Updated: Mar 31, 2022
A blog by Tony McKone, Director/Principal Consultant, McKone Consultancy
If you receive a complaint of bullying in your workplace, it is important that you do not simply dismiss the complaint. Under sec 36 of the Health and Safety at Work Act 2015 (HASWA), a PCBU (person in charge of a business or undertaking) has a primary duty of care to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of a business or undertaking.
Sec 36 (3) of the HASWA states that a PCBU must ensure, so far as is reasonably practicable,—
(a) the provision and maintenance of a work environment that is without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling, and storage of plant, substances, and structures; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.
In order to meet your obligations under the HASWA, this means that, regardless of what you might think about a complaint of bullying, you need to investigate whether there is any substance to the complaint so that you can take appropriate action to eliminate or minimise the risk of harm.
An investigation does not need to be overly complicated, however you do need to ensure that it observes the principles of natural justice and procedural fairness. The investigation is not a disciplinary process. The investigation is a fact gathering process to identify, without bias or prejudice, what has more likely than not occurred. Ideally, the investigation should not be conducted by the person who is going to make any decisions should the investigation substantiate the complaint.
When interviewing the complainant, the respondent (the person the complaint is about) and any witnesses, these people need to be given the opportunity to have a support person or representative present at the interview.
A brief overview of the investigation process is:
Interview the complainant to get the specifics of their complaint. It is important that specific's such as dates, times, what was said, who said what, what responses were made, what action the complainant took to address the complaint, and whether there were any witnesses to the incident(s).
Interview the complainant's witnesses (if any)
Get the complainant and witnesses to confirm their interview statements - these become your evidential statements
The evidential statements then need to be provided to the respondent so they can fully understand what is being said about them so that they can respond to the complaint.
Interview the respondent
Interview the respondent's witnesses (if any)
Get the respondent and witnesses to confirm their interview statements.
If necessary you may need to re-interview people where there are conflicting statements arising from your interviews
Assess the evidence you have gathered to determine whether the complaint is substantiated and if substantiated what rules/policies/etc apply to the situation. You will need to identify what evidence you rely on for reaching any conclusions.
Write up your report detailing your findings and conclusions and recommendations. Your recommendations should not include any recommendations for disciplinary or performance improvement action.
Give the complainant and respondent an opportunity to comment on your report before it is finalised.
Present the final report and copies of all evidential statements to the decision maker.
The decision maker then considers the report and if the findings and conclusions confirm the complaint as substantiated, the decision maker then makes any decision about initiating a disciplinary meeting with the respondent to address the behaviour. In doing this the decision maker must follow due process to determine what, if any, action might be taken to address the complaint.
This is a very brief snapshot of how to conduct an investigation, however there is more to undertaking an investigation than this blog covers. McKone Consultancy is licensed with the Private Security Personnel Licensing Authority to undertake independent employment investigations. If you need assistance in conducting an independent employment investigation contact us today for an obligation free discussion about your needs.