In any bullying complaint there are at least three parties involved: the complainant (the person raising the complaint) the respondent (the alleged ‘bully’) and the employer. In this article, we focus on employers’ obligations to employees who have raised an allegation of bullying – from the moment the complaint is received and beyond.
Consider the complaint with an open mind
Any bullying or harassment complaint received must be treated seriously. In our previous article, we detailed some practical steps managers can take when they receive a complaint. It is important that an employer considers the complaint with an open mind and in line with any relevant workplace policies before taking action.
Provide a safe and healthy workplace at all times
Upon receiving a complaint, and throughout a process relating to that complaint, the employer’s obligation to provide a safe and healthy workplace continues and should underpin every decision they make. When it comes to the complainant in a bullying situation, this includes:
- Taking any reasonably practicable steps to protect the complainant from retaliation.
- Ensuring the complainant is supported. Where possible, this should be by a trained professional, either privately or through the organisation’s Employee Assistance Programme (EAP) provider.
- Consulting on and implementing interim measures to ensure the complainant’s safety and welfare, while any investigation is ongoing, and beyond that if bullying is found to have occurred.
- Providing guidance to the complainant on interacting with the alleged bully if it is not possible to minimise or stop day-to-day contact.
Follow relevant workplace procedures
As a starting point, employers have an obligation to follow the process set out in their policies, handbooks and employment agreements. These processes are established to ensure complaints are dealt with fully and appropriately.
In the absence of any relevant policies, employers must follow a fair and reasonable process in all the circumstances. The process will vary depending on the unique facts of each case, so we recommend engaging with your legal advisor at an early stage to map out the process – and plan for any contingencies.
Communicate with the employee regarding the process that will be followed
Let the employee know the steps you are proposing to take to resolve their complaint. These steps will often require their agreement. If you are proposing to conduct an internal or independent investigation into their complaint, ensure complainants are:
- advised they are entitled to bring a support person or representative to any meeting to discuss the subject-matter of the complaint;
- offered an opportunity to comment on the draft Terms of Reference (if an independent investigation is being conducted);
- advised what information they will be entitled to; and
- advised how the investigation will be carried out, including expected timeframes for conducting interviews and communicating decisions.
Communicate throughout the process
Though an employer may not be able to provide specific updates throughout the process because they need to balance obligations to others, courtesy updates throughout the process with guides of timing are recommended.
Communicate any investigation findings
The complainant is entitled to know the factual findings of an employer’s investigation. However, an employer should carefully consider how this information is communicated. An employee will not be entitled to know whether any disciplinary action has been taken against the respondent.
An employer may also determine that it is necessary to make changes which prevent future bullying occurring. If these changes impact the complainant’s employment, the employer has an obligation to consult the complainant first.
When a complainant is unhappy with the employer’s response
If an employee considers their employer has inadequately or improperly dealt with their complaint, additional avenues are available to them including:
- raising a personal grievance; or
- bringing a claim in the Human Rights Commission (depending on the nature of the alleged events).
These claims are often costly for employers to resolve, even before they reach litigation. Get in touch with the team at Black Door Law for tailored advice on rights and obligations of complainants in workplace bullying matters and guidance from the moment of receiving a bullying complaint to its resolution.
Disclaimer: This information is intended as general legal information and does not constitute legal advice. If you have a specific issue and wish to discuss it, get in contact with the Black Door Law team.
This article is part of a 6 part series on Workplace Bullying, our other articles in the series can be found in the following links: