May 09

A failure to investigate can be bullying: Lessons in triaging employee complaints

The recent anti-bullying order in the Fair Work Commission matter of Watts v Ramsay Health Care serves as a timely reminder of importance of ensuring that as managers and Human Resource professionals, you understand the requirements and purpose of your Bullying and Harassment policies. Specifically, it highlights that poor management decisions, in this case, the decision not to investigate an employee’s complaint, can form part of a bullying claim.

What happened?

Ms Watt brought an application against her manager and a Ramsay Health Care Human Resources Adviser for a stop bullying order.

Ms Watt, a catering assistant at Glengarry Private hospital, had (on at least two occasions during 2017) bought to the attention of her direct manager and Ramsay’s HR manager, allegations of bullying and harassment against several of her fellow workers. She alleged that she was being bullied by co-workers on her morning shift in that they had accused her of smoking beyond her allocated break, not doing her job properly, smelling of alcohol and that she had been subjected to other defamatory remarks.

Noting that Ms Watts had raised these concerns with her managers, including in the context of investigation of her own performance or behaviour, Ramsay determined not to commence any kind of enquiry or investigation into Ms Watt’s allegations, citing a lack of specific information and/or evidence about the allegations for their decision.

In granting Ms Watt’s application, the Fair Work Commission accepted that the managers had behaved “unreasonably” towards Ms Watt and that their decision not to investigate Ms Watt’s bullying allegations was not ‘reasonable management action’. The FWC determined that Ms Watt had been understandably reticent to name the offenders, but had nonetheless provided her managers with sufficient information and that those managers had “imposed their own requirements’ on how Ms Watts must complain to them about alleged bullying before they would commence an investigation”

The FWC also concluded that the managers failure to investigate Ms Watt’s complaints was a breach of Ramsay’s own Discrimination, Bullying and Harassment Policy which did not require the level of detail her managers required her to provide in relation to the bullying she alleged.

Key lessons

1. Understand the employer’s threshold requirements for an investigation

Most HR policies outline a general process for the resolution of disputes, just as the Ramsay policy did, with escalation points based on the seriousness of the complaint and the capacity and willingness of the parties to work with each other to resolve the issue at hand. Notably the Ramsay Policy also committed that all managers would to treat “all complaints seriously, investigating and resolving issues in so far as they are able”.

Stage 3 of Ramsay’s policy was to “formalise the complaint”. What is important to note is that, similar to most policies of this type, the title suggests a level of formality that is not actually set out in the detailed policy that followed. For example, the Ramsay policy noted that it was preferable that the complaint was made in writing but didn’t strictly require it. It provided no other guidance as to the information that the complainant should provide prior to commencing an investigation.

Although reluctant to name names, Ms Watts had provided, in writing, examples of what she said was the offending behaviour and names and contact details of relevant witnesses. The FWC found that
this was sufficient information to proceed with an investigation which, presumably would have identified the relevant respondents in due course.

The decision highlights the importance of:

  • understanding the circumstances in which your policy requires you to undertake an investigation (it’s probably broader than you think). Read those requirements in light of the purpose and intent of the policy;
  • resisting the temptation to impose your own minimum requirements on the information that should be provided before you investigate a complaint; and
  • being flexible about the information you require, taking into account the particular circumstances of the complainant.

2. Resist early judgment

Whilst we all of course make assumptions in our daily life, it’s important to remain as objective as possible when triaging an employee complaint. Try to remain curious about what bought the complainant to see you and remember that there are always two sides to a story.

In this case, it appears to me that the fact that Ms Watts raised her allegations in the course of her own performance management process, weighed on her manager’s mind in terms of his assessment of the substance and/or truth of her claims. Whilst there is no doubt that some counter claims are bought vexatiously, it’s important to seek out each party’s version of events, together with relevant witnesses and not to “write-off” counter claims merely because of the way in which they are bought to your attention or because you may perceive the complainant to be a serial complainer!

The other thing that strikes me about this matter is that Ms Watt’s co-workers appeared to be bullying her by raising relatively petty complaints about her work performance. It’s not clear from the facts why these were investigated and Ms Watt’s complaints were not, although the evidence suggests that Ms Watts complaints were attributed to personality conflict. On Ms Watts’ evidence, the “issues” within this team had persisted for a considerable period of time. Acknowledging it is not always practical to do so in a fast-paced working environment requiring many decisions to be made in any day, in cases such as this where, over time, there are repeated complaints and apparent conflict within a team, it may pay to conduct a workplace review to identify and resolve the prevailing issues before they land on your desk in the form of an employee complaint.

3. Poor management decisions can constitute bullying

This is not the first FWC case to highlight the scope of the definition of bullying under the Fair Work Act 2009, however, it does again highlight the importance of being consistent and transparent in making managerial decisions in resolving employee complaints and disputes. In assessing whether a managerial decision is “reasonable” the FWC will objectively assess all of the facts and circumstances. In this case, the managers repeated refusal to investigate Ms Watts’ complaints, despite her providing them with adequate detail to do so, was found to be unreasonable behaviour which contributed to a finding of bullying behaviour towards her.

It is often tricky to assess what action is an appropriate next step in response to an employee complaint and of course, not every complaint warrants investigation. Our book “Workplace Investigations”, recently published by Wolters Kluwer, outlines the relevant considerations for triaging complaints and provides useful guidance about how to conduct an effective workplace investigation.

About Brooke Hall

Brooke HallBrooke Hall has significant experience in the workplace relations area, having previously worked as a lawyer for 10 years at the now Fair Work Ombudsman. Brooke brings strong communication, investigative and analytical skills in the area of dispute resolution to Worklogic. Her strong client service focus and pragmatic approach ensures clients receive practical solutions to a range of workplace issues.

Worklogic has extensive experience in triaging and resolving workplace complaints.  If you would like advice on a workplace complaint, you can contact Brooke for an obligation-free discussion via email or by calling (03) 9981 6500.

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