Supporting the respondent during a workplace investigation

Most of the research in relation to workplace bullying has been derived from the perspectives of the target of the bullying or witnesses; there has been very little research which has sought to examine the perspective and the consequences on the alleged bully when an allegation of bullying has been made against them.

Research from the UK and Australia presented at the conference examined bullying from the perspective of the accused and identified some common themes, which HR practitioners and leaders should consider when managing complaints of bullying and harassment.

Negative impact of the allegations on the accused’s health
Participants involved in the studies regularly reported taking time off work due to psychological disorders during workplace investigations. Notably, regardless if the allegations had been substantiated or not the research participants described similar levels of distress.

Isolation and lack of support
Most organisations have policies and procedures which offer support and assistance to those making allegations. However many respondents to claims of bullying state there is a clear lack of support afforded to them once complaints have been lodged and also during investigations, thus placing them in an isolated position.

Perceptions of organisational justice
Participants in the studies reported that although organisational policies place a focus on resolving issues at the lowest level, parties are often not given a chance to do this because there is a quick escalation. There was also a perception that complainants were shown greater empathy and treated differently to the respondent.

Importantly, the research supported the view that a person’s perception of fairness in an investigation is a key determinant on whether they decide to bring a further claim such as workers compensation or legal action. As such, aside from alignment with Values there is a key business driver to ensure the respondent is treated in a just and fair manner during the investigation is paramount.

Learning from a recent case – Hayes v State of Queensland [2016] QCA 191
A case was lodged to the District Court of Queensland by four employees who claimed their employer, the Maryborough office of Disability Services Queensland had breached their duty of care by not adequately supporting them during an investigation, whereby allegations of bullying and harassment had been made against them, leading to psychological injuries.

The Maryborough office of Disability Services Queensland’s investigation of bullying and harassment involved 26 complainants who made over 200 allegations against nine managers of bullying and harassment, the complaints were supported by the union. It was the second investigation of its type against one of the respondents over an 18 month period. Both investigations were conducted internally and resulted in the allegations being unsubstantiated. However, four of the nine respondents lodged an action in the District Court of Queensland. The employee’s complaint was not in relation to the internal investigation itself but that their employer did not fulfil its duty of care to provide them sufficient support at the time of the complaint and during the later investigation process which resulted in serious psychiatric injury.

The District Court of Queensland found that a duty of care did not arise and dismissed the employee’s claims. The four employees appealed the case, the Queensland Court of Appeal found that a claim could be made for failure to provide adequate support during an investigation.

Furthermore, it was found the duty of care was owed and was breached in relation to three of the employees, in that:

  • The employer had awareness of the size and seriousness of the investigation into the allegations of bullying and harassment against the employees;
  • Due to the size and maturity of the organisation they should have been able to foresee that if support was not offered the employees could suffer more than just distress; and
  • Although the employees were offered counselling, no other support was offered and some of the employees were required to continue working with multiple complainants and were subject to picketing by the union and media coverage in a provincial town.

While the Queensland Court of Appeal found a breach of duty of care, the claim did not establish the psychological injuries had been caused by the breach.

The case reinforces that it would be necessary to consider the individual situation in the workplace investigation to determine whether sufficient support is provided by a global organisational support system or whether a more tailored support is necessary.

This case, and the research outlined above highlights the need to ensure support is offered to all parties during an investigation and to be mindful of how perceptions of fairness and organisational justice are managed.

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