Workplace bullying investigation
Can a performance management or disciplinary process be conducted concurrently with a bullying investigation?
Workplace bullying investigation – One of the most common issues arising from a performance management or a disciplinary process is a complaint of bullying or harassment made by the person subject of the process. The complaint can either be in relation to the person conducting the process, or another person, often a manager.
Complaints of bullying or harassment may occur as a result of the process itself (people don’t like being told that their performance or behaviour is not up to the expected level) or beforehand if an employee senses that their performance or behaviour is unsatisfactory and their position may be on the line.
In either circumstance, employers are not automatically restricted from proceeding with both processes concurrently. There is no specific requirement at law which requires the suspension of the performance management process. However each situation should be assess on its merits, don’t make things harder for yourself if they don’t have to be.
It may be operationally vital that the disciplinary process is undertaken and finalised expediently (for instance, where an employer’s policy requires it), however in most cases I recommend pausing the performance management process while the investigation is being conducted.
When assessing whether it is appropriate to continue both processes concurrently, employers are encouraged to first consider whether the claim of bullying could be related to, or adversely affect the legitimacy of, the disciplinary process.
It is not uncommon however that the performance management or disciplinary process is put on hold until the complaint of bullying or harassment is investigated.
How should HR proceed while handling these two processes?
I recommend that employers wishing to proceed with both processes concurrently should ensure that the following steps are taken:
- The processes are kept separate and distinct. It is essential that the persons involved in the disciplinary process are not also involved in investigating the complaint.
- Where HR cannot facilitate this, or where the complaint involves senior management, employers should consider engaging an external expert to investigate the complaint.
- The investigation of the complaint of bullying or harassment is conducted in a timely and professional manner. Once again it is worth considering engaging an external expert to investigate the complaint.
- Ensure that internal policies and procedures are followed, make sure your policy allow you to conduct the processes concurrently.
- Have a clearly and defined process for investigating the complaint in place.
- If the performance management or disciplinary process are to be conducted concurrently the person that is or was conducting the performance management should not be involved in the investigation.
- Keep clear and comprehensive documented evidence of the decision-making process.
In addition to further bullying claims, employers also risk a claim under the general protections provisions where disciplinary action has been taken following a complaint of bullying.
If in doubt or you don’t have any of the following; time, experience, expertise or Confidence, Call an expert, the saving in stress will outweigh the cost – AWPTI can assist details here
The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
If I can assist you, please contact me on 02 9674 4279 or via my LinkedIn profile.
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.
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