How should you handle a workplace investigation where the complainant and/or the alleged offender prove difficult? A legal expert weighs in.

So you’ve read our article on the right way to handle a workplace investigation. You have serious reason to believe that it was Colonel Mustard with the candlestick in the ballroom, and you have a carefully crafted investigation plan to get to the bottom of it all.

But what if, just as you are about to launch the investigation into allegations of misconduct, the accused employee presents a medical certificate advising that they are unfit for work and will be on stress leave for the next three weeks?

Let’s call this the “absent participant”.

In addition, let’s say this complaint isn’t the first to come across your desk this year. In fact, it’s the fifth time in three months the same employee has lodged a formal grievance. That’s not even counting all the times they have already whinged to you about the inadequacy of the office stationery supplies, and the colour of the boardroom walls. Let’s call this employee the “vexatious complainant”.

Managing a workplace investigation can be challenging at the best of times. Below we consider a couple of the prickly issues that can arise when managing absent participants or vexatious employees in the context of an investigation, and some tips for how to successfully move forward.

The absent participant in a workplace investigation

When dealing with an ill or injured employee in a workplace investigation, you need to balance the need to complete the investigation expeditiously while not exacerbating an employee’s mental or physical condition.

Not only do employers have work health and safety obligations, an employer should also ensure that you have not taken unlawful adverse action against an employee. To put it bluntly, don’t try to get a response from an employee who is stuck in the surgical ward recovering from open heart surgery.

However, if the circumstances are considerably less severe, or you just need more information to get a better read on the situation, here are a couple of ways you could consider dealing with the absent participant.

  1. Are there adjustments you could make to your investigation plan to facilitate the employee’s participation in the investigation? For example, if the employee is unable to attend work due to the medical issues, they may still be in a position to respond in writing or by telephone to any questions the employee is required to answer.
  2. If the current medical evidence provided by the employee is insufficient, you could make further inquiries about the employee’s capacity to participate. This could mean asking the employee to provide clarification from their treating doctor, or to provide their consent for you to ask their doctor directly. If these pathways are unsuccessful, you may consider directing the employee to attend an independent medical examination.

In the meantime, there shouldn’t be anything stopping the rest of the investigation. An investigator can still interview other complainants, respondents and/or any witnesses, and continue collecting and if required, reviewing documentary evidence.

The vexatious complainant in a workplace inveestigation

A frequent complainant may not be your best friend, but their workplace complaints should still be taken seriously.

The Fair Work Act is designed to protect an employee’s right to make complaints and enquiries, even if the complaint is never substantiated. Make sure you do your due diligence before dismissing complaints, or the consequences could be less than ideal.

Take the recent example of Ms Robinson, a Director of Nursing at Cape York Health Service in Queensland. Ms Robinson alleged that she was subject to repeated bullying behaviour by the CEO of her employer, which caused such serious psychiatric damage that she was unable to return to work. By failing to look into the complaints (or at least find out if they were “vexatious”) the employer allowed the issues to linger, which in turn increased the uncertainty, conflict and unease of the whole situation. In this case, the employer’s failure to act cost it approximately $1.5 million .

For low-risk complaints from the vexatious complainant, feel free to get creative about how to handle the situation. A complaint doesn’t always require a formal workplace investigation in response. You could mediate conversations between employees, provide training on workplace conflict resolution, or even facilitate team bonding exercises designed to help resolve some of those niggly interpersonal issues.

Of course, if you are concerned that the complaints are becoming truly vexatious, consult your workplace policies or external adviser on how to counsel or discipline the employee.

Final reminders for employers

If these curly / churlish characters haven’t given you enough to ponder, consider these tips:

  1. All workplace investigations should be approached with careful consideration and planning, particularly when absent or vexatious employees are involved. Be sure to bear in mind any specific procedures for enterprise agreement or award-covered employees when planning how to manage the situation.
  2. Carefully document and communicate any reasons for delaying the investigation process, and the process taken by the business to manage that delay. Case law shows that where an investigation is brought before the court, the employer should be able to explain any reasons for the delay.

In just a few months the High Court is set to answer the question of whether employers owe a duty of care to employees in the conduct of workplace investigations. This could have significant implications for the approach of employers to these kinds of situations. Keep your eyes peeled for the High Court’s decision in Govier v Unitingcare Community.

This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety partner Aaron Goonrey. It was first published in HRM Online on 20 March 2018. The HRM Online version of this article is available here.