18 Aug 2016
Employers to take care when conducting bullying investigations
By Anna Casellas, Maddy Clohessy
When conducting a workplace investigation take care to provide support to both the complainant and the employee who has had allegations made against them.
The Queensland Court of Appeal has held that an employer who conducts a bullying investigation into a complaint made against an employee may owe a duty of care to support that employee throughout the investigation process (Hayes v State of Queensland  QCA 191).
The facts in the Hayes case
Four employees of the Maryborough office of Disability Services Queensland had allegations of bullying and harassment made against them by other workers in 2008 and 2009. The complaints were publically supported and pursued by the union.
Each employee was a manager, who managed around 50 other employees. The employer undertook an investigation into the matter, which led to a finding that none of the allegations were substantiated.
Subsequently, each of the four employees brought claims alleging that they were owed a duty of care by the employer when a complaint was made against them and throughout the investigation process. The employees claimed there had been a breach of this duty as they were not adequately supported throughout the investigation leading to psychiatric injuries.
The District Court found that no such duty of care arose, dismissing the claims.
Duty of care to prevent psychiatric injury
Each of the employees appealed to the Court of Appeal. The majority of the Court of Appeal found that a duty of care existed in three of the four cases, finding that "[t]here is no doubt that in appropriate circumstances an employer will owe a duty of care to take reasonable steps to prevent psychiatric injury to an employee". This duty will be engaged if the psychiatric injury is reasonably foreseeable in the case of the particular employee.
However, the Court of Appeal held that the employees’ evidence failed to establish that any breach of this duty of care had caused the injuries suffered.
Previously courts have held a claim for a breach of the duty arising out of an employer conducting an investigation into an employee's alleged conduct must fail. That position was maintained in this case. However, the employees did not complain about the investigation itself, instead the basis of their claim was that there was a duty to support them during the process.
Failure to provide adequate support
On appeal, it was established a claim could be made in this instance for a failure to provide adequate support to the employee from the time a complaint is made and while the investigation is ongoing. Whether or not the duty will arise is a question that will turn on the particular facts in each circumstance.
In the case of the employees to which the Court held the duty was owed and breached, the Court held that as similar complaints had been made against them in 2008, once the 2009 complaints had been made, the employer was aware that there would be a serious and substantial investigation. As the employer was relatively large and sophisticated, the employer should have been able to foresee that if support was not offered, each employee might suffer harm.
The duty was breached because the employer offered no support other than a free Departmental counselling service, removed some of the employees from their substantive roles and gave them no meaningful workload, made some of the employees continue to work with the multiple complainants in circumstances where they were subject to picketing by the union, and "unreasonably and unnecessarily isolated and segregated" the employees. This was held to be a breach of the duty. However, the claim failed to establish that the injury suffered had been caused by the breach.
In respect of the employee to which the Court held no duty was owed, the distinction was that this employee did not lose her substantive position during the lengthy investigation, instead she was moved to a different role she had requested, which to an extent removed her from close proximity to the complainants and "somewhat insulated" her.
Key takeaway points for employers:
- Workplace investigations into bullying and harassment claims made by employees are becoming more prevalent.
- When conducting a workplace investigation take care to provide support to both the complainant and the employee who has had allegations made against them.
- Make sure employees are made aware of support services that they can access, and in addition think about positive steps that can be taken to mitigate distress suffered during the process.