Since the introduction of the anti-bullying scheme under the Fair Work Act in 2014, the Fair Work Commission has been clamping down on employers who neglect to address bullying in their workplace.
All employers have a duty to properly respond to and investigate any bullying allegations.
You should never attempt to cut corners in a bullying investigation.
Courts and tribunals have demonstrated a willingness to dismiss a workplace investigation as flawed when it fails to meet certain key criteria.
Below are 5 important steps to ensure that any investigation you undertake is fair and stands up to scrutiny if a court or tribunal is involved.
- Investigate fairly
To ensure that the investigation process is fair, be sure that:
- the respondent is given a clear summary of the allegations against them, including the facts and specific details, i.e. – who, what, where and when;
- the respondent is directly informed of any likely disciplinary outcomes that may follow if the allegations are proven; and
- the respondent is allowed to have a support person present during any interviews.
- Investigate independently and remain impartial
Ensure that your investigation is completely independent and that you remain impartial throughout the whole process. To do this, you must:
- avoid actual and perceived bias – judge each matter on its own merits and make sure that the investigator does not have a predetermined view of the investigation’s outcome;
- ensure there are no conflicts of interest, e.g. the investigator must not have been involved in any of the alleged incidents; and
- think carefully about who will be seen as completely impartial and consider whether it might be wise to engage someone external to the organisation to conduct the investigation.
- Investigate promptly
Complete your investigation in an acceptable timeframe and be certain to reasonably manage any delays.
- Investigate rigorously
Ensure your investigation is thorough. This means conducting your investigation in accordance with any steps set out in your grievance policy, adhering to the scope of your investigation, documenting and recording all evidence obtained throughout the investigation, and ensuring you are logical and clear in your fact-finding analysis.
- Maintain confidentiality
It is helpful to limit information about the complaint you are investigating to as few people as possible. This will help to ensure that the evidence you obtain is the recollection of the individual whom you interview, and is not in any way potentially affected by a discussion or comparison of recollection of an apparent incident prior to that interview.
Keeping things confidential also helps ensure that the workplace can continue to focus on core business without distraction. You should conduct each interview individually and in a discrete location.
Given the individual and organisational risks involved, you must respond effectively to any bullying complaints. Act quickly, thoroughly and in a fair and rigorous manner to uncover the truth of any concerns raised. This way, you can know the facts, make reliable decisions to manage risk, abide by the law and enhance your workplace culture.