Bullying investigations: unfair and brutal

April 9, 2014

By Josh Bornstein

In possibly the most unusual case of workplace bullying I have encountered the bully kept a diary of his mistreatment of his victim. He catalogued the extensive and sometimes bizarre bullying acts on the company’s information technology system. In doing so, he was bragging to his cohort and encouraging them to join in. They obliged.

The bullying included turning up the heat in the victim’s office to impossible levels and covertly contacting the victim’s customers seeking to persuade them to make a complaint against her.

The bullying allegations were investigated and rejected by two investigations. First the company’s internal investigation gave itself a clean bill of health. Then an occupation health and safety watchdog investigated and dismissed the allegations.

It was only when the victim took the matter to court that critical evidence emerged about what had taken place. It had been withheld from the two earlier investigations by the company and the bully.

How did this occur? Welcome to the dark side of workplace investigations.

When an employee builds up the courage to make a complaint to management about a serious issue in the workplace – sexual harassment, bullying or other misconduct – there is usually an expectation of an independent and impartial investigation.

Although it is common for more minor issues to be dealt with in house, there has been a trend to outsource the conduct of workplace investigation to third parties ostensibly to ensure independence and impartiality.

Despite the growing size of this workplace investigator industry, in the private sector it is largely unregulated. Anyone can set up a business and call themselves a workplace investigator. While most investigators come from human resources or legal backgrounds, there is no qualification or accreditation needed to become a workplace investigator. This means the quality of work varies widely.

Outsourcing a function does not always mean that an organisation relinquishes control. And so it is with workplace investigations. Behind the scenes in many investigations, the company is exercising control over the process and engineering its desired outcome. Employees, whether the aggrieved complainant or the subject of the investigation are completely unaware.

Why? The desirability of an independent and rigorous process clashes with more prosaic commercial realities. A business that seeks a predetermined outcome is likely to retain an investigator who is more inclined to assist its objectives. A rigorous, independent and impartial investigator is far less likely to be retained or to be offered future work if, for example, contrary to the company’s wishes, allegations against a highly valued employee are upheld.

In contrast, an investigator who accepts direction, subtle or otherwise, from the employer and produces the kind of report the employer is looking for, is more likely to get repeat business.
Keeping the victim in the dark

Since the introduction of new anti-workplace bullying laws in January, lawyers have been actively promoting their services to companies to ensure the confidentiality of workplace investigations. The company can retain lawyers either to undertake the investigation or to retain third-party investigators on behalf of the company. In either case, law firms are spruiking that this strategy ensures legal privilege applies so that the investigation and final report are confidential.

Some lawyers ultimately rewrite the investigation report. How do I know this? From discussions I have had with colleagues in the legal profession. How frequently does this occur? There is simply no way of knowing.

Often, the complainant is summoned to a meeting and advised whether the allegations made have been substantiated or not. Questions about the process or the reasons for conclusions made about the original allegations are not answered as that information is “confidential” If lawyers have been engaged, legal privilege is claimed to justify the confidentiality.

For traumatised victims of workplace bullying or sexual harassment, this brutal approach risks further damage to mental health.

In a significant number of cases, employees are left with a distinct impression that the process and outcome of the investigation has been manipulated by the employer.

The new bullying laws mean that the Fair Work Commission will be increasingly scrutinising workplace investigations and assessing whether they have been compromised. It can only be hoped that this process generates some overdue reform to maximise the independence, impartiality and transparency of the process.