Do complainants always have the absolute right to determine how and whether any complaint that they have made will be investigated?
This article explores how an employer might wish to proceed where a complainant is clearly reluctant about the complaint they have made.
Who “owns” the complaint?
Complainants make complaints in all sorts of circumstances and contexts.Complaints may be “one off”; they may allege a series of incidents which cover months, or even years; they may cover a range of issues, some investigable and others less so.
Given the context and subject matter of alleged workplace problems, and the ways in which they become visible, it is not difficult to see how a perception may arise for some complainants that they “own” their complaint. Accordingly, complainants may also believe that that they are at liberty to terminate an investigation of the complaint if they choose to withdraw the complaint at some later stage.
A complainant is certainly entitled to withdraw his or her complaint at any stage, that is, to indicate that they no longer wish to themselves proceed with their own complaint in accordance with any explicit policy for the managing of a complaint where they are the complainant.
In Worklogic’s experience, complainants have withdrawn their complaint for a variety of reasons.
Some complaints may withdraw a complaint because they fear colleagues will become aware of their complaint or they fear victimisation.
Other complainants may have found that articulating the complaint to their employer was a sufficiently cathartic experience and that they do not wish to have their employer act any further on it. Sometimes, complaints are withdrawn where the respondent then resigns prior to the actual investigation commencing.
Responsibility for responding to allegations made
It can be very tempting for HR managers dealing with a complainant who wishes to withdraw their complaint to accept not only the withdrawal of the complaint but to also agree to the complainant’s wish to terminate any independent or separate investigation or review by the employer of the allegations in the complaint.
In doing this, managers are often acting with genuine concern for the safety and wellbeing of the complainant. Conflict in the workplace is stressful and difficult for all those involved. Accordingly, it may be considered less stressful to not commence or continue an investigation into allegations made once the complainant has expressed a wish not to proceed (further).
Once a complaint of alleged inappropriate behaviour has been brought to the knowledge of the employer, however, the responsibilities and positive obligations of employers and managers to ensure that the workplace is safe for everyone also need to be considered – alongside the decision of a complainant to terminate (or not proceed with) an investigation of “their complaint”. Knowledge of a complaint of alleged misconduct, discrimination or bullying effectively puts the organisation on notice that there may be a risk to the occupational health and safety of employees (including the complainant) in the workplace.
Obviously, at all times one needs to accommodate and consider the capacity of a complainant to be able to participate in any investigation.
New positive duties
As we discussed in our July 2010 newsletter, however, from 1 August 2011, all Victorian employers will now have a positive duty to eliminate discrimination, sexual harassment and victimisation under the Equal Opportunity Act 2010 (Vic)1 (the EO Act 2010). All employers are required to take ‘reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible.’2
Previously, employers were required not to discriminate against employees and job applicants.3 Employers were also vicariously liable for the discriminatory actions of their employees acting in the course of their employment. Accordingly, if a complaint had been made, an employer had then to show that they took reasonable precautions, such as having adequate policies, to prevent the employee contravening the Act.4
Under the EO Act 2010, however, there is now a positive duty for all Victorian employers to take ‘reasonable and proportionate measures’ regardless of whether a complaint has been made. Furthermore, if an organisation does not take these measures, they may be the subject of an investigation or a public inquiry.5
Accordingly, when an employer is advised by an employee that they do not want the employer to proceed with investigating their complaint, that employer needs to consider his/her responsibilities under the new EO Act 2010. If the employer does not proceed with an investigation, this may amount to a failure to take reasonable precautions to prevent the respondent employee from contravening the Act. Proposed national changes to OH & S law place similarly positive obligations on employers for providing safe and healthy workplaces.
At Worklogic, we regularly work with managers and HR professionals in the difficult early stages after a complaint is made. We have found that the following tips can assist in managing the process in the early stages when a complainant may be reluctant to proceed with an investigation into their complaint:
- Be clear from the outset that their complaint will be treated seriously and fairly;
- Explore why the complainant is expressing reluctance and respond accordingly to any misunderstanding or reasonable requests for complainant support whilst maintaining independence in the investigation process;
- Explain to complainants that once the organisation has become aware of their concerns, the organisation must act – as the officers of the organisation have obligations under OH&S and EO legislation. Decisions about how complaints are managed will be made by the organisation in accordance with any relevant policies and such obligations;
- Explain that the organisation must balance any potential risk to the complainant if choosing to proceed to investigate the complaint with the potential risk to other employees if the complaint is not investigated;
- As noted above, subject to their capacity to participate, the complainant should be encouraged to participate to give his or her perspective, but an investigation of the complaint may still need to proceed with or without the complainant’s participation.
- Complaints should be handled with strict confidentiality. Complainants should be informed about laws preventing victimisation to provide reassurance;
In the event that the complainant refuses to participate in an investigation, consideration may also need to be given to directing them to participate, again subject to their capacity to participate.
A more proactive way?
A proactive workplace may not wish to wait for a complaint to be made in order to get a sense of whether there are any possible workplace behaviours of concern.
Instead, such workplaces could always conduct an annual or periodic workplace review.
A workplace review is an open and qualitative exploration of what is going on in the workplace from the perspective of the employees that is not focused on an individual complainant’s allegations. Once relevant data has been collected, it may well be that specific recommendations from such a workplace review might proactively deal with any aspects of workplace behaviour or culture that might have otherwise led to allegations of (or actual) bullying or discrimination. Such recommendations may also be easy to implement and inexpensive, bring enormous benefits and make a lasting impact generally.
There is no doubt that raising a complaint about workplace behaviour can be a challenging and daunting prospect for a complainant.
Without giving legal advice, we note that once an employee makes an allegation of bullying, sexual harassment, discrimination or other misconduct, whatever reluctance a complainant may then have is not the sole determining factor for what happens next.
The employer has a plenary responsibility to respond effectively to the allegation/s raised. This responsibility arises not only from an obligation in relation to that complainant but also as part of a broader obligation to ensure the health and safety of the workplace generally.
Increasingly, a proactive approach will emerge, where improving workplace culture will see a greater reliance on utilising a solution-based workplace review.
Interactive Lunchtime Seminars
We have been very pleased with the enthusiastic response to our recent in house training seminars on “How to avoid Workplace Investigation pitfalls” with all sessions fully booked.
We are currently finalising our training schedule for the remainder of 2011 and we welcome your feedback on subjects that may be of special interest to you.
If you missed our earlier sessions and would like to discuss tailored training for your organisation, please let us know. Please direct any ideas or comments you may have to firstname.lastname@example.org