For more than a decade, Worklogic has had the privilege of working with a broad range of organisations and workplaces across both the public and private sectors. As well as fact finding (workplace investigations and review of critical incidents), our work has also focused on prevention and improvement, as we work with clients to improve their policies, compliance programs and culture.
During this time, we’ve seen the law evolve and how cases have driven change in what is considered to be best practice for managers and more broadly, organisations. This evolution has informed our work and led to changes in management practices, the modification or re-writing of policies and procedures, and even in fact finding, as community expectations and legal thresholds and definitions change and evolve.
When to investigate and what is ‘reasonable’ management action?
One issue that has come before the Fair Work Commission (“the Commission”) in recent times is this: in what circumstances should an organisation investigate a complaint or grievance?
Or, put another way, what do recent cases decided by the Commission tell us about what constitutes ‘best practice’ for organisations when deciding whether to investigate or not?
Furthermore, in this context, what does the Commission consider to be reasonable and unreasonable management action?
There are three recent cases which explore these issues in some detail and provide some guidance about when an organisation should investigate and what is considered to be reasonable management action.
Case 1: Watts v Ramsay Health Care
In the recent case of Watts v Ramsay Health Care [2018] FWC 1455, the applicant, Ms Watts, had brought to the attention of her direct manager and human resources manager, allegations of bullying and harassment against several of her fellow workers.
Noting that Ms Watts had raised these concerns with her managers, including in the context of an investigation into her own performance and behaviour, the organisation (through its employees) determined not to commence any kind of enquiry or investigation into Ms Watts’ allegations, citing a lack of specific information and/or evidence about the allegations for their decision.
In granting Ms Watts’ application, the Commission accepted that the organisation’s managers had behaved “unreasonably” towards her and that their decision not to investigate her bullying allegations was not ‘reasonable management action’. The Commission determined that the applicant had been understandably reticent to name the offenders, but had nonetheless provided her managers with sufficient information and that those managers had ‘imposed their own requirements on how Ms Watts must complain to them about alleged bullying before they would commence an investigation.’
Case 2: Pilbrow
In the very recent case of Ms Anne Pilbrow [2020] FWC 2458, the applicant alleged that her direct manager had subjected her to bullying and that human resources staff had failed to respond adequately to her complaints.
The Commission held that while her manager’s communication style was not ideal and performance concerns were “ventilated in a suboptimal way”, the manager’s conduct was found to be reasonable management action and did not amount to bullying.
The Commissioner was critical of the human resources department however, noting that the conduct of its staff had “potentially reached the required level of unreasonableness”. Their failures included:
- A refusal to assign light duties to her consistent with her medical requirements;
- A lack of consultation about allocation of duties at an alternative work location, including being given 30 minutes notice to attend the new workplace;
- Poor responses to her concerns about changes to her work location and duties; and
- Limited training opportunities.
It was only the fact that a bullying order can only be made against “an individual or group of individuals”, not an organisation’s human resources department, that saved the human resources department in this case.
Case 3: Muhinyuza vs Teys Australia
In July 2020 the Commission handed down its decision in the case of Mr Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd [2020] FWC 2996. In this case, the applicant Mr Muhinyuza, argued that he had experienced bullying, harassment and discrimination throughout his employment by his supervisor and a co-worker, and that he had raised these complaints with the human resources officer and his shift manager who did not take any action to protect him from that behaviour.
As a result of this inaction, Mr Muhinyuza stated that he no longer felt safe at his workplace and his mental health was severely affected to the extent that he felt that he had no other option but to resign his employment.
Furthermore, he argued that the failure of his employer to deal with his complaints forced his resignation and he therefore sought a remedy for what he argued was an unfair dismissal. The employer denied this, stating that Mr Muhinyuza had resigned, therefore he could not have been unfairly dismissed.
In its decision, the Commission noted that the evidence established the failure of the employer to “appropriately investigate and deal with serious allegations made by the Applicant about his treatment by a supervisor and a co-worker”.
The Commission also found that their inaction “had the probable result of ending the Applicant’s employment, and that the Applicant had no effective or real choice but to resign.”
