Managing underperformance where a bullying complaint has been lodged

HC interviews Jonathon Hadley, Partner, Gadens, for his insights on managing underperformance where a bullying complaint has been lodged.

1.    Can a disciplinary process be conducted concurrently with a bullying investigation?

One of the most common issues arising from a performance management process is a complaint of bullying or harassment. The complaint can either be in relation to a person conducting the disciplinary process, or another person within the organisation.

Complaints of bullying or harassment will more often arise as a result of the disciplinary process, however it may also arise shortly beforehand if an employee senses that they may be the subject of an investigation.

In either circumstance, employers are not automatically restricted from proceeding with both processes concurrently. There are no specific legislative requirement which requires the suspension of either process. In some cases, it may be operationally vital that the disciplinary process is undertaken and finalised expediently (for instance, where an employer’s policy requires it). 

However, when assessing whether it is appropriate to continue both processes concurrently, employers are encouraged to first consider whether the claim of bullying could be related to, or adversely affect the legitimacy of, the disciplinary process. An example of this may be where the disciplinary process relates to performance issues, and the complaint relates to the person responsible for assessing the employee’s performance.

A workplace participant’s conduct will generally be classed as bullying when that conduct is:
(a)    repeated;
(b)    unreasonable; and
(c)    a risk to health and safety.

Reasonable management action undertaken in a reasonable way is expressly excluded from, and does not constitute, bullying. For the most part a manager’s actions during a disciplinary or performance management process, if undertaken reasonably, will be considered reasonable management action. Notwithstanding this, employers wishing to proceed with both processes concurrently should ensure a number of precautions are taken to minimise the risk of a formal claim.

2.    If yes, how should HR proceed while handling these two processes?

Employers wishing to proceed with both processes concurrently should ensure that the following steps are taken, where appropriate:

(a)    Both processes are kept separate and distinct. It is essential that the persons involved in the disciplinary process are not also involved with investigating the complaint. Where human resources cannot facilitate this, or where the complaint involves senior management, employers should consider engaging an external resource to investigate the complaint. In some cases, external legal assistance may be most appropriate, should privilege be sought over the contents of the investigation.

(b)    Follow internal policies and procedures. Employers should ensure that they follow all internal policies and procedures when undertaking both processes. This will greatly minimise the risk that the management action (even if reasonable), was undertaken in a reasonable way.  

(c)    A clear and defined process for investigating the complaint is established. Employers should ensure that there is a clear process in place for investigating the complaint.

(d)    If possible, remove the subject officer from both processes. It is often the case that the subject of the complaint will be a person intricately involved in the disciplinary process. Where possible, this person should be removed from a decision making role in the disciplinary process. If employers are unable to properly investigate the complaint without the involvement of the subject officer, external assistance should be sought.

(e)    Keep clear and comprehensive written evidence of decision making process. In addition to further bullying claims, employers also risk a claim under the general protections provisions where disciplinary action has been taken following a complaint of bullying. Where such a claim is made, the employer is required to show that the disciplinary action taken was for a reason other than the making of the complaint. The question here is directed that the decision maker’s subjective state of mind at the time the action was taken. In these circumstances, it is essential that employers are able to rely on clear, comprehensive and contemporaneous documentation to support the real reasons the disciplinary action was taken.

3.    If no, which should be conducted first and why?

In circumstances where an employer has made the decision to only proceed with one process, it is normal practice to resolve the bullying complaint first. The primary reason employers may first wish to investigate the complaint of bullying is to ensure that the alleged conduct has not contributed to, or jeopardised the legitimacy of, the disciplinary process.

Where it is possible that the outcome of the complaint could change the outcome of the disciplinary process, it is recommended that the complaint be resolved first. Should employers first wish to resolve the bullying complaint, the above steps should still be taken where appropriate.

4.    How should HR proceed to minimise risks such as further bullying claims or adverse action in this scenario?

In addition to the tips outlined in response to question two, employers should:

(a)    undertake regular and scheduled reviews of their policies and procedures to ensure they remain up to date, and in line with the current legislative framework; and
(b)    ensure they are aware of, and in compliance with, any grievance resolution or response procedures outlined in the applicable enterprise bargaining agreement.

Jonathon Hedley will be speaking at the Employment Law for HR Managers masterclass 2016.

2 November I Dockside Darling Harbour Sydney
10 November I Four Points by Sheraton Perth
22 November I Stamford Plaza Melbourne
24 November I Brisbane Marriott Hotel