by: Adam Fairhurst

Investigating bullying, harassment and discrimination complaints can present a number of complexities and challenges. One of the key complexities of investigating bullying and harassment complaints, as with all investigations, is the need to gather, test and analyse evidence in a discrete and confidential manner.  This article looks at some of the complexities and challenges conducting these investigations and some of the key considerations to keep in mind.

Complexities and challenges

When engaged to undertake an investigation, our work involves interviewing witnesses, reviewing emails, text messages and other electronic communications, and collecting documentation that may be relevant to the complaint.

Evidence may be spread out across multiple locations, involving a large number of witnesses. There will be occasions when the complexity of the complaint is such that witnesses should be interviewed in-person rather than using video interviewing.

Emotions are often heightened in workplace matters which can present a significant challenge in investigating bullying and harassment complaints. These types of complaints often involve deeply personal and emotionally charged issues, which can make it difficult for individuals to speak openly and honestly about what has occurred. Therefore, building a professional rapport with a complainant, witness, and/or the respondent is essential.

Potential for retaliation against the complaining party adds an additional layer of complexity. The fear of retaliation can create fear and reluctance among complainants to come forward with information that may be critical to the investigation where they feel their disclosure may directly impact their wellbeing and/or employment.  Undertaking a risk assessment regarding potential for retaliation and putting measure in place, where appropriate, to minimise the risk of retaliation and potential interference in the investigation process is of utmost importance.

Legal framework

It is critical that the investigation is conducted in a manner that is consistent with applicable legal standards and protects the rights of all parties involved.  The primary laws that govern workplace harassment and discrimination are:

• Fair Work Act 2009
• Age Discrimination Act 2004
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Australian Human Rights Commission Act 1986

These laws provide a framework for addressing and resolving complaints of bullying and harassment in the workplace.

Protecting the complainant

We protect the identity of the complainant as best we can, but ultimately, the person being accused will have a right to see the detail so they can adequately respond as part of procedural fairness requirements. Despite best efforts to protect the identity of the complainant, the respondent may well deduce who the complainant is, therefore it is essential organisations have conducted a psychosocial risk assessment of the complaint and put in place reasonable and necessary steps to protect the discloser. This may include but is not limited to, changing reporting lines, putting relevant parties on special projects to separate individuals and/or suspending a respondent while the investigation is ongoing.

The independence of an investigator (and their perceived independence) can be critical to a successful outcome which is why we are typically engaged by our clients so that there is independence in the investigation process.  It may be appropriate for our clients to engage the services of an independent investigator through their external legal counsel to establish legal professional privilege (LPP). Failure to establish LPP can mean that all files, correspondence etc. can be disclosable if requested as part of an investigation process.

Our goal is to always leave an organisation in a better condition that when we first went in. We ensure procedural fairness by being courteous and respectful to all parties involved in the investigation including the complainant, witnesses and respondents.  This doesn’t mean that the complainant (or respondent) will necessarily get the outcome they hoped for, but the investigative methodology applied will give everyone confidence that the process is sound and defensible. It also doesn’t mean that difficult questions can’t be asked and that the conversation can’t be robust, it means that an interview should be conducted respectfully, regardless of who is being interviewed.

The outcome of a bullying and harassment investigation can have significant consequences for all parties involved, including the complaining party, the accused individual, and the organization as a whole. The outcome of the investigation may impact the careers, reputations, and emotional well-being of individuals, as well as the overall culture and morale of the organization. Therefore it is important that investigating bullying, harassment and discrimination complaints should be completed by those who have the skills and experience relevant to a trauma informed and people-centric approach for all relevant parties involved. It may be obvious that these sensitivities relate to complainants and perhaps witnesses, however these same principles should also apply for respondents. It may be the case that the allegations raised against a respondent are not substantiated, however the accusation, investigation process, and reputation of the respondent may be adversely affected despite a ‘not substantiated’ finding. This is an important consideration for a ‘Person Conducting a Business or Undertaking’ (PCBU), especially in light of the recent amendments to the model WHS laws which stipulates, inter alia:

The WHS Regulations define psychosocial hazard broadly to include any hazard that: arises from, or relates to the design or management of work, a work environment, plant at a workplace or workplace interactions or behaviours, and

• arises from, or relates to the design or management of work, a work environment, plant at a workplace or workplace interactions or behaviours, and
• may cause psychological harm (whether or not it may also cause physical harm).

Being accused of bullying, or discrimination, or perhaps sexual harassment which after a thorough process reveals the facts do not support the allegations, may cause psychological harm to the respondent. It is therefore imperative that respondent care is kept at the forefront of your mind when conducting investigations so as not to inadvertently create psychosocial hazards.

These terms of trauma informed and people centric approach are relatively new, however our experienced practitioners have been considerate of these principles while conducting investigations for many years, which is why our clients trust us to undertake investigations for and on behalf of their business.

Finally, at the end of the investigation a report must be submitted to the relevant decision-maker for consideration. The report will most likely be the only interaction the decision-maker has with the investigation process. It is therefore imperative that the report clearly sets out the findings, the basis upon which those findings have been made, what investigative activities have been undertaken, the relevant evidence identified and analysed, any limitations to the investigative activities, and what evidence has been relied upon when making the findings, so that the decision maker can make decisions and devise appropriate actions with confidence.

CurbyMcLintock also employs a thorough ‘Quality Assurance’ process to identify any potential gaps in evidence and to test the basis upon which findings are made. This ensures our clients and the relevant decisions makers are getting the best product from which to make a decision.

As can be seen, there are a lot of complexities and considerations to bear in mind when investigating bullying and harassment complaints. It can be a minefield for any inexperienced investigator, so it is vitally important that an appropriately qualified and experienced practitioner is responsible for handling and investigating such complaints.

Linkedin – A potential minefield! Key considerations to keep in mind when investigating allegations of workplace bullying, harassment and discrimination.