5th June, 2021
Workplace bullying is serious and all allegations should be treated as such, but what do you do when employees simply make up allegations to avoid their own dismissal?
It’s a scenario increasingly playing out in Australian workplaces, according to Hall & Wilcox partner Fay Calderone.
She told The Pulse that she’s seeing an increase in workers starting to see that the writing is on the wall due to their own performance, and then thinking that by bringing a bullying complaint they can stall the dismissal process.
“By doing that the employee thinks that they’re making themselves Teflon-coated or protecting themselves from that process continuing,” said Calderone.
The General Protection provision in the Fair Work Act says that an employee can’t be dismissed for filing a bullying complaint – and rightly so.
Workplace bullying needs to be discussed and called out where it occurs, and automatically assuming each complaint is made up is counter-productive.
But some employees are using that provision to stop employers from progressing with a counselling or discipline procedure that may result in dismissal. Here’s how it plays out:
“If the employer then proceeds with the dismissal, as it always intended to do, the employee can say ‘This is happening because I made a complaint’,” said Calderone.
“That complaint, under the law, doesn’t need to be the sole or dominant reason for the dismissal in order for the employee to successfully bring a general protections claim. It just needs to be seen as a substantial and operative factor in the decision making – it can be the straw that broke the camel’s back so to speak.”
A false accusation or vexatious complaint is one that’s not made in good faith or based on evidence.
In the case of one made in the context of the workplace, it may be an accusation or complaint made to frustrate another process or deflect responsibility for something else from the accuser.
So how do you protect yourself and your business from vexatious workplace bullying claims?
Treat each one seriously.
Calderone said in some cases, it was so obvious an employee was making up a bullying claim that the employer didn’t investigate it in the best way.
“It’s understandable when a claim seems ludicrous that you don’t go through all the trouble of doing an investigation and documenting evidence, but if you don’t do that it gives credence to a claim,” she said.
“The employee could turn around and say, ‘They didn’t even investigate the claim and I was dismissed – how is that fair?’”
It’s important all claims are investigated and documented, no matter how ludicrous or vexatious they seem, by an impartial party.
“The first thing to note is that all matters should be investigated impartially – meaning nobody named in the complaint should be involved in running the investigation. For small businesses, that may mean bringing in somebody from the outside to investigate,” said Calderone.
Once you’re satisfied an investigation is being carried out by an impartial party, caution all parties and witness that any information they may receive during an investigation is confidential in nature, and should not be communicated outside the company (except to legal advisors, support people, and medical professionals where applicable).
During the investigation, it’s important to keep notes of all conversations.
Start to seek details of the allegations, taking statements from the complainant, the alleged perpetrator, and witnesses.
Also gather a list of source material to be relied upon, such as emails.
Start to consider what policies, procedures, or codes of conduct the company may have in place, and also consider how workplace bullying is dealt with under work health and safety legislation – this will help you decide whether the claim is valid or not.
Once you’ve collected statements from all parties in the investigation and gathered material, it’s time to produce documentation on the findings of the investigation – and how the conclusion of the investigation was arrived at.
While the investigation can in some circumstances be undertaken internally and subsequent finding and determination can be headed up by a business owner, it’s always a good idea to get the expertise of a workplace lawyer – especially if it’s serious or relates to the business owner.
After all, it can be difficult for somebody in the organisation to investigate and make findings about somebody who pays their salary.
A finding that a complaint has been made falsely can result in summary termination for misconduct, so if you’re able to point to the impartiality of the investigation and subsequent finding – you’ll have a better chance at the Fair Work Commission if the termination is challenged.