Engage an external bullying investigation when transparency in doubt, says tribunal

Employers can pay heed to an organisation’s handling of unfounded bullying allegations which recently earned it the praises of the FWC. Even in light of this community services organisation’s thoroughness in dealing with the allegation, the FWC recommends that employers should engage independent third party investigators when employees feel adamant about internal reviews being compromised.

In this recent case, the court not only rejected the employee’s s789FC application for an anti-bullying order against her manager but also agreed that the employer would be justified to respond to her actions with “some form of disciplinary action”.

In 2013, the advocate claimed her manager became aggressive and mistrustful – repeatedly criticising, humiliating and belittling her when she refused to accept extra cases as a result of feeling overworked and overwhelmed. When she lodged a complaint in 2014, the chief executive handled the investigation and arranged an external mediation that led to an agreement between the advocate and her manager.

Although a further complaint arose, the second internal investigation (by the chief executive and HR department) concluded that the manager acted reasonably. Nevertheless, the employer took steps to arrange for management/leadership skills training for the manager, external peer supervision for her team and actively monitored the situation. Following her doctor’s medical advice, the employer granted her reduced working hours, an interim reporting arrangement, and agreed to pay for three counselling sessions with an independent psychologist.

Although the advocate claimed during proceedings that her employer’s investigations were not “proper or transparent”, Deputy President Peter Sams was satisfied that the chief executive’s internal investigations displayed reasonable actions that were “sound, appropriate and responsive” and that she had been given “every opportunity” to present her version of events. Instead, the deputy president found her to be “an argumentative and defiant witness who sought only to answer questions which she believed best suited her case against (her manager)”.

He warned the advocate to be mindful of her conduct in the future, and said that her employer already had “ample evidence” to justify disciplinary action against her. Deputy President Sams noted her original anti-bullying claim sought to discipline and demote her manager, but said it was never going to be an outcome as the jurisdiction was designed to “correct behavior”; not a means to deliver revenge or retaliation.

There was no evidence of bullying and the court noted that the advocate’s allegations apparently originated from her failure to win a promotion in 2013, while her manager succeeded. Furthermore, her claims of overwork – that taking on two extra files in two and a half years was overwhelming was an “absurd gross exaggeration” when she refused extra work.

Deputy President Sams also believed that it was still possible to salvage a “workable, courteous and professional relationship” and recommended that both the advocate and her manager “work very hard to achieve such a result”.

In conclusion, his first recommendation was that “in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation”. Regrettably, he added that in this case, “it would have unlikely made any difference to the outcome”.

At iHR Australia, we are a leading provider of independent, fair and thorough workplace investigations across a diverse range of industries including private sector, not-for-profit and government organisations. Our experienced investigators remain focused, sensitive and impartial throughout. You benefit from our balanced and pragmatic approach, where we ensure that all parties are heard and understood, and provide you a comprehensive report to determine the best way forward. Our investigation services range from dealing with informal complaints to significant and complex formal investigations and even review of your internal investigations to provide advice or recommendations.