Australia: Procedural fairness in dealing with allegations of bullying

An allegation of bullying may be, and usually is, an indicator of actual bullying. However, whether the result of a genuine misunderstanding, an unreasonable overreaction or a deliberate concoction for some ulterior purpose, an allegation may not be an indicator of bullying at all. Indeed, the making of the allegation may be an act of bullying in itself.

An employer must make a number of quick decisions about how to respond to such a complaint. When an allegation is made, one of the first questions is usually, whether the status quo in terms of work can continue while the complaint is being considered, or whether the complaint is of a nature that requires steps to be taken addressing issues of contact and proximity as between the alleged bully and the complainant.

The next question is likely to concern the issue of investigation. If an investigation of any consequence is to be undertaken, can the alleged bully remain at work at all, or without changes being made to his or her role? If the person cannot stay at work, then they should be suspended on full pay during that period. It should be made clear that this is not, in any way, an indicator of guilt.

Given that in the majority of cases, an investigation will be required, conducting an investigation is not usually a task that employers have training or experience in, especially if they do not have a dedicated human resources department. Not only is the investigation process difficult and time consuming in itself, but it requires very careful management of the individuals involved to minimise their personal distress and disruption to the business.

Once committed to the path of investigation of the complaint, procedural fairness is a vitally important element. If there is a failure of procedural fairness:

  • and the process ultimately leads to an employee's dismissal (either the bully or the victim or someone else altogether), it may give support to an unfair dismissal claim.
  • and an employee alleges that they have been treated worse because of a discriminatory reason or because they have exercised (or failed to exercise) a workplace right, it will be more difficult to convince the Court of the real reason why the employee was treated the way they were.
  • in some circumstances, distress caused by the investigation may worsen the condition of the complaining party (or create a mental health problem in another) and in an extreme case could itself become the subject of an allegation of further damage caused by negligence for which the employer is responsible. Investigations, where necessary, should not be hamstrung as a result of this concern, but should be conducted with such sensitivities in mind.

Procedural fairness includes:

  • clearly informing the alleged wrongdoer of the allegations made against them in a way that allows them to properly respond to them. This does not necessarily mean giving them all the evidence (and the employer may not have all the evidence at that stage), but it does require enough information to be given to allow a proper response.
  • giving the alleged wrongdoer sufficient time and opportunity to consider and respond to the allegations. This will usually be a relatively short period (say, a few days), but this will depend heavily on the nature of the allegations – for example, if the allegations stretched over a long period of time, it may be reasonable for the alleged wrongdoer to be allowed several weeks to go back over their records in order to respond to the allegations.
  • conducting a proper investigation into the allegations – ie. relying on actual evidence rather than hearsay, assumptions, guesses or the like.
  • forming a reasonable view of the facts once all the information has been obtained, but not before.

The difficulty lies in the detail. The specific obligations of procedural fairness will depend on the nature of the allegations, the person who has made them and the person who they are made against. More serious allegations will usually require greater formality, possibly involving a third-party investigator, especially if the allegations involve senior management. On the other hand, it would likely cause more harm than good to instigate a formal third-party investigation into an allegation which, even in the eyes of the alleged victim, is relatively minor.

If the employer decides to appoint a third party to investigate the allegations, this adds a level of independence to the process which, generally speaking, assists in establishing procedural fairness. It does however bring another level of complexity to the process.

An important early decision that must be made is who to appoint. There is no formal training required to conduct investigations. The most common appointments are human resources consultants, private investigators and solicitors. Solicitors are usually going to be the more expensive option but are also likely to have a better understanding of the potential claims that might arise from a particular allegation as well as the laws of evidence. Generally speaking, a solicitor would only be appointed for the more serious allegations. If a private investigator or consultant is being engaged, there can be advantages to engaging solicitors to instruct them to conduct the investigation, not least being to establish a clearer case for legal professional privilege in relation to the results of the investigation.

There should also be a clear understanding reached, before any investigation begins, as to the process that is to be undertaken and how the results are to be reported. For example, the employer should consider (and discuss with the investigator) the following:

  • Will the investigator simply be taking statements and gathering evidence, or
  • will they be forming a view as to what actually occurred?
  • Will the evidence provided by the witnesses be provided to the alleged bully?
  • Will a copy of the report be provided to the alleged bully if the allegations are not proved?
  • Will a copy of the report be provided to the alleged bully if the allegations are proved – and particularly if the bully is going to be disciplined or dismissed as a result? Note that the employer may be obliged to provide a copy of such a report in any legal proceedings that result from a dismissal.

Of course, there is no advantage to appointing a third party if they are not, in fact, independent. If the third party has a pre-existing relationship with the employer, the witnesses or the alleged bully, the benefits of independence are likely to be lost. Similarly, it is important to ensure that the investigator complies with the obligations of procedural fairness – any failings in this respect will usually be treated as failings of the employer.

Allegations of bullying are serious and must be treated as such, but this does not override the need for procedural fairness in the course of investigating those allegations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.