Summary:
- Thorough investigations of complaints will help to protect both employer and employee from malicious or fictitious bullying complaints.
- Investigations need to not only be impartial but also appear impartial to all employees involved in the complaint.
- When possible, the investigation should be considerate of the employees involved in relation to their preferred methods of communication and normal working hours. • Performance management techniques can help minimise conflict between employees and management staff.
The process of investigating a complaint of workplace bullying or harassment is a serious task. An employee found guilty of such behaviour may face disciplinary action by their employer, including termination of their employment contract. As such, should an employee choose to make a bullying complaint that is in fact false, vexatious or malicious, this should also make them subject to an inquiry into their own conduct. Hunter v Commonwealth Department of Sustainability, Environment, Water, Populations and Communities [2013] FWC 7917 (“Hunter v Commonwealth”) is a case in which such a complaint was deemed to be malicious. It highlights the importance of conducting a thorough investigation and objectively assessing all of the information laid before the investigator before making a conclusion. Hunter v Commonwealth
Mr John Hunter began employment with the Department of Sustainability, Environment, Water, Populations and Communities (“the Department”) in 2008. On 20 August 2011 Mr Bensley was appointed as Mr Hunter’s direct manager. Mr Hunter alleged that he had previously conflicted with Mr Bensley in the workplace over how Mr Bensley chose to communicate with him.
On 1 March 2012 Mr Bensley sent an email to Mr Hunter regarding a mid-term review of Mr Hunter’s work performance. Mr Bensley identified areas of Mr Hunter’s performance that needed improvement and stated that if Mr Hunter continued to underperform, he may need to consider disciplinary action.
Mr Hunter responded by email to both Mr Bensley and Mr Bensley’s Senior Manager. Mr Hunter stated that he felt threatened by Mr Bensley’s communication with him, particularly in reference to the disciplinary actions that would be taken against Mr Hunter should he continue to underperform. Mr Hunter stated that Mr Bensley’s actions were contributing to his ongoing issues with a psychological illness.
The Department’s Professional Standards Section (“PSS”) were notified of Mr Hunter’s concerns and communicated with Mr Hunter on 19 March 2012. Mr Hunter indicated that he wished to make a formal complaint about Mr Bensley regarding threatening and bullying behaviour. Mr Hunter was informed that his complaint and any investigation into the complaint must remain confidential from any other person. In addition, Mr Hunter was informed that the seriousness of the complaint meant that should the allegations prove to be fictitious or vexatious, he may himself be subject to disciplinary action.
On 21 May 2012 Mr Hunter submitted a grievance document to the PSS stating that Mr Bensley had acted in a threatening manner and bullied Mr Hunter, resulting in psychological injury. The PSS conducted an assessment of Mr Hunter’s complaint and produced a report on 13 November 2012. In the report, Mr Bensley’s actions were viewed as being within the purview of “reasonable management action” and did not warrant a formal investigation. The report caused the PSS to form the opinion that the allegations made by Mr Hunter were without merit and warranted an investigation.
Mr Hunter was informed of the investigation into his own conduct. A lengthy investigation process was conducted by the PSS who produced an internal report on 15 March 2013. The report highlighted the discovery of email communication between Mr Hunter and two other employees, regarding Mr Hunter’s complaint against Mr Bensley. The emails indicated that Mr Hunter and the two other employees were colluding to make false allegations of bullying and harassment in order to have Mr Bensley fired from his position.
On 25 March 2013 the Department notified Mr Hunter by letter that upon consideration of the investigative report, they found that he had breached the Australian Public Service Code of Conduct. In making a vexatious complaint against Mr Bensley that lacked merit, Mr Hunter had failed to behave honestly and with integrity, failed to treat Mr Bensley with respect and courtesy, and failed to uphold the values, integrity and good reputation of the Australian Public Service. On 06 May 2013 Mr Hunter’s employment was terminated, as was “commensurate with the seriousness of misconduct of this nature”.
Mr Hunter made a claim to the Fair Work Commission, seeking compensation on the grounds of unfair dismissal. The Commissioner was required to decide on whether the termination of Mr Hunter’s employment was a valid response to Mr Hunter’s conduct.
Decision of the Commissioner
The Commissioner upheld the Department’s decisions to terminate Mr Hunter’s employment contract. He concluded that Mr Hunter’s allegations against Mr Bensley were without merit and that Mr Hunter’s conduct was “deliberate, seriously unsatisfactory and deceptive, and his motives for doing so breached the Australian Public Service Code of Conduct.”
Mr Hunter had claimed that he had not been afforded procedural fairness, specifically that he had not been provided enough time to prepare evidence for his original complaint, and had not been able to tender witness evidence in support of his claim from two other employees. However, the Commissioner noted that while there were some minor procedural flaws in the way that the investigation occurred, each person acting upon Mr Hunter’s complaint did so appropriately and had no affect on the final result of the investigation. Considerations for Employers:
The Commissioner was critical of some of the approaches taken by the PSS in their assessment of Mr Hunter’s initial claim and subsequent investigation. It provides some insight into considerations that should be undertaken by employers seeking to undertake a workplace investigation.
When an employer decides to investigate a complaint within the workplace the key investigator/(s) should not only be impartial to the investigation, but they should appear impartial to all employees involved. In Hunter v Commonwealth, the same investigators were used for the initial assessment of Mr Hunter’s complaint and for the investigation into Mr Hunter’s conduct. This prompted Mr Hunter to argue that the investigation lacked impartiality and was ultimately biased against him. The Commissioner was also of the opinion that a further separation of persons involved in these two processes could have occurred. Should an employer be conducting multiple investigations regarding connected complaints, where possible, those conducting the investigation should be different.
Mr Hunter notably preferred a communication style that was informal, verbal, and “less prescriptive”. This communication preference was a key factor in the initial conflict between Mr Hunter and Mr Bensley, and was a continual issue in the communication between the PSS and Mr Hunter during their investigations. Specifically, Mr Hunter took issue with the main mode of communication through formal emails, which potentially hindered his cooperation during the investigative processes. In this case, as the issues were regarding an employee within a government department and those involved in the investigation were located in different cities within Australia, it was appropriate to communicate primarily through email. However a small practice with minimal staff in close locational proximity may have more capacity to be flexible in modes of communication. Employers should nonetheless remember to keep a detailed record of all communication that occurs in relation to a workplace investigation.
In addition, the PSS did no always appear mindful of the fact that Mr Hunter worked on a part-time basis and therefore was not necessarily contactable outside of his working hours of Tuesday-Thursday. It was noted by the Commissioner that on at least one occasion, the PSS asked for a response from Mr Hunter by close of business on a Friday, disregarding the fact that he did not work on Fridays. While this did not ultimately prevent Mr Hunter from providing a response to the PSS, a higher level of awareness of Mr Hunter’s availability could have been utilised. When setting meeting times and deadlines for a response regarding an investigation, employers should be mindful of the working and contact hours of all employees involved in the matter.
A final consideration for employers regarding workplace conflict
From time to time, there may be clashes of personality, communication, and work styles between practice employees. This can create workplace conflict if not properly managed. Being aware of the different work and communication styles of employees and performance management techniques can help to minimise the risk of employee conflict and ensure effective employee management within the workplace. For more information, see [email protected] and use ClinLegal’s Guide: How to Investigate Workplace Complaints and our Guide: How to Effectively Address Under Performance available at www.clinlegal.com.au
This article was written by Rebecca Hyde, Workplace Compliance Advisor at ClinLegal in Adelaide. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).