Time and again many employers put their heads in the sand when it comes to investigating allegations of misconduct and they are often paying a costly price.
In this case of alleged workplace bullying[1], the employer’s failure to initiate an investigation on more than one occasion left an ex-employee with a debilitating psychiatric illness.
This employer’s manifestly inadequate response to two complaints of bullying once again demonstrates the importance of initiating and undertaking workplace investigations.
Background
An employee held in high esteem by her employer and co-workers was subjected to a highly volatile and unprovoked incident of workplace bullying at the hands of her supervisor.
Employed as a security guard at a Queensland university, the employee suffered a torrent of misplaced and factually incorrect verbal abuse when approached aggressively by the supervisor at a time when she was simply responding to a routine call during a campus black-out.
When attempting to correct her supervisor’s assumptions, the employee was ignored. Instead, the supervisor ordered her to get on with her work, and stormed off.
Three days later, the employee approached the HR department to discuss the matter but was informed that HR ‘declined to investigate the grievance’.
Somehow learning of the complaint, the supervisor went on the counterattack and wrote to the Vice-Chancellor with unfounded allegations of ‘unsatisfactory performance’ and a ‘lack of judgment’ against the alleged bullying victim.
After not being able to return to the university following the bullying incident and subsequent allegations, the employee agreed to a severance package and resigned, however she did not withdraw her complaint, or indicate that she agreed to its discontinuance.
The employee subsequently engaged lawyers and commenced court proceedings against the employer for her resulting psychiatric illness.
The Decision
At the initial trial hearing the employee was unsuccessful, however on appeal the Court awarded her $364,008.64 in damages (plus costs).
The Court of Appeal’s decision contains a number of significant warnings for employers who want to avoid the same costly mistakes.
The Court heard that the supervisor had faced similar allegations in the 6 months leading up to this incident. However this earlier allegation resulted in a ‘low-key’ response from the employer.
With respect to the most recent complaint, rather than conducting an investigation “that determined the facts”, the court considered the holding of an informal discussion between the employer and the supervisor not to be a reasonable response to the complaint.
The Court found that the resulting ‘general advice’ provided to the supervisor fell short of adequate disciplinary action and instead exacerbated the situation.
Tellingly, the court observed that had an appropriate course of action been taken in the first instance of workplace bullying, the second incident would not have occurred.
Lessons for Employers
For this employer a previous failure to adequately investigate an allegation of workplace bullying came back to haunt it.
As we have highlighted in a previous article – properly assessing an allegation of workplace bullying is a crucial first step. However, once it is apparent that workplace bullying may have occurred it is not open to an employer to turn a blind eye or attempt to downplay the matter.
The courts are clear that employers must investigate all allegations of workplace misconduct – including workplace bullying.
Witnesses must be approached and all relevant parties must be required to make statements.
Proper corrective action would have resulted in a safer workplace for this employer’s employees and helped it to avoid hundreds of thousands of dollars in compensation.
With new workplace bullying laws commencing on 1 January 2014, time is ticking for employers to ensure that they know how to:
- properly assess a workplace bullying complaint and
- conduct a proper workplace investigation.
[1] Wolters v The University of the Sunshine Coast [2013] QCA 228
