Receiving a bullying complaint from an employee and working out what to do next can be stressful for an employer. Then, to add another layer of complexity - what happens if the bullying complaint is made vexatiously and without a legitimate reason?
If an employee makes a vexatious complaint about workplace bullying, steps will need to be taken to manage the unique risk of the situation. These steps must be taken in addition to the employer's ordinary complaints investigation process, corresponding with fulfilment of all ordinary employer obligations applicable to an employee. Failure to follow the correct procedure, afford procedural fairness to an employee and to satisfy all other applicable obligations in this instance and can otherwise prove risky for an employer.
Identifying a Vexatious complaint
It is important to be able to identify when a complaint is vexatious, though this is not always immediately obvious. A vexatious complaint is one that is falsely made, in bad faith and without evidence. Notably, this is different to when a person makes a complaint and genuinely believes they have been treated poorly despite a lack of evidence to support the claim.
Regardless of any preconceptions about a complaint, each complaint received needs to be treated seriously and a proper investigation conducted in accordance with employer obligations and workplace policy. If this is not done and a complaint turns out to be true or partially true, this may cause any existing issues to escalate, amount to an employer's failure to meet their workplace health and safety (WHS) obligations and constitute a breach of the workplace policy.
For more information as to the specifics of employer WHS obligations, please read our prior article Workplace Bullying - How to prevent it and what to do when it happens.
Investigating a Vexatious Complaint
Employers should engage in a procedurally fair investigation process in response to all bullying complaints regardless of any assumptions about the complaint being vexatious. The employer should commence by advising the person making the complaint that if it turns out to be baseless or vexatious, they may face disciplinary action up to and including termination of employment.
If somebody withdraws their complaint after being advised of this, this must not be used as a reason to single that person out or to punish them. Rather, it should be treated as a sign that there may be some issue in the workplace involving that person, which should be monitored and paid close attention by management to avoid escalation of issues or spread to other colleagues in the workplace.
The various considerations that need to be made in response to a bullying complaint are identified in our previous article, as mentioned above. The following list is drawn from that article and explains considerations specific to a vexatious bullying complaint. These include:
- whether the behaviour complained about constitutes bullying - if the complaint is vexatious, it is less likely that the conduct will amount to bullying. It may be that the person making the complaint is actually the person performing the bullying. Appropriate disciplinary responses to this are explored below;
- whether there is a risk of ongoing harm which requires immediate measures - similar to an ordinary bullying complaint, this requires consideration of the number of parties involved, the seriousness of allegations, the current structure of the workplace and potentially problematic current working arrangements;
- whether there are any other relevant issues that require further investigation and/or understanding - this includes, for example, any misconduct by the person making the complaint, which they might have tried to cover up with the false bullying complaint.
- whether it is appropriate to manage the issue internally or refer to an external third party - most vexatious bullying complaints will be manageable internally unless they are prolonged or very serious; and
- whether the report should be progressed to a formal investigation or managed informally - this must be determined by the employer's discretion according to the nature of the complaint made.
Responding to the findings of a Vexatious Complaint
If any of the allegations made are proven during the investigation, the response should be:
- reasonable in all the circumstances;
- proportionate to the problem identified; and,
- in keeping with the employer's policies, such as the anti-bullying policy and dispute resolution policy.
For example, if a complaint alleged multiple counts of bullying but the investigation only uncovered one slightly inappropriate email, this might warrant a verbal warning to that employee regarding their email etiquette. However, it would not be grounds for termination. An unreasonable and disproportionate response such as this would create a significant risk for the employer that the employee might successfully claim unfair dismissal.
Alternatively, investigation into a vexatious complaint may expose that the complaint was vexatious or highlight a new, separate issue. In respect of the latter, for example, the accused person may be found to have said something constituting a potential breach of their confidentiality obligations rather than something which constituted bullying. In this instance or where the original complaint is found to have been made vexatiously, an employer needs to instigate an additional, separate process to investigate this new issue.
Although the bulk of the investigation may have already been carried out to reach this point, an employer will need to engage in further consultation with the relevant employee in accordance with their Fair Work obligations. This will involve:
- Inviting the employee to attend a meeting;
- Giving the employee the opportunity to bring a support person to that meeting;
- Providing the employee with a written statement of findings at that meeting;
- Giving the employee a chance to respond to those findings;
- Considering the employee's response to the findings; and
- Determining and carrying out an appropriate response.
When providing a written statement of findings to an employee considered to have vexatiously made a bullying complaint, the statement will need to set out the sequence of events to date, including the date the complaint was made, the nature of the complaint, the process undertaken to investigate the complaint, the findings and the reasons for those findings. Crucially, it will need to state that evidence was found to suggest that the bullying complaint was made vexatiously, and that it was taken seriously by the employer.
In these circumstances, employers must be mindful that this process may illicit a negative reaction by the employee, such as anger or frustration. It is important to remember that even though the employee has been found to be in the wrong, an employer still has an obligation to take all reasonably practicable steps to prevent the risk of harm to the health and safety of the employee. This may look like providing the employee with a referral to a counselling or psychological support service, linking the employee to an Employee Assistance Program (EAP), or adjusting the employee's work roster to minimise interactions with certain other people at work.
Although it will ultimately be the employee's decision if they take up any options for support, by having an honest conversation about the kind of support the employee may need, an employer will be fulfilling their obligations and minimising the risk of escalation of related issues within the workplace.
A vexatious bullying complaint will often carry greater complexity and risk for an employer compared with an ordinary bullying complaint. In response to this, an employer must still uphold their WHS obligations, follow applicable workplace policies and afford the relevant employee procedural fairness. Mismanagement of a vexatious complaint can drastically escalate a problem and have wider, negative workplace implications. Most importantly, it can amount to that employer's failure to meet its obligations, for which liability may ensue.
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.