HR professionals and managers are always aware of the legal obligations of employers to protect the health, safety and wellbeing of their employees. In this environment, when you become aware of an employee complaint, the inclination is to immediately “take action”. However, a recent decision of the Queensland Industrial Relations Commission highlights why it is important to stop and take stock before deciding on the next step in resolving an employee complaint.
East Coast Pipeline Case
The case concerned a small employer, East Coast Pipeline Pty Ltd (East Coast), who had received two separate complaints against one respondent employee, Anderson. Anderson had been with the company for approximately four years and by all accounts was a good worker with a clean record. Anderson had a long term depressive illness which had been managed through medication.
The first complaint, made by a female colleague, Robinson, concerned allegations of sexual harassment. The second allegation was one of bullying. Both complainants were colleagues of Anderson, working with him in an East Coast office in Caboolture.
On receiving the verbal complaint, the General Manager, together with the Industrial Relations manager, determined that allegations were serious and that Anderson’s employment may be terminated in the allegations were proven. The manager informed Anderson of the complaints via telephone. During that call, the manager told Anderson that he would be commencing an investigation of the matter and would provide him with an “investigation protocol” and a confidentiality agreement. Anderson was also advised, via email the next day, that he was required to attend a meeting the following day to obtain more information about the allegations and to respond to them. Anderson went to the doctor the next morning and then attended the meeting before going home. He subsequently received an email saying that he had been suspended on full pay pending conclusion of the investigation.
The Commission was required to decide whether Anderson had suffered a psychological injury connected with his employment and was therefore entitled to compensation.
Was East Coast’s investigation “reasonable management action taken in a reasonable way”?
Having found that the respondent employee had suffered a personal injury connected with his employment, the Commission examined whether the employer’s actions amounted to ‘reasonable management action taken in a reasonable way’.
Importantly the Commission said that this was “an evaluation of how management responded to the complaints made against Anderson and whether the decisions made, the processes and procedures put in place, were reasonable having regard to the facts and circumstances prevailing and known at the time.”
Should East Coast have considered Anderson’s illness when deciding how to proceed with the complaints?
The Commission said yes. The evidence was that the General Manager was aware of Anderson’s health issues and “should not have lost sight of Anderson’s frailties when he deliberated on how to respond to Robinson’s complaint”.
Was a formal investigation necessary?
The Commission analysed the information known to the General Manager at the time the complaint was lodged and disagreed with his assessment that the alleged conduct amounted to serious misconduct – “an objective analysis of the facts and circumstances known at that point in time would clearly have indicated that termination of employment was very unlikely and that some other response would be most likely deployed”. In those circumstances, the Commission said that the process was not proportionate to the offences alleged – it was too formal. Further, in choosing a formal investigation, East Coast did not account for Anderson’s psychological frailties.
The process that East Coast chose also prevented the complaint being resolved in a way that would allow the parties to continue to work together. This was inconsistent with the East Coast sexual harassment policy which outlined a less formal approach which should “centre on the resolution of the issue, without deciding fault”.
Importantly the Commission said that this was “an evaluation of how management responded to the complaints made against Anderson and whether the decisions made, the processes and procedures put in place, were reasonable having regard to the facts and circumstances prevailing and known at the time.”
The Commission also identified several flaws in the investigation process which would have “exacerbated’ Anderson’s anxiety, including notifying Anderson of the allegations over the phone. In all of the circumstances, the Commission upheld the Regulator’s decision that Anderson was entitled to compensation.
Lesson learned – the importance of triaging complaints
In many ways this case turns on its own facts – the context of the matter was a WorkCover claim and is necessarily focussed on the impact of the employer’s actions on the Respondent. In terms of lessons to be learned in a general sense, the case highlights the need for HR practitioners and managers to appropriately triage complaints before deciding how best to resolve the employee complaints. This will involve gathering and evaluating all of the available information before determining the most appropriate way to proceed to resolution.
Factors to consider include:
- Understanding the particular details of the complaint;
- Examining and following relevant employer policies;
- Time and budget constraints; and
- Analysing the seriousness of the alleged misconduct and the potential consequences for the respondent if the allegations are proven.
Considering these factors will allow you to assess the potential risks to the organisation and guide you towards the most appropriate manner in which to resolve the complaint.
Although the Commission was critical of the employer for choosing a formal investigation in the circumstances of this case, conducting fair and reliable investigations is sometimes a necessity. That said, there are alternatives if the circumstances allow:
- Preliminary investigations (a less formal exploration of facts);
- A workplace review (if you suspect there are underlying workplace issues);
- Mediation; or
- Employee training.
In the event that an investigation is warranted, you can determine the scale and formality of that process depending on the nature of the allegations, their seriousness and the consequences for the employee should the allegations be proven.
As is evident in this case, in terms of terms of how you carry out whatever resolution tool you choose, you should be sensitive to the particular relevant circumstances of any parties (for example a party’s psychological issues).
It can seem a daunting process to weigh all of the circumstances of a particular complaint. However, taking stock before commencing a resolution process can help you ensure that you are effectively and efficiently protecting the health and safety of your employees and managing organisational risk.
About Brooke Hall
Brooke has significant experience in the workplace relations area, having previously worked as a lawyer for 10 years at the now Fair Work Ombudsman. Brooke brings strong communication, investigative and analytical skills in the area of dispute resolution to Worklogic. Her strong client service focus and pragmatic approach ensures clients receive practical solutions to a range of workplace issues.
Worklogic has extensive experience in triaging and resolving workplace complaints. If you would like advice on a workplace complaint, you can contact Brooke for an obligation-free discussion via email or by calling (03) 9981 6500.
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