How to conduct a workplace bullying investigation – Tips and Traps – Part 2

by 25 Jun 2019Workplace Investigations

In Part 1 of this series, I discussed the investigator’s role and how to collect evidence. If you missed it, you can read that article here.

In Part 2 I am going to discuss dealing with the complainant, witnesses and respondent.

Dealing with the Complainant

It often takes significant courage to make a formal complaint of workplace bullying. The complainant, as with the respondent and witnesses, should be dealt with sensitively.

Having said that, an investigator should not shy away from their duty to get to the truth of the matter and to test the evidence of each person participating in the investigation.

If they have not already done so, the complainant should be required to properly particularise any generalised allegations of workplace bullying with concrete examples of behaviour that they allege amounts to bullying. The complainant should be asked to identify any witnesses to alleged events or behaviours. Finally, an opportunity to provide any documents which are relevant to the matters under investigation should be provided.

The investigator must always be careful of the language they use during interviews, both with the parties themselves and witnesses. As the investigator is to be unbiased and open-minded, it is inappropriate to use phrases such as “I’m not doubting what you say”, “you are quite correct”, “yes, I can understand how that would make you feel” or “yes, he sounds like a real #$%@”. While it is important to build a certain level of rapport with an interviewee, an investigation interview is not counselling or therapy and the investigator is not the interviewee’s friend. Therefore, such phrases, even if innocent in their intention, should not be used so as to avoid later complaints of apprehended bias or prejudgment of the issues being investigated.

Dealing with Witnesses

Witnesses should be dealt with as sensitively as the complainant and respondent.

Witnesses should never be promised absolute confidentiality or anonymity in relation to what they say during their interview. Such an undertaking can frequently not be kept due to natural justice requirements and, in the case of government bodies, the potential for access to investigation materials through Right to Information and/or Freedom of Information legislation.

Sometimes witnesses will not know anything about the subject matter of the investigation before their interview and may therefore need some additional time to recollect events.

Also, it should be kept in mind that it is often the case that specific alleged events and behaviours that are significant and important to the parties directly involved in workplace bullying allegations may not be significant or important to the witness. As such, just because a witness does not recall a specific event or behaviour occurring when they were in fact present at the relevant time does not necessarily mean that the alleged event did not happen.

Dealing with the Respondent

Answering an allegation of workplace bullying is, for most respondents, a very stressful and difficult process. As with the complainant and witnesses, the respondent should be dealt with sensitively.

Again, however, an investigator should not shy away from their duty to get to the truth of the matter and to test the evidence of each person participating in the investigation.

Natural justice (or procedural fairness) requires that the respondent have the allegations and, at least, the substance of evidence which is substantial, probative and adverse to his or her interests put them and be provided with a reasonable opportunity to respond to that information. This should be done systematically and logically so as to avoid confusing the respondent, particularly in cases where there are a large number of allegations. Generally, it is most logical to deal with matters chronologically wherever possible.

What if the respondent refuses to be interviewed, or attends an interview but refuses to answer some or all questions? The appropriate approach will always depend on the particular circumstances and there are some potential differences between public sector and private sector settings.

However, two broad approaches are often available. First, it may be appropriate to direct the employee to attend an interview and to answer the investigator’s questions or face potential disciplinary consequences for failing to follow a lawful and reasonable direction. Second, the respondent could be warned that if they fail to take the opportunity to be interviewed, then any evidence that is adverse to their interests will remain unchallenged and may be accepted by the decision-maker.

In Part 3 of this series, I will address the emerging issue of covert recordings as evidence.

Alison McRae

Alison McRae is a Director with Farren McRae Workplace Lawyers and Consulting. She specialises in complex workplace investigations across the public and private sectors. Thorough, meticulous and insightful, Alison easily teases out the core as well as the underlying sub-issues impacting on the matter. Alison also has extensive experience in policy and compliance, both in the government and independent education sectors.

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