Relevant workplace legislation has upped the ‘ante’ on the consequences of workplace bullying.
In Victoria, politicians rightfully agreed that workplace bullying is a crime with the potential to kill. This resulted in amendments to the Crimes Act commonly referred to as “Brodie’s Law”, named as such after the tragic death of Brodie Panlock, a waitress subjected to horrendous treatment by fellow employees at a Melbourne café. People do get bullied in workplaces. Bullying is an ugly and unforgivable act, often instigated by people with underlying complexes, anxieties and dysfunctions. With stiffer consequences or penalties for bullying or harassing behaviour, managers are often reluctant to performance manage staff in case a bullying claim is made against them.
A vexatious complaint is a form of abuse. A vexatious complaint has the power to hurt and disrupt another person’s life in such a way that their career can be torn to shreds and may result in psychological injury. I remember hearing comments about investigations run in organisations who appointed investigators (sometimes legal professionals) allegedly with the express purpose of exaggerating the gravity of a complaint. I recall one case in the 1990s where a group of professionals were advised by their manager to ‘resign now’ in order to save their reputation. Subsequently, the investigation found that 99% of the allegations did not have any substance. The investigator found that the complaint may have in fact been made with the express intent to hurt the respondent. This highlighted to that organisation the need for clearer policy direction and consequences for frivolous or vexatious complaints.
Generally speaking organisations have made great strides in recent years in coming to terms with the principles of natural justice, and particularly when handling complaints. The aim of any workplace investigation is to achieve an outcome that reeks of procedural fairness. Ill-conceived witch hunts and / or half-hearted attempts to investigate complaints should be a thing of the past. Complainants are well informed of their options if they are unhappy with an investigation outcome, there are a range of WHS Authorities, tribunals and courts they can turn to.
iHR Australia’s Director of Workplace Relations Mr. John Boardman noted; “Organisations should ensure that their relevant policies contain processes and procedures for identifying frivolous and vexatious complaints. While many policies include a reference to vexatious complaints very few attempt to define what makes a complaint vexatious or provide guidance as to what is the difference between an ill-conceived or unfounded complaint and a vexatious complaint”.
Mr. Boardman warned, “Courts and tribunals set the bar rather high before finding that a complaint is vexatious but the consequences of an adverse finding could result in the award of damages, costs and fines for breaches of WHS legislation”.