The following case is a good example of the fine line between an employer’s power to investigate and how easily the power can be abused. Each workplace investigation will be conducted differently depending on the circumstances and allegations. However, the Fair Work Act 2009 (Cth) outlines all procedural requirements. No more or less than what is required.
Ms Virginia Wills had been employed by NSW Trains for 20 years. During a workplace investigation conducted by Sydney trains Ms Wills lodged a stop bullying order. Ms Wills argued that Sydney Trains, and specifically Mr Grant Marley (the individual conducting the investigation) had caused 32 actions against her during the course of the investigation that cumulatively resulted in bullying. On 18 March 2020, Ms Wills was stood down and told to hand in her belongings immediately. The following are some examples that Ms Wills declared actions against her and thus the basis of her bullying.
- The act of suspending Ms Wills.
- Ms Wills did not receive the allegation letter until 10 weeks into her suspension.
- Requesting a response to the allegations within 7 days, which was extended 4 times on the request of Ms Wills solicitor.
- Denying Ms Wills documents due to confidentiality issues.
- Denying Ms Wills access to her laptop.
- Asking Ms Wills to review the documents in person and under supervision.
- Not postponing the investigation when Ms Wills was found unfit for work due to mental health issues.
- Requesting a response while Ms Wills was ill.
- Failure of Sydney Trains to respond to her letters.
Sydney trains replied that no individual act constituted bullying. Furthermore, 9 of the 32 actions were required to complete the workplace investigation and that they were following procedural fairness and preestablished policies. Additionally, Sydney trains put forward that there was a lack of factual foundation to support the allegations. Due to the fact there is a lack of support it cannot be said that the actions were done together in a repetitive faction, but separate necessary instances.
Deputy President Cross has to consider if Ms Wills had been bullied, and if there is a chance that the bullying will continue. The test to identify bullying is objective where an individual or group ‘repeatedly behaves unreasonably towards a worker’ and ‘creates a risk to health and safety’. A large portion of how the test is applied was discussed and dissected in Blogojevic v AGL Macquarie Pty Ltd (2018) 279 IR 380 from the full bench. Additionally, Vice President Hatcher in Mac v Bank of Queensland Ltd (2015) 247 IR 274 listed actions that would constitute ‘unreasonable actions’. All considerations that Deputy President Cross considered in order to decide whether all 32, or a portion of the actions, actually constituted bullying.
Furthermore, Deputy President Cross will have to consider whether the workplace investigation was done in accordance with how it was attended to. To fact find and come to an unbiased outcome. Or whether Sydney trains had used a workplace investigation as a cover in order to intimidate, humiliate, or victimise, Ms Wills.
After considering all the allegations and facts provided Deputy President Cross had found that Ms Wills was not bullied by Sydney trains or anyone else conducting the workplace investigation. While not necessary, Deputy President Cross commented that he found Ms Will’s claim was unreasonable and Sydney Trains and associates, considering the circumstances, had acted reasonably.
It was found that none of the allegations from Ms Wills were found on Mac v Bank of Queensland Ltd list of ‘unreasonable actions’. Furthermore, no one was acting with intentional malice or sinister intent. In regards to the investigation itself it was found that Sydney trains had conducted the investigation appropriately and there was no divergence to what was expected in any other investigation. Ms Wills was not intentionally singled out for any inappropriate reason. What was found unreasonable was the fact that Ms Wills tried to spearhead the investigation and outline the terms and conduction of the investigation. Inevitably prolonging the investigation process. Deputy President Cross had gone so far to label the allegations against Sydney Trains ‘absurd’.
As it was decided there was no bullying, Deputy President Cross did not have to decide whether the bullying was a risk to Ms Will’s health and safety. However, he did comment that the stress of the investigation did manifest into an illness for Ms Wills. And could be considered a risk.
As there was no bullying Deputy President Cross had no powers to make any orders and the case was dismissed.
This case does raise a number of considerations for employers to think about while they are conducting their own investigations. The first point is that every investigation has their own factors that determine what is reasonable and unreasonable. For example, a more complex investigation would reasonably require more time and extensions compared to a simple and straightforward investigation. This may pose a challenge when trying to comply with procedural fairness, however that is why there are dedicated HR teams and legal representatives who help. Always try to establish expectations and communication early to prevent issues forming later on.
Secondly, it is always safer to provide all the information possible to an accused employee in order to ensure fairness. While it can be reasonable in some circumstances, providing clearer communication will rarely adversely affect an investigation. Furthermore, helping prevent employers being accused of the ‘kitchen sink’ method of investigations where all minor and major accusations are thrown at an employee to justify an investigation or dismissal that otherwise would be obviously unfair and unreasonable.