In the Commission’s view, the applicant had “taken all reasonable steps to raise his complaint and to escalate it to managers” on site but it had not been dealt with reasonably. The Commission also commented that:
“this was more than a case of an employee leaving an unpleasant work environment. The Applicant has limited English language skills which made reporting conduct he had been subjected to, difficult. The complaints procedure was of little use to the Applicant. The Applicant was suffering from depression at the time and there is evidence that this was caused to some extent by the manner in which he had been treated at work. The employer failed to deal reasonably with the complaint and the response of Mr Herbst and Ms Poole was manifestly inadequate in light of the seriousness of the complaint.”
The Commission also noted that management had not taken reasonable steps which could have avoided the applicant’s resignation. They noted that he had sought a two-week period of leave to deal with health issues in close proximity to a distressing incident at work and was granted one week. When the applicant resigned citing health issues, he was not offered further leave or information about other support or assistance that Teys claimed to make available to its employees.
The Commission stated, “When considered on an objective basis, the Applicant’s assertions about the unreasonable manner in which he was treated were valid, and he had no option but to resign because of that treatment.”
Ultimately, the Commission made a finding that the failure of Teys’ human resources officer and the shift manager to deal with Mr Muhinyuza’s complaint was conduct by omission that had the probable result that Mr Muhinyuza would resign. Accordingly, he was entitled to have the fairness of his dismissal considered at a future hearing.
7 Key Learnings for Employers
So what do these cases tell us about whether an investigation is necessary and what constitutes reasonable management action?
- A complaint raised by an employee, even in the context of an investigation into their performance or behaviour, should be taken seriously and acted upon. Failure to do so may constitute unreasonable management action.
- It is not necessary for the aggrieved employee to provide all the relevant details of their complaint for the complaint to be acted upon. It is enough that an aggrieved employee provides ‘sufficient’ information. An insistence on receiving all the relevant details before action is taken may constitute unreasonable management action.
- Managers should avoid being unnecessarily prescriptive about the format of the complaint as it is not necessary for the aggrieved employee to provide their complaint in a prescribed manner or format before an investigation is begun. An insistence on the complaint being made in the prescribed format or manner before action is taken may constitute unreasonable management action.
- Managers aren’t expected to act perfectly. Even if their communication style is ‘not ideal’ and/or performance concerns are “ventilated in a suboptimal way”, a manager’s conduct may still constitute reasonable management action.
- Examples of unreasonable management action may include the following: a failure to assign light duties consistent with an employee’s medical requirements; a failure to consult about the allocation of duties at an alternative work location at short notice; a failure to respond appropriately to concerns about changes to an employee’s work location and duties; and a failure to provide appropriate or reasonable training opportunities.
- If an employee takes all reasonable steps to make a complaint, the employer must respond to the complaint appropriately and should carefully document everything, including conversations, interviews, details of the complaint, the employer’s findings or response and so on. If an employer fails to act, and their inaction or failure to appropriately respond to and investigate that complaint leads to an employee believing that they have no other choice but to resign, there may be grounds for an employee to argue that they have been unfairly dismissed.
- If an employee goes on sick leave following the making of a complaint or a distressing incident at work, and their mental health appears to be affected, the employer should take reasonable steps to support the employee. This may include offering more sick leave or other leave and referrals to an employee assistance program or other support.
If you would like to know more about how to conduct a fair and effective workplace investigation, then you might like to read the third edition of Worklogic’s definitive guide to workplace investigations, “Workplace Investigations“, which will be released this month. To order your copy, click here.
Ask us Anything about Workplace Investigations
Free webinar | 24 September, 12.30pm – 1.15 pm
To celebrate the 3rd edition of Worklogic’s Workplace Investigations book, join Worklogic’s Sydney crew in an open forum to discuss anything you want to know about conducting a workplace investigation.
Jason Clark, Melanie Roberts and Marc Dib draw on their decades of experience conducting workplace investigations into allegations of every kind of workplace misconduct in all types of settings to answer your burning questions.
We imagine we will cover topics such as:
- what are the most common mistakes you see made when conducting workplace investigations?
- how do you make sure your investigation is fair to all parties?
- when should we call in an external investigator?
- should we conduct an investigation during lockdown or wait until restrictions are lifted?
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About Vanessa Cullen
Vanessa Cullen’s sound management, legal and interpersonal skills make her a highly effective workplace consultant. Vanessa has led many workplace reviews, team-building projects, investigations, process review and policy development projects. As an investigator of complaints and critical incidents, she provides rigorous, fair and reliable reports for clients.
