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Bully boy behaviour on the high seas? Federal Court rules subsequent investigation flawed

A shipping company breached an officer's contract of employment and failed to follow its discrimination policy when it conducted a flawed investigation into alleged bullying by her captain, a full Federal Court has ruled, overturning an earlier ruling by a single judge.

The company was also found to have contravened the policy by treating an email from the officer as a formal complaint and combining it with separate allegations from her captain about her competency.


The trouble began during a 12-day voyage in 2011, when the female officer was allegedly bullied by the male ship’s captain. The officer sent an email to the company's general manager and HR personnel in which she referred to the captain's "targeted bullying" of her from the start of the trip. She did not however refer to the discrimination policy and said that the captain's "inappropriate behaviour" was a matter for management to address.

Despite this, the company treated the officer's email as a formal complaint under the policy and summoned her to an interview during which it asked her a number of questions going to her competency. The company's final investigation report put the dispute down to a "clash of personalities and communication styles", and rejected the officer's claims. 

However, the court said the shipping company had breached its policy in a number of respects, including by: 

• dealing with the officer's email as a formal complaint, and failing to consider the policy's informal options;
• neglecting to properly document the inquiry; and
• failing to "carefully and systematically" investigate the allegations.

"A formal complaint should not be inferred by receipt of an email from an employee which makes no reference whatsoever to the Policy, makes no reference to a formal complaint and does not specify details of a formal complaint," the court said.

The bench said the company’s interview of the officer was of "serious concern", likening it to an ambush, and said that the company had "strangely" interviewed the captain first. It said the company's HR department had not collated detailed allegations from the officer before interviewing the captain, and did not interview a number of potential witnesses.

The court concluded that rolling up the officer's concerns about the captain with his complaints against her caused "major difficulties", and that the "two lines of inquiry should have been kept separate".

"It was appropriate for the company to pursue [the captain's] challenges about [the officer's] competency, but in doing so, there were procedures designed by the enterprise agreement which were to be followed," it said.

"It was also appropriate, indeed, promised under the contract that if a complaint were made under the Policy, it would be pursued in accordance with a certain standard. Not only was no formal complaint actually lodged, but the standard applicable under the Policy, had it been lodged, was not met. The Policy, and thus the contract, was breached…"

The company argued that the policy was no more than a set of directions for handling workplace harassment and discrimination matters. But the court noted that the officer's letter of engagement stipulated that the company's policies were to be "observed at all times", and that the discrimination policy set out what the company was required to do on receiving a complaint.

The appeal bench said that the policy's language made it clear that the company expected there would be "mutual obligations". 

"In return for the employee complying with the terms of the Policy, the employer gives a responsive assurance that complaints of non-compliance by other employees will be treated in a certain way," the full court said.

Also relevant was that the policy was the subject of an education program for new employees, was regularly reinforced, and applied to conduct that could have serious consequences in a shipping environment.

"While some parts of the Policy may have been aspirational and some parts directive, the company’s obligations in relation to dealing with serious complaints of sex discrimination and bullying were contractual promises given in exchange for employees being obliged to comply with the behavioural requirements imposed on employees by the Policy," the bench said.

iHR believes that this case underlines the need for workplace investigations to be undertaken scrupulously and fairly.

iHR Australia is a leading provider of workplace investigations services to organisations that are dealing with allegations of inappropriate workplace behaviour. iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. We are experienced in dealing with complaints at operational to senior executive and board level, including liaising with unions involved in representing parties to a complaint. iHR can also review your internally conducted workplace investigations providing advice or recommendations. This service can help ensure internal workplace investigations are sound and will stand up to external testing.

 

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