A possibly vexatious complaint? Keep calm and be procedurally fair to all

Grevis Beard
August 31, 2016

When your employees raise concerns of inappropriate treatment, your complaint handling process will swing into action. For the vast majority of cases, employees raise concerns genuinely.

But what do you do if you believe that an employee is not raising their concern genuinely? What if you believe that they are acting vexatiously? That is, that you consider they are making a complaint that is false, not made in good faith, or done in order to “get at” the employer or a particular employee.

There are three golden rules to follow in this situation:

Rule 1: Stay Calm

Before doing anything, take a few moments to reflect on what is going on here for you. Are you feeling angry, upset, shocked or frustrated by what you suspect is a vexatious complaint? If so, be mindful of your emotional response. Do not allow it to cloud your judgment or influence how you should respond to a complaint, or the person making it.

Rule 2: Do not short circuit your investigation process

Everyone has the right to make a complaint in good faith, and with the adverse action provisions in particular of the Fair Work Act 2009 (Clth), you need to ensure that you don’t treat someone badly because they have raised a concern.

As with all complaints raised, you need to follow your complaint handling process, one step at a time, and ensure that you are acting objectively and rationally, and that the complainant sees that this is the case.

Depending on what your complaint handling process may include, you may wish to explore initially with the complainant what evidence they have in support of their complaint as part of any “preliminary assessment” phase that is built into your investigation process. This may enable you to get an initial sense of what is the nature of the complaint and the evidence in support. For example, if it turns out that there is little actual evidence in support of the complaint being made, you may determine not to proceed to a full investigation.

Rule 3: You need a second, separate investigation to prove the complaint was vexatious

The fundamental error you need to avoid is that, upon conducting any full investigation into a matter, and finding that the alleged behaviour was not proven, that this proves that the complaint was brought vexatiously.

Only a second and separate investigation, conducted internally by another individual in your organisation or outsourced to an external provider, into whether or not the initial complaint was brought vexatiously, is the procedurally fair way to go.

Whilst a “black swan” event, it is important, like any concerns of inappropriate workplace conduct, to take steps where you believe an employee may be abusing the complaint process. In this respect, make sure you have a check of your complaint handling policy to ensure that you define for your employees what you mean by the term “vexatious”. Furthermore, in your induction, training, policy and values statements, be consistent in setting out the themes of rights and accountability of all in the workplace.

In summary, don’t rush to judgment, and investigate allegations of vexatious behaviour separately. In this way, you will also be demonstrating the fundamental integrity of your complaint process and upholding workplace values of accountability, honesty and integrity.


About Grevis Beard


Grevis BeardGrevis Beard is the co-founder and director of Worklogic. From his career as a barrister and solicitor and his specialisation in discrimination law, Grevis has significant knowledge of the dynamics of workplace disputes and their resolution. Grevis works with a range of clients to improve workplace communication, manage workplace risks, handle complaints and improve employee behaviour.

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