunity to respond to the allegations.
Nature of the allegations
The nature of the bullying allegations will usually determine the immediate steps to be taken by the employer.
For example, a complaint that involves allegations of low-level bullying which may be better categorised as workplace conflict or a difference of opinion may be able to be addressed locally, whereas a complaint that involves serious allegations of systematic and ongoing bullying behaviours may require a formal investigation to be undertaken.
Further, the relationship between the complainant and the alleged perpetrator will also be relevant.
If for example, the complaint is made by one employee against another employee in the same team and there is the risk that the bullying will continue, or it involves a complaint by one employee against his/her supervisor, employers should consider whether the employees should be separated until the complaint has been resolved.
What to do with “informal complaints”
Employees may approach supervisors, managers or HR to make an “off the record” complaint and indicate that they do not want to make a formal complaint.
Even in these circumstances, supervisors, managers and HR should treat every complaint as formal and apply the grievance procedure. Failure to respond to a complaint once it has been heard can lead to allegations that the person (or employer) failed to take action to deal with the matter once they were put on notice of it.
Vicarious liability
A failure to fully and properly respond to a complaint of bullying could expose employers to liability where, for example, the employer or individual employees knew of the conduct and behaviour but did not do anything.
Employers could be held vicariously liable in negligence claims arising from the action (or some cases inaction) of their employees while individuals could be found to be personally liable if there has been a breach of work health and safety laws.
In the recent decision of Robinson v State of Queensland [2017] QSC 165, an employee suffered psychiatric injury as a result of breaches of duty of care by the employer. The Court found the employer vicariously liable for its Chief Executive Officer (CEO)’s conduct toward the employee, described as “managerial mistreatment” which included: unjustified blaming and humiliation of the employee, belittling the employee’s concerns and isolating the employee. Further it also held that the employer was vicariously liable for the CEO’s omissions as she failed to take “timely and determinative action” in response to other complaints lodged against the employee. The Court awarded the employee over $1.4 million.
Investigations
Depending on the seriousness of the allegations made, the employer may wish to conduct an investigation or an investigation may be required if the policy or procedure states that an investigation will take place.
An investigation must be conducted impartially and could be undertaken internally by a neutral employee or an external investigator could be appointed.
Outcomes
The outcome of a complaint of bullying in the workplace should be communicated to the complainant and the alleged perpetrator, including whether the allegations are substantiated or not substantiated. Similarly, any recommendations which may arise or areas that need to be addressed should also be communicated.
Where an investigation is taking place, any disciplinary action can only commence after the investigation has completed.
Ultimately, the key to responding to workplace bullying claims will be to ensure that they are they are managed in a timely manner and fully addressed, regardless of the content of the allegations. Left unaddressed, workplace conflict can escalate to workplace bullying, exposing employers to liability for failing to respond to these behaviours.
This is part three of a series of articles on bullying by Shane Koelmeyer, Director, Workplace Law. To read part one, click here or to read part two, click here.