Recent interim orders of the Fair Work Commission (FWC) effectively prevented an employer from taking further steps to finalise its investigation of an employee’s conduct and take disciplinary steps against her, until the FWC had determined the employee’s stop-bullying application. In this blog post, we discuss the background to this case and highlight the potential impacts of the case for employers conducting workplace investigations.
The applicant in this case, Ms Bayly, a senior executive at Bendigo Kangan Institute of TAFE (BKI), made a stop bullying application to the FWC earlier this year. Ms Bayly’s case was that the misconduct allegations made against her, and the investigation that followed, were acts of ‘unreasonable behaviour’ by other BKI employees and that, together with other alleged behaviour, amounted to bullying at work. The crux of Ms Bayly’s claim was that BKI had only investigated her alleged conduct after she had made allegations against another BKI executive.
In contrast, BKI argued that the investigation of Ms Bayly’s conduct and any proposed disciplinary action was ‘reasonable management action’.
Ms Bayly was stood down from work on 28 March 2017. On 30 March, she was diagnosed with a depressive illness, rendering her unable to work or participate in the investigation process until at least 23 April 2017. Shortly after being notified that she was unwell, BKI told Ms Bayly that they intended to proceed to finalise their investigation into her conduct, requiring her to attend a meeting on 3 April. BKI acknowledged that the outcome of the investigation could result in disciplinary sanctions against Ms Bayly including, potentially, termination of her employment.
On 4 April, Ms Bayly applied to the FWC for interim orders effectively suspending BKI’s investigation and preventing it from taking any steps to impose disciplinary sanctions against her. The FWC granted those interim orders.
What is the impact of this case on dealing with employee complaints?
There has been some concern that this case will ‘open the floodgates’ and provide an avenue for employees to effectively frustrate an employer’s proper disciplinary process. This seems unlikely, however, given that the FWC did note that the decision to grant the interim orders was not taken lightly and was based upon the particular and peculiar mix of facts in this case.
That said, the case does raise a number of important issues to think about when dealing with employee complaints, cross-complaints and investigations generally.
Dealing with cross-complaints
It can be tricky to work out the best avenue to resolve employee complaints at the best of times. This is especially so when complaints arise during the course of another investigation.
In our experience, it is common for respondents to raise issues of poor behaviour against the original complainant in the course of answering the complaint against them.
To ensure fairness and consistency, cross-complaints should be dealt in the same way as any other employee complaint; that is, by following your organisation’s relevant policies and procedures and complying with relevant contracts and legislation.
Cross complaints can, however, give rise to peculiar issues for employers to work through including:
- If you decide to investigate the cross-complaints, who will conduct the investigation? From a procedural fairness point of view, is it appropriate for the cross-claims to be investigated in the course of the current investigation or should a new investigator be appointed? It may be worth seeking expert advice on your specific situation.
- If you decide not to investigate the cross-complaints, has this decision been communicated to the parties in a timely and fair manner?
We also find that employers are often concerned that cross-complaints have been made vexatiously.
It is important to remember that a complaint is not vexatious simply because it is not proven, and also that a complaint is not more likely to be true simply because it was the first to be lodged. Vexatious complaints are made maliciously. In deciding whether the allegations are vexatious, the initial allegations should be investigated first. A second and separate assessment all of the facts should then be conducted to work out whether the allegations were knowingly false and made with a vexatious or malicious intent. Read our related blog post for more advice on dealing with vexatious complaints.
Making informed and reasonable decisions
This case also highlights that it is possible for decisions made in the course of applying employer policies, if made unreasonably, to be considered bullying behaviour.
For example, decisions about whether or not to commence an investigation, decisions about how you conduct an investigation and decisions about disciplinary consequences, if not made in a consistent, unbiased and transparent way, may amount of bullying at work. Of course, what renders a decision “unreasonable” will depend on all of the facts and circumstances of each case.
Duty of care for investigation participants
In this case, it also appears that BKI was set to finalise its investigation of Ms Bayly’s conduct whilst she was unwell, unable to work and unable to participate in that process, had the FWC’s interim orders not been made. The FWC noted this as a relevant consideration in its decision to grant those orders.
It is timely to reiterate that employer has a duty of care to provide appropriate support to all participants during the investigation process.
More often than not this requires more than offering the services of an Employee Assistance Program. It may include, for example, temporarily changing reporting lines, team composition or working conditions whilst the investigation takes place to ensure that employees are removed from a potentially hostile or unsafe working environment.
It may also include delaying the investigation process to reasonably accommodate the participant’s needs. Of course, this doesn’t mean allowing a participant to postpone the investigation indefinitely, but it does mean working with the participant to find a reasonable way of progressing the investigation so that the needs of all of the parties are met.
Although this may sometimes appear a challenging situation, approaching it in an open and logical way, and identifying how to reasonably accommodate the participant’s needs is not only procedurally fair, but also promotes trust in the investigation process and could avoid further allegations of unreasonable conduct in the future.
If you would like to learn how to conduct fair and effective workplace investigations, register now for our one-day training course being held in Canberra, Melbourne and Sydney or book us conduct this training in-house.
About Brooke Hall
Brooke 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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