How should employers handle a workplace investigation where the complainant or alleged offender proves difficult?
What should an employer do if, just as it is about to launch an investigation into allegations of misconduct,(1) the accused employee presents a medical certificate advising that he or she is unfit for work and will be on stress leave for the next three weeks? This is known as the 'absent participant'.
In addition, what if the complaint is not the first to be filed this year? In fact, what if it is the fifth time in three months that the same employee (the so-called 'vexatious complainant') has lodged a formal grievance?
Managing a workplace investigation can be challenging at the best of times. This update considers some of the issues that can arise when managing absent participants or vexatious employees in the context of an investigation, and various tips on how to move forward successfully.
When dealing with an ill or injured employee in a workplace investigation, employers should 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, they should also ensure that they have not taken unlawful adverse action against an employee. To put it plainly, an employer should not seek a response from an employee who is in a hospital ward recovering from open heart surgery.
However, if the circumstances are less severe or the employer simply needs more information on the situation, the following should be considered when dealing with an absent participant:
- Can adjustments be made to the investigation plan in order to facilitate the employee's participation in the investigation? For example, if the employee is unable to attend work due to medical issues, he or she may still be able to respond in writing or by telephone to any questions that need answering.
- If the medical evidence provided by the employee is insufficient, the employer can make further inquiries about the employee's capacity to participate. This could mean asking the employee to provide clarification from a doctor or to consent for the employer to ask the doctor directly. If these pathways are unsuccessful, the employee may be directed to attend an independent medical examination.
In the meantime, nothing should stop the rest of the investigation. An investigator can continue to interview other complainants, respondents or witnesses, and collect and review documentary evidence if required.
Frequent complainants may not be ideal, but their 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. Employers should conduct due diligence before dismissing complaints or the consequences could be problematic.
Take the recent example of Ms Robinson, a director of nursing at Cape York Health Service, Queensland. 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 determine whether they were vexatious), the employer allowed the issues to linger, which in turn increased the uncertainty, conflict and unease of the situation. In this case, the employer's failure to act cost it approximately A$1.5 million.(2)
Employers should feel free to handle low-risk complaints from vexatious complainants creatively. A complaint does not always require a formal workplace investigation in response. Instead, an employer can:
- mediate conversations between employees;
- provide training on workplace conflict resolution; or
- facilitate team bonding exercises designed to help resolve interpersonal issues.
If an employer is concerned that complaints are becoming vexatious, it should consult its workplace policies or external adviser on how to counsel or discipline the employee.
Finally, employers should consider the following tips:
- All workplace investigations should be approached with careful consideration and planning, particularly when absent or vexatious employees are involved. Consider any specific procedures for enterprise agreement or award-covered employees when planning how to manage the situation.
- 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.
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. Its decision in Govier v Unitingcare Community could significantly affect the approach of employers to these kinds of situations.(3)
For further information on this topic please contact Aaron Goonrey at Lander & Rogers by telephone (+61 2 8020 7700) or email (email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
(3) An earlier version of this article was first published in HRM Online on March 20 2018.
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