How to avoid legal risk when conducting complex bullying investigations
Workplace bullying is an extreme form of misconduct and must be dealt with as such.
It involves repeated acts or omissions that:
- are unreasonable;
- hurt, intimidate or humiliate the victim; and
- create a risk to health and safety.
Any investigation into bullying requires great care. If you do not have an understanding of how the law affects investigations, there is an increased likelihood that a legal claim can be brought against you as a result of a poor investigatory process, particularly in complex cases.
Once an allegation of bullying is made, you must undertake an investigation to determine whether:
- the conduct that is alleged to have occurred actually did occur; and
- the conduct is in fact bullying, or in any way contrary to the behaviour your organisation requires of your employees – this is usually described in code of conduct or workplace policies.
While this appears to be a simple two-step process, it won’t always be the case.
When might a bullying investigation become complex?
Some bullying claims can be complex when they occur within a backdrop of unrelated issues such as performance management or poor health. For example, an employee may think performance management is retaliation for a bullying complaint they have made.
Don’t make the mistake of carrying out an investigation to find facts of misconduct against the complainant (a common device to deal with difficult employees).
The legal consequences for this can be dire. The Fair Work Commission has repeatedly found that such strategies defeat any disciplinary action taken and are in themselves adverse action by both the manager and the organisation.
11 steps to conducting a complex bullying investigation
Before starting the investigation, you will need to define what the scope of the investigation will be.
Take the following steps if you are investigating a bullying complaint that is complex:
1. Review the relevant policies and procedures to help you determine tests of good and bad behaviour, and develop a tick list of what to do to ensure procedural fairness.
2. Meet with the complainant and develop a document that accurately defines each alleged act of misconduct. Ensure you detail:
- the specifics of the conduct;
- when it happened;
- where it happened; and
- who was present.
Note that these allegations cannot be vague or unclear as they will be put to the alleged bully so they can respond. Encourage the complainant to be as specific as possible.
3. Advise the complainant of their obligations of confidentiality and that a breach of that would be serious misconduct.
4. Have the complainant sign off on the complaint, agreeing that it is true and correct.
5. Review the complaint and identify all documents and witnesses that are relevant to the complaint. Ensure you receive the documents and have read them before you commence interviews. Draft precisely the key points of the issue and develop an evidential matrix.
An evidential matrix is a table with the allegations and a space where each witness’s evidence and documentary evidence can be inserted against those allegations. This gives you a visual structure to review evidence and weigh its credibility.
6. Create a letter to the respondent (i.e. alleged bully) giving a direction of confidentiality and warning them that there must not be victimisation arising from the complaint.
Victimisation, in this context, is treating someone unfairly as a result of making a complaint.
7. Create a letter for any potential witnesses imposing obligations of confidentiality. Limit enquiries of witnesses to specific facts relevant to them. For example, only ask questions relating to what they witnessed rather than what they think happened or have learned through gossip.
8. Speak to the respondent and identify relevant witnesses and documents.
9. Collate evidence, review it and determine what, if any, further evidence is required. Speak to more witnesses if necessary.
10. Return to the complainant to obtain their final comments, and put to them any factual discrepancies, providing them with an opportunity to explain.
11. Prepare your investigation report.
What should your investigation report look like?
Your investigation report must:
- stick to the scope of the investigation;
- identify the investigation process adopted; and
- refer to any relevant policies and procedures. It should be brief and stick with the facts. No speculation.
It should make specific findings of fact in respect of the allegations. If it was part of the scope to determine if the behaviour breached policies and procedures or the law (e.g. bullying or discrimination), set out the legal and factual basis for such a determination.
Finally, be mindful of the standard of proof for finding facts, which is the balance of probability, which means that any finding must have at least a 50% probability of being true.
Never shape your investigation or the report to the organisation on leaders’ whims or desires. It creates legal risk for you under employment, safety and discrimination law; and it undermines the important governance role investigations play in workplace conflict.
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