Over the past decade, there has been growing acceptance of the importance of Corporate Social Responsibility. Workplace Bullying is often defined as a repeated unreasonable behavior which creates a risk to health and safety.

What is Workplace Bullying?

Bullying behavior in the workplace may include:

  • aggressive, threatening or intimidating conduct
  • excluding someone from work-related events
  • unreasonable work demands
  • belittling or humiliating comments
  • pressuring someone to act inappropriately

Reasonable management action does not constitute workplace bullying. Reasonable management may include actions such as: performance management processes and informing a worker about unsatisfactory work performance. However, if not conducted in a reasonable manner, these actions could still be considered workplace bullying. 

Bullying behaviours can cause serious psychological harm and increase psychosomatic complaints in victims. Organizational effects include lower job satisfaction, absenteeism and turnover. All these negative outcomes can potentially harm the individual’s as well as a company’s overall performance.

Companies face civil and criminal penalties if they breach the care of their workers. For example, in 2019, Australia introduced the Enhancing Whistleblower Protections Bill which provides enhanced protection for those who report unethical activities such as:

  • harassment or intimidation of a person;
  • harm or injury to a person, including psychological harm
  • discrimination

Protecting workers from workplace bullying and harassment has increasingly become a priority issue on the public agenda. The Fair Work Act 2009 also covers contractors/subtractors, volunteers, outworkers and students gaining work experience as well.

Workplace investigations are a process by which employers gather information to assist the employer to make an informed decision. This typically involves enquiring, collecting information and ascertaining facts. However, investigating bullying behaviors in the workplace is a difficult task.

When conducted poorly, this may adversely affect the company’s reputation and result in costly legal suits.

Before embarking on a workplace bullying investigation, we recommend following this guide to ensure that the investigation will yield best results.

1. Take Immediate Action

The importance of timing is one of the most critical, yet often overlooked, elements of an investigation. Failure to act quickly and decisively has concerning implications.

Companies risk immediate consequences such as absenteeism, excessive sick leave and reduced productivity. Taking immediate action is critically important to not only protect the workers from harm but to also protect the company and avoid legal liability. Review bodies such as tribunals or courts  may evaluate the timeline of the investigation and determine whether interviews were conducted in a timely manner. 

Initial decisions that may also need to be considered are:

  • Should we suspend the person who is causing the harm or the alleged threat, pending an investigation to follow?
  • Who do we need to inform of the situation, such as the Board or law enforcement?

Employers may seek to place an employee on administrative suspension. However, unreasonable suspension holds serious consequences and can result in much heavier costs for the company. A thorough risk assessment must be carried out prior to making a decision.

Things to be considered before making this decision:

  • Whether the suspension is done according to a fair process and for a fair reason
  • Whether the suspension is in accordance with the disciplinary policy, though you may do so without an express clause in the suspension contract (Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859)
  • Further harm to the alleged victim and other workers should the respondent remain in the workplace
  • Payment to suspended employee — suspension must be paid unless under exceptional circumstances

If parties involved in the allegation are away for a planned absence or holiday, it is best practice to document the reasons for delay.

2. Review Workplace Bullying and Investigation Policies

Before launching an investigation into workplace bullying, it is important to ensure that the investigation is in line with the organisation’s policies and protocols. It is also important to frame the investigation and know in advance what your organization defines as bullying or harassment, so you can assess whether the reported behaviour is actually bullying.

Every organisation should have a policy or procedural guideline which outlines investigation protocol. This assists in the handling of workplace bullying and harassment complaints.

However, policy changes may be required to stay up-to-date or to ensure clarity. In this case, edits must be authorized and documented. It is best practice to communicate with affected parties before proceeding to the next step.

3. Choosing an Investigator

Investigations are best performed by individuals who can impartially gather the evidence and promptly present it to key decision makers if necessary. Having a fair and impartial investigator helps shield them and your organisation from potential claims that the investigation was inadequate.

The person conducting the investigation should:

  • treat all matters being investigated seriously and confidentially
  • have no conflict of interest
  • record and examine matters objectively based on facts
  • identify and speak to all relevant witnesses

While arranging an internal investigator may be less costly, hiring an external investigator may offer greater legal expertise and neutrality. This minimises the risk of litigation, and should litigation ensue, the report may be covered by professional and legal privilege. Expertise in workplace bullying should also be preferred as they will be more familiar with the issue.

4. Create a plan for the Investigation

Gather all the relevant information about the workplace bullying that occurred, such as an employee complaint, supervisor’s report and evidence such as emails and letters surrounding the matter. Using this information, consider what questions need to be asked, who the potential witnesses are, and whether employees and supervisors can provide any additional material. When preparing investigation questions, ask open-ended questions rather than leading questions to elicit as many details as possible. This also helps minimise potential bias.

5. Maintain Confidentiality

The investigation should protect the confidentiality of all parties involved. Details of the investigation should not be released unless legally compelled to do so. This helps ensure that the reporter of the bullying behaviour is not victimized.

Oftentimes, allegations, even when proved groundless afterwards, can be harmful to an individual or company. Confidentiality ensures the protection of the person accused, the witnesses, and the organisation as well. It also decreases the possibility of retaliation if an investigation ends in an unfavourable result for one of the parties. If information has not been given to outsiders, the employees are less likely to experience different treatment at work. Managers are responsible for ensuring that gossip is not taking place during the investigation and that false rumours do not spread even after the process is finalised. 

6. Conduct Strong Interviews

A strong interview depicts an accurate picture of the situation. It must include specific details such as time and place the incidents took place and whether the incident was discussed with anyone else in the department or company. Although most workplace bullying investigations usually involve the employee accused and the alleged victim, if you believe someone may have seen or heard something important, you may want to interview the witness and get their perspective as well. Make sure that the interview is not taken in the presence of other people to maintain confidentiality.

7. Document the Investigation

A good investigation report is detailed and accurate. All informal conversations, meetings, and interviews must be documented, detailing specific dates and times, who was present, what was discussed, and the agreed outcomes. Some investigations may also require the gathering of other types of evidence such as stolen items, weapons, etc. The report must also explain how and when the complaint came to attention, and what you did about the problem.

An investigation report may later be used in proceedings at tribunals or a court of law. Using a case management software ensures safe and easy management of investigation summaries, interviews, evidence and all necessary documents. If you would like to see how you can generate one-click investigation reports and make it easy to generate briefs of evidence, please click here.

8. Stress Management

Workplace bullying investigations could be incredibly stressful for all parties involved. As stress and fatigue can build up during the investigation, it is vital to exercise effective stress management strategies in order to exercise good judgment and to remain level headed from the initial report to the closure of investigation. You may wish to refer some or all parties to internal or external counselling services. Importantly, you should maintain communication and follow a rigorous process, so all parties know they have been treated fairly and impartially.

The Polonious SIU Case Management System (PCMS) is an agile tool specifically designed to cater to the unique dimensions of each workplace investigation, while providing a rigorous, repeatable process that is compliant with any regulatory requirements. This safe and secure tool adds an additional layer of protection.