Vexatious bullying & key steps to manage it.

Vexatious bullying & key steps to manage it.

Workplace complaints, claims and issues are on the rise post-pandemic. Receiving a bullying complaint from an employee and working out what to do next is stressful enough... let alone when the bullying complaint is made vexatiously and without a legitimate reason?

When you have an employee who makes a vexatious bullying complaint, you will need to take steps in addition to your usual complaint’s investigation process. Failure to follow your organisation’s procedure, afford procedural fairness to an employee and to satisfy all other applicable obligations in this instance and can prove risky for the business.

Identifying a vexatious complaint

It is important to identify when a complaint is vexatious; though this is not always immediately obvious. A vexatious complaint is one that is falsely made, in bad faith and without evidence. This is different to when a worker makes a complaint and genuinely believes they have been treated poorly; despite a lack of evidence to support the claim.

Regardless of any preconceptions about a complaint, each complaint received needs to be treated seriously and a proper investigation conducted in accordance with employer obligations and workplace policy.

If this is not done and a complaint turns out to be true or partially true, this raises the possibility of the issue escalating and could be seen as a failure on your part to meet the business’ obligations and constitute a breach of the workplace policy.

Investigating a Vexatious Complaint

As an employer, you should engage in a procedurally fair investigation process in response to all bullying complaints; regardless of any assumptions about the complaint being vexatious. The first step as part of the initial conversation is to advise the worker that if the complaint turns out to be baseless or vexatious, they may face disciplinary action up to and including termination of employment.

If the worker withdraws their complaint after being advised of this, the business should monitor the situation and pay close attention to ensure the complainant is not singled out by management or by co-workers.

Considerations when investigating a bullying complaint include those outlined below:

  • Does the behaviour complained about constitutes bullying – if the complaint is vexatious, it is less likely the conduct will amount to bullying. It may be the person making the complaint is actually the person who is doing the bullying. Appropriate disciplinary responses to this are explored below.
  • Is there a risk of ongoing harm which requires immediate measures – e.g. the number of parties involved, the seriousness of allegations, the current structure of the workplace and potentially problematic current working arrangements.
  • Are there any other relevant issues that require further investigation and/or understanding – e.g. any misconduct by the person making the complaint, which they might be trying to cover up with the false bullying complaint.
  • Is it appropriate to manage the issue internally or should it be referred to an external third party – most vexatious bullying complaints can be managed internally unless they are prolonged or very serious; and
  • Should the report progress to a formal investigation or managed informally – this must be determined at the business’ discretion according to the nature and/or seriousness of the complaint made. 

Responding to the findings of a Vexatious Complaint

If any of the allegations made are proven during the investigation, the response should be:

  • reasonable in relation to all the circumstances;
  • proportionate to the problem identified; and,
  • in keeping with the employer’s policies – e.g. bullying policy and dispute resolution policy.

For example, if a complaint alleged multiple counts of bullying but the investigation only uncovered one slightly inappropriate email, this might warrant a verbal warning to that employee regarding their email etiquette. However, it would not be grounds for termination. An unreasonable and disproportionate response such as this would create a significant risk for the business with the likelihood the employee successfully claiming unfair dismissal.

Alternatively, investigation into a vexatious complaint may expose that the complaint was vexatious or highlight a new, separate issue. In respect of the latter, for example, the accused person may be found to have said something constituting a potential breach of their confidentiality obligations rather than something which constituted bullying. In this instance or where the original complaint is found to have been made vexatiously, the business would need to instigate an additional, separate process to investigate this new issue.

Although the bulk of the investigation may have already been carried out to reach this point, the business will need to engage in further consultation with the relevant employee in accordance with their Fair Work obligations. This will involve:

  1. inviting the employee to attend a meeting;
  2. giving the employee the opportunity to bring a support person to that meeting;
  3. providing the employee with a written statement of findings at that meeting;
  4. giving the employee a chance to respond to those findings;
  5. considering the employee’s response to the findings; and
  6. determining and carrying out an appropriate response.

When providing a written statement of findings to an employee considered to have vexatiously made a bullying complaint, the statement will need to set out the sequence of events to date, including the date the complaint was made, the nature of the complaint, the process undertaken to investigate the complaint, the findings and the reasons for those findings. Crucially, it will need to state that evidence was found to suggest that the bullying complaint was made vexatiously, and that it was taken seriously by the employer.

In these circumstances, the business will need to be mindful that this process may illicit a negative reaction by the employee – e.g. anger or frustration. It is important to remember that, even though the employee has been found to be in the wrong, the business still has an obligation to take all reasonably practicable steps to prevent the risk of harm to the health and safety of that employee.

This could be referral to a counselling or psychological support service, linking the employee to an Employee Assistance Program (EAP), or adjusting the employee’s work roster to minimise interactions with certain other people at work.

Although it will ultimately be the employee’s decision if they take up any options for support, by having an honest conversation about the kind of support the employee may need, the business will be fulfilling its obligations and minimising the risk of escalation of related issues within the workplace.

Key learnings

A vexatious bullying complaint will often carry greater complexity and risk for a business compared with an ordinary bullying complaint. In response to this, you must still uphold the business’ WHS obligations, follow applicable workplace policies and afford the relevant employee procedural fairness.

Mismanagement of a vexatious complaint can drastically escalate a problem and have wider, negative workplace implications. Most importantly, it can deemed a failure by the business to meet its obligations and consequential liabilities may apply.

If you require support, advice or managerial training with regards to employee complaints or claims in the workplace, Akyra can assist you. Contact us on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.

If you require advice or assistance with any people management circumstances or managing your workforce, contact Akyra on 07 3204 8830, for an obligation-free conversation or to discuss any queries you may have.

Contact us now to book a time to discuss your areas of potential concern and we will then provide a way forward where it might be needed.

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Disclaimer – Reliance on Content

The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.

 

Source: www.colemangreig.com.au, June 2021

 

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