Business Toolbox

Workplace bullying and harassment complaints can be challenging for employers to navigate, particularly when accounts differ or evidence is unclear.

Business Law WA’s Employment Law team answers employers’ common questions about responding to complaints, conducting fair investigations and managing the risk of employer liability.

Q: How should an employer respond to a bullying or harassment complaint?

A: Once an employer receives a complaint from an employee regarding alleged bullying or harassment, the employer must take the appropriate steps to address the matter. Failing to do so can expose the employer to legal and safety risks, including employee claims, payment of compensation and civil penalties.

If a complaint relates to sexual harassment, employers should be mindful of their positive duty to take reasonable and proportionate measures to eliminate sexual harassment in the workplace.

After receiving a complaint, steps the employer should take may include:

• Acknowledge receipt of the complaint and explain to the complainant the process that will be followed in line with the company policy and procedures (if applicable).
• Assess: Consider if there is any risk to the complainant or workplace. For example, do working arrangements need to be temporarily adjusted, or is the complaint serious enough that it warrants standing down or removing the respondent from the workplace pending further investigation. Offer access to support services such as an employee assistance program, where available.
• Investigate: Decide if a formal investigation is necessary. More serious or complex complaints are likely to require a formal investigation, while less serious matters may be resolved through informal processes. If an investigation is required, follow any applicable company policies and procedures and afford procedural fairness to all involved. Consider if the investigation can be handled internally or whether an independent external investigator should be appointed.
• Respond: After considering the evidence, determine whether the allegations are substantiated and what action, if any, should be taken. This may involve dismissing the complaint, taking disciplinary action, implementing additional training, facilitating mediation between the parties or adopting other measures.

Q: What happens if a complaint cannot be substantiated?

A: If a complaint cannot be substantiated, the reasons should be clearly communicated – ideally in writing, with careful wording – to the complainant and respondent. A complaint that cannot be substantiated does not necessarily mean that the complaint was false, nor that the respondent has been cleared of all concerns. Rather, an unsubstantiated complaint simply means that on the balance of probabilities there was insufficient evidence to determine that the alleged conduct occurred.

Where allegations are not substantiated, an employer should avoid taking disciplinary action on those allegations alone. However, the employer should continue to monitor the workplace for any victimisation or retaliation arising from the complaint and consider if other measures are appropriate to restore working relationships and minimise the risk of future issues arising.

Q: Can an employer be liable for an employee’s conduct?

A: An employer can be vicariously liable for bullying, discrimination or harassment carried out by an employee if they fail to take reasonable steps to prevent the conduct from occurring. To reduce the risk of liability, employers should:

• Promptly investigate and respond to complaints
• Conduct regular training on appropriate workplace behaviour
• Maintain clear and compliant policies and procedures
• Actively identify and manage workplace risks
• Take reasonable steps to prevent bullying, harassment and discrimination in the workplace

Q: What should a workplace investigation into a bullying or harassment claim involve?

A: A workplace investigation should be fair, impartial and sufficiently detailed to demonstrate that an employer thoroughly investigated a complaint. While every investigation will be different, a necessary first step is ensuring that the allegations are clearly identified and articulated, as this defines the scope and conduct of the investigation, including any respondent and witness interviews that may need to occur.

Once this has occurred, a workplace investigation should generally include:

1. Interviews with the complainant, respondent and relevant witnesses
2. Collection and review of relevant evidence, such as emails, messages, policies/procedures, workplace records and other documentary evidence
3. Opportunity for the respondent to respond to the allegations and any evidence to be relied upon
4. Consideration of all available evidence in an objective and impartial manner
5. Determination whether, on the balance of probabilities, the allegations are substantiated or not substantiated
6. Written report outlining the findings of the investigation, process undertaken and, if within scope, recommendations

How we can help your business navigate workplace complaints

Business Law WA can provide employers with legal advice on managing appropriate workplace behaviour and employee complaints.

Our Employment Law team can undertake independent workplace investigations and offers mediation services as an alternative method for resolving employee disputes.

Get in touch with our Employment Law team today. Contact us on 08 9365 7746 or [email protected].

This article is authorised by Business Law WA, an incorporated legal practice and wholly-owned subsidiary of CCIWA. The content of this article is general in nature and is not legal or professional advice and should not be relied upon as such.