The countdown is on to the Fair Work Commissions anti-bullying powers which come into effect from 1 January 2014. In our last PEEL News: Workplace Bullying be prepared, you only have 6 months to go, we provided you with an action plan, click here, to assist you with your preparations.
It is important to note that one of the first steps that will be undertaken by the Fair Work Commission (FWC) before making any orders will be to determine whether a worker has been bullied. In doing this the FWC will assess the outcomes of any prior investigations into the matter. As an employer we must therefore ensure not only are we taking steps to investigate such matters but that our investigations will stand up to such review.
In the recent case of Swan v Monash Law Book Co-operative (June 2013), an employee who was repeatedly bullied by her manager was awarded $592,554.38 in damages as a result of her employer failing to take reasonable care to protect her from the workplace bullying. The employee initially advised her employer she did not want disciplinary action taken against the manager. As such the employer took no action. When further complaints were raised the employer failed to intervene and failed to properly investigate the matter. In addition to being highly critical of the lack of intervention, the Court was also critical of the organisation for relying on the request made by the employee for no action to be taken against the manager, failing to monitor the situation following the initial complaint, not having a complaint handling process in place and not articulating its expectations in relation to workplace conduct in job descriptions, employment contracts and workplace policies.
It is paramount that you have staff in place who are equipped to deal with bullying complaints and that such matters are dealt with in a timely and thorough manner. Having said this, it is also important to remember that workplace investigations are not required to be conducted to the standard of a police investigation.
It is necessary to observer the principles of procedural fairness when conducting a workplace investigation, however, there are occasions when deviations from the procedural norms have been overlooked. Take for example the case of Austin v NF Importers P/L, the court held that the dismissal of the employee in this case was fair despite investigative defects. In this case it was deemed that the grounds for dismissal were so serious they outweighed the procedural defects. The critical importance here is that the defects were procedural and not substantive in nature.
Additionally, the case of Rogers V Millennium Inorganic Chemicals Limited involved and employee who brought an unlawful termination claim against the employer. The employee claimed the employer had breached implied terms of mutual trust and confidence by:
- Not conducting a full investigation
- Refusing to tell the employee the names of the witnesses who had provided statements that had differed from his own.
The court determined the investigation conducted was sufficient. They highlighted that as the employee had denied the allegations outright, it was immaterial whether he knew the names of the witnesses. The magistrate hearing the case commented, “There is no obligation upon an employer in an investigation of this kind to conduct a perfect investigation or an investigation the equivalent of a police investigation…” It is prudent to remember that this kind of deviation may only be relevant to the extent of such cases where a respondent completely denies all allegations.
Whilst not every minor procedural oversight will result in challenges to your investigations, the importance of procedural fairness should not be paid lip-service. The evolving legal landscape will require your investigators to ensure that not only are the outcomes of their investigations substantively fair but that they are following due and proper process.
PEEL will be running the last of our Workplace Investigations training for 2013 on 16 & 14th October, to register go to: http://www.peelhr.com.au/workshops