When and what to tell respondents about allegations against them…

Brooke Hall
January 16, 2019

It can be tricky working out what and when to tell a potential respondent about a complaint or allegations of inappropriate behaviour made against them, before a workplace investigation has commenced.

First and foremost – health and safety!

In considering how best to tackle any complaint, ensuring the health and safety of your employees is paramount. If the allegations are serious and the health or safety of complainant could be jeopardised, it may be necessary to take action shortly after you receive a complaint.

This may involve, for example, making new or alternative work arrangements, or standing down one or either of the parties. We would recommend checking your policies to check the circumstances in which standing down is an option (noting that standing down without pay occurs in rare circumstances).

What to tell the respondent when immediate action is required

Where the circumstances demand that you take action immediately to ensure the health and safety of the parties, and you know that you will soon undertake an investigation, you will obviously have to communicate with the respondent.

It can be difficult – in these early stages you may not have all the information you require to provide the respondent with the detailed allegations that will ultimately be investigated. It may be sufficient to tell the respondent that a complaint has been made and outline the general nature of that complaint.

For example, you could advise the respondent that a complaint of sexual harassment has been made against them and provide high level details about the conduct that is alleged.

At this stage, most respondents will be nervous about what happens next so it is prudent to also outline the investigation process you intend to undertake.

Make sure you include when you anticipate providing them with the specific allegations in this conversation. You also need to let the respondent know that they will have an opportunity to respond to the allegations, and when that is likely to occur. Stress that the investigation will be conducted fairly and with due process.

Where you need to triage a complaint – avoid jumping the gun

What to tell the respondent is often less clear cut when you have to do more work in triaging the initial complaint in order to work out your next steps. Let’s take an example…

It’s Monday morning and Tony from your IT department knocks on your door to talk to you about the way his manager has been acting towards him. Tony says that Michelle has been ignoring him for weeks, yelled at him during a meeting last week and that she’s directing all of the “good work” away from him and towards the new consultant, Anna. He’s printed some examples too, of the abrupt way she’s been communicating with him via email. He tells you that Michelle is waging a campaign to force him to resign. He thinks he can cope with the situation for now, as Michelle’s going on leave next week, but he wants you to address it. You’ve asked Tony to go away and think about some specific examples of Michelle’s behaviour and provide them to you in writing. You’ve worked with Michelle for a while and this behaviour seems uncharacteristic for her. What do you do next?

Informing Michelle about the complaint at this point may seem like a good idea in order to get her perspective and potentially nip the issue in the bud (and to get in front of any potential office gossip) however, it’s generally best to hold fire!

The case for holding fire

The behaviour that Tony alleges could potentially be considered bullying so for that reason alone you need to consider your next steps carefully – despite your reservations about whether the behaviour is characteristic of Michelle.

Procedural fairness requires that, if you are formally investigating a matter, the respondent be provided with allegations that clearly set out the conduct alleged and provide enough detail to enable them to sensibly respond.

Initial complaint documents or conversations (like the one you’ve had with Tony) rarely provide the facts with sufficient clarity and detail to form allegations. They often include emotive statements about the impact of the conduct on the complainant and irrelevant contextual information.

Providing this information to the respondent can often confuse the issues to be resolved, with the parties tending to focus on peripheral issues.

For these reasons, as a general rule, it’s best to avoid providing the respondent with a copy of the original complaint, unless your policies specifically require you to do so.

What do I do then?

Every situation will be different, however, it is ideal that before you inform the respondent about the complaint, you have taken all preliminary steps necessary for you to make an informed (and final) decision about how you will intend to deal with it.

It is often the case that your initial thoughts change about the most appropriate process to deal with a complaint, once you’ve got a clearer picture of the facts.

To use our example, organising a follow up interview with Tony (and potentially other witnesses) to obtain more detail about the alleged conduct is a very useful first step.

Following your interview, it might be that the allegations concern relatively serious misconduct, but you investigate them in a procedurally fair way because they don’t contain enough detail to enable a response.

Alternatively, based on this further information you might find that what was initially couched as bullying (for example) are really about a manager’s poor performance – which you might deal with via training or performance management (as opposed to a formal investigation).

You might also find that there is sufficient detail to proceed with an investigation. The key point is that you won’t know any of this until you have more clarity around the allegations.

Key advantages of taking time to triage

Being crystal clear with the respondent from the outset about about the process you intend to apply is also an integral part of ensuring you provide procedural fairness to the parties.

That clarity ensures that:

  • The respondent is not caused any unnecessary stress or anxiety worrying about the complaint or the process (for example, it may be that you decide not to investigate the complaint at all);
  • You do not further inflame the situation between the parties. It’s likely that the parties will need to continue to work together (assuming it is safe for the complaint to do so) whilst you decide how best to deal with the complaint. Keeping the details of the complaint confidential until you decide want to do helps to minimise the risk of victimisation and means that you can manage the scope of any subsequent process that you apply; and
  • You use your time and resources efficiently. Before they speak to you, both parties, and the respondent in particular, need to clearly understand how you will use the information they tell you. If you are not clear about what process you are using, and you don’t provide the participants with notice about how you intend to use the information they provide, not only will you undermine confidence in your process, you may find yourself having to repeat interviews, costing time and money.

Finally, if you are not sure what to do, seek advice from an expert in the space before doing anything – it can save a lot of time, money and pain in the long run.

About Brooke Hall

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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