Recent changes to employment legislation require Australian businesses to proactively address inappropriate workplace behaviour. As a result, the risks relating to reputational damage and financial consequences have never been greater. Yet case rulings continue to highlight organisations that are failing not only in their positive duty, but also in managing complaints effectively.

Nick Wakeling, Workplace Relations Manager for Bayside Group, says that in his experience, organisations will have less complaints resulting in investigation when:

1.      It is consistently demonstrated that the organisation does not tolerate inappropriate behaviour

2.      Policies and procedures are compliant, clear and understood

3.      Leaders understand the legislation and address issues immediately in line with company processes

“The most common reasons for inadequate responses to complaints are a lack of understanding of their seriousness, a lack of management training, or a tendency for managers to avoid conflict,” explains Nick. “Brushing off a complaint or hoping that it will resolve itself can lead to significant implications for the organisation and the employee/s involved.”

So why do organisations find managing complaints effectively, difficult? We look at common reasons issues occur and escalate in the context of bullying and sexual harassment.

Workplace Bullying

Bullying occurs at work when a person or group of people repeatedly behave unreasonably towards another worker or group of workers, and the behaviour creates a risk to health and safety. Examples include behaving aggressively towards others, teasing or playing practical jokes, pressuring someone to behave inappropriately, excluding someone from work-related events and unreasonable work demands. This is not discrimination; bullying doesn't have to be related to a person’s or group's characteristics, and adverse action isn’t a stipulation.

For employees, it is important to note that reasonable action taken by management is not bullying. An employer or manager can:

• Make decisions about poor performance
• Take disciplinary action
• Direct and control the way work is carried out

However, leaders should understand that management action that isn't carried out reasonably may be considered bullying. Bullying complaints can have long-term psychological effects on complainants that may be compounded if mismanaged, leading to significant Worker’s Compensation claims and even legal action.

According to Nick Wakeling, regardless of the perception of management and co-workers, the experience of the victim is paramount. If someone believes they have been bullied, this is something that an organisation needs to take seriously, even if it doesn’t fall within the technical definition of bullying, because this impacts an individual’s health and wellbeing.

While explicit bullying is more generally understood, it is often more nuanced bullying that is dismissed, leading to investigations and often cultural or systemic problems that have a major impact on organisational performance and reputation. Examples Nick lists include employees feeling as though they’ve been isolated from the rest of the team, people perceiving that they have been repeatedly treated more harshly than their colleagues by their manager, for no reasonable reason, or being the object of jokes. Managers often dismiss these scenarios without understanding the full definition of bullying in the workplace. This understanding is necessary for swift identification and corrective actions relating to inappropriate behaviour.

Sexual Harassment

The Fair Work Act defines sexual harassment as an unwelcome sexual advance or request for sexual favours to the person who is harassed or other unwelcome conduct of a sexual nature in relation to the person who is harassed. It must be reasonable to expect the person being harassed would be offended, humiliated or intimidated and the behaviour doesn’t have to be repeated or continuous.

Misinterpretation can occur when ‘reasonable’ is viewed subjectively (i.e. aligned with perceptions), rather than specific outlined behaviours. Furthermore, many people are not aware a person could also experience sexual harassment by being exposed to or witnessing this kind of behaviour toward a third person. It is also important to note that the intent of the alleged harasser doesn’t matter. In investigations, it is common for the accused perpetrator to justify the behaviour because they didn’t mean anything by it.

With new positive duty obligations under the Sex Discrimination Act, senior leaders need to understand and recognise unlawful conduct. Leaders are responsible for ensuring appropriate measures are taken, updated, reviewed and communicated to workers. Importantly, they should role model respectful behaviour and set the standard for equality and inclusion. It is also beneficial for all employees to receive training and regular updates about sexual harassment in the workplace. This significantly reduces the gap between employee perceptions of what is acceptable and what is acceptable under the Act. It facilitates behavioural change and ensures everyone in the organisation has a common dialogue they can use to voice concerns.

Often, investigations into sexual harassment will uncover repeated behaviours that have not been reported for fear of consequences or have been previously dismissed by the manager when reported. Nick believes organisations need to understand how their leaders respond. “Consistency is essential when an employee discloses a situation to a manager. How are your leaders receiving the information, and what are they doing about it?”

Another area that can lead to complaints and investigations is after-hours incidents and personal relationships. Many organisations have changed the way they sanction functions in recent years, but it’s important to reflect company expectations in policies and procedures relating to engagement in work-related social settings, including social media.

Effective complaint management

Best practice, according to HRM, is to:

• Consult with workers about existing and proposed complaint handling measures within the organisation.   
• Implement a workplace policy that sets out the organisation’s complaint handling procedure
• Implement a “bystander” policy
• Regular and continuous communication

When a complaint is made, it is critical to undertake a risk assessment to determine whether any workplace adjustments are required to protect the safety of the complainant and ensure confidentiality. It may be necessary to temporarily change reporting lines, direct one of the parties to work from home, or in serious cases, suspend the alleged perpetrator from work while the investigation is undertaken.     

It is also essential to decide whether the investigation will be undertaken internally or by an independent party. Some investigations can be as simple as conducting a desktop review internally, while others may require technical advice or independence that the organisation cannot provide. An investigator needs to be impartial, which means they shouldn’t have an actual or perceived conflict of interest.

Bayside Group’s Workplace Relations team can assist you with investigations. We work with organisations to ensure compliance, provide training, and review policies and procedures. To learn more, see our Workplace Relations Resources or contact Nick Wakeling today on 03 9864 6000.