Every formal complaint of workplace bullying must be taken seriously and investigated thoroughly. An investigation not only reveals the source of a particular interpersonal conflict: it also affirms to other employees that the organisation has a set of core behavioural standards in which there is no place for bullying. For any formal investigative process, the following procedures are recommended...
1 Appoint an investigator.
The investigator of a formal complaint into bullying should be equal in status to, or more senior than, the accused employee. As part of a transparent process, an external investigator might be appointed if the organisation is small, or if internal staff lack appropriate skills, or bias is a concern. The investigator should meet with management to be briefed on the purpose of the investigation.
2 Ensure the investigation is just and ethical.
The underlying principles of procedural fairness must be known and followed by all involved in the investigation. These would embrace:
- The principle of natural justice for the accused. Here the accused is informed in writing of the complaint and by whom; will be allowed to respond by way of explanation; is assured that the investigator is without bias; has access to union representation or other support; and can be confident that procedural fairness is a paramount consideration.
- Complainant support. The complainant and witnesses must be assured that they will not be victimised before, during, or after the investigation.
- A guarantee of confidentiality. The complainant, the accused, witnesses, and senior management must agree that they will engage in no external debate or gossip relating to the issue.
- Standard of proof. Here the contested facts must be proved on 'the balance of probabilities' (rather than, for example in a criminal case, where they must be proved 'beyond all reasonable doubt').
The investigator may also require all parties to sign an interview protocol which affirms statements relating to natural justice, representation, co¬operation and true and accurate disclosure, professional conduct, notetaking and signing off of any written record as true and accurate, and confidentiality demands.
3 Conduct the investigation.
The investigator could consider adopting the following process:
- Do your homework. Become familiar with the background to the issue: Does this incident relate to overt or covert bullying? What is the relationship between the complainant and the accused? Was this a repeated behaviour? Was the matter addressed at the time? Were there witnesses?
- Review any background documentation to determine if the alleged behaviour violates any Anti-Discrimination, Industrial Relations, or Workplace Health and Safety legislation, or any organisational codes of conduct or policies. Check files for any previous warnings issued to the accused.
- Inform all parties about the process. Advise all parties in relation to duration, procedures, natural justice, the need for confidentiality, representation, the accused's entitlement to documentation relating to the case, that all parties must be treated with respect, and that victimisation will not be tolerated.
- Interview the complainant. Compile a summary of the complaint and evidence which results from such questions as: Who was involved? What was specifically done or said? Time, place and witnesses? Previous incidents, if any? How did the incident arise? Contributing factors? Nature of injuries? Was the accused told to stop? What outcome is the complainant hoping for?
The complainant should sign this summary as a true and accurate record.
4 Prepare and submit a report.
- Interview the accused. Ensure the accused is provided with a summary of the complaint and has time to consider it. Conduct the interview, recording the accused’s responses on each of the evidentiary points. The accused must also sign the summary as accurate.
- Interview any witnesses. Inform both the complainant and the accused of those to be interviewed. Seek direct observations of what each witness saw or heard. Do not seek opinions, interpretations or impressions.
- Weigh up the evidence. Having considered the background to the case, and the statements of the complainant, the accused and the witnesses, recommendations can be compiled. Where there is disagreement over what occurred, or there are no witnesses and no way of verifying the information offered, substantiating the complaint is often difficult. Not substantiating a complaint does not mean that no recommendations can be made relating to the need for a reconsideration of existing workplace anti-bullying policies and strategies.
The investigator, having prepared a report, submits it to the person responsible for implementing the recommendations. It would include:
- A list of claims and, based on the evidence and statements, whether the claims were substantiated or not.
- Recommendations and reasons for any proposed disciplinary actions.
- Recommendations and reasons for changes to policies, procedures or control measures.
- An estimate of costs incurred as a result of the affair and investigation.
Once acted upon, the report itself should be kept securely, but not in the accused's personnel files.
5 Anticipate the outcomes.
Letters outlining the findings of the investigation, the action taken, and the reasons for the decisions made must be forwarded to the complainant and the accused prior to any follow up actions being implemented…
Consider these three points;
Here’s an idea
- The time, expense, and stress of formal investigations can be avoided if conciliation and mediation form part of your early strategy.
- When crisis point is reached - and a formal complaint is often a good indicator of this; the complainant is often afraid to work with or face the bully. You may need to separate the pair from each other's influence, interaction, even eye contact, until the formal investigation concludes and approp¬riate action is taken.
- Accused bullies should be treated justly, and not be assumed to be guilty unless and until the case is proven.
As part of your anti-bullying policy implementation training, your employees should be encouraged to consider the following before making a complaint..
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- Is the behaviour I am concerned about 'bullying', 'less favourable treatment' and 'unreasonable and inappropriate'?
- Has the behaviour I am concerned about been repeated?
- Have I informed the other person that the behaviour is unacceptable and must stop?
- Were there witnesses to the behaviour?
- Have I kept a diary about the behaviour including times, places and names of witnesses?
- What are the possible consequences of making a complaint?
- What do I want to achieve from making the complaint?
- What are the possible consequences of not making a complaint?
- How will I cope with the bullying if I decide not to make a complaint?
- Have I discussed this situation and options?
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This document does not constitute human resource or legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should contact the HR Help Desk or seek professional advice before acting or relying on any of the content. © Wentworth Advantage Pty Ltd 2017