Have you been unfairly accused of bullying at work? You have options.

The definition of workplace bullying in Australia

It is important to be aware that workplace bullying does not have a universal definition in Australia. Therefore, it is always necessary to ensure you understand the definition you are working with is properly identified. That said, in Australia, a key definition of workplace bullying is found in the Fair Work Act 2009 (Cth). The Fair Work Act covers most employees in Australia. As such, it is generally the definition referred to when people ask about the meaning of ‘workplace bullying’.

The definition of when a worker is bullied at work is found in section 789FD(1) of the Fair Work Act 2009 (Cth). It states:

When is a worker bullied at work?

1. A worker is bullied at work if:
   1. while the worker is at work in a constitutionally-covered business:
      • an individual; or
      • a group of individuals;
   repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
   
   2. that behaviour creates a risk to health and safety.

So, to break it down, the definition of ‘bullying’ in section 789FD(1) of the Fair Work Act 2009 (Cth) has a number of key words and phrases:

1. “while the worker is at work”
2. “individuals” or “group of individuals”
3. “unreasonable” behaviour
4. “repeated” behaviour
5. “creates a risk to health and safety”

If any element of the definition cannot be established, then the allegation of bullying fails. Also, conduct considered ‘reasonable management action’ is excluded from the definition of workplace bullying.

The meaning of reasonable management action

Many people who face bullying complaints in the workplace are managers in one form or another. However described, executives, managers, and business operators have as part of their role the task of managing the conduct and performance of other workers. It is by no means uncommon for performance management issues to lead to allegations of workplace bullying. So, for those people in particular, it is important to understand that ‘reasonable management action’ is a complete answer to workplace bullying allegations.

For anybody who may face a workplace investigation into bullying complaints, the Fair Work 2009 (Cth) specifically excludes ‘reasonable management action’ from the meaning of workplace bullying. Section 789FD(2) states:

When is a worker bullied at work?

1. …
2. To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.

Reasonable management action may involve performance management and appraisals, changes to working arrangements, investigating complaints and disciplinary action. Overall, these actions may affect the rights or interests of a worker who may feel, rightly or wrongly, that they are being unfairly targeted. As a result, it is in that context that complaints can be made against an executive or manager.

Examples of workplace bullying

Seeing examples of what may be workplace bullying can assist in illustrating the types of behaviours intended to fall within the meaning of ‘workplace bullying’ in the Fair Work Act 2009 (Cth).

With respect to bullying, in Mac v Bank of Queensland Limited and Others [2015] FWC 774, the Fair Work Commission gave a list of the features at least some of which one might expect to see in a case of unreasonable behaviour that constitutes workplace bullying (see paragraph [99]):

[99] … My list included the following: intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination…

The above illustrates that workplace bullying can be perpetrated in a variety of ways.

Examples of reasonable management action

Seeing examples of reasonable management action can assist to show what may be sufficient to meet the defintiion of ‘reasonable management action’ in the Fair Work Act 2009 (Cth).

It was said in R GC [2014] FWC 1231 at paragraph [56]:

[56] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

• management actions do not need to be perfect or ideal to be considered reasonable;
• a course of action may still be ‘reasonable action’ even if particular steps are not;
• to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
• any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
• consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

Footnotes omitted.

Workplace investigations serve a number of purposes

The essential function of a workplace investigation is to find the truth based on a fair examination of the evidence. Workplace investigations enable employers to understand the facts and identify the issues relevant to resolving allegations or disputes. They typically involve an examination of an allegation of wrongdoing that may lead to disciplinary action.

Employers are often balancing a number of interests in commencing a workplace investigation.

For an employer, a workplace investigation can serve the following purposes:

1. Enforce workplace standards
2. Comply with legal obligations
3. Minimise legal risks

1. Enforce workplace standards

Most workplaces have policies and procedures that set expectations about behavioural standards for the workplace. Such policies and procedures may not just set standards for how employees must conduct themselves but also how employers will respond to alleged or suspected contraventions of them. Policies and procedures guide the resolution of concerns, complaints and grievances. They may specify when a workplace investigation is necessary.

2. Comply with legal obligations

There are many legal obligations that individuals, businesses and organisations owe under various laws. For instance, some allegations may trigger mandatory reporting obligations to law enforcement agencies, work health and safety regulators, professional or industry bodies, or insurers. Failure to comply with legal obligations can obviously carry legal consequences.

3. Minimise legal risks

Every business has an interest in providing a safe workplace and managing reputational risks, as well as advancing its productivity, profitability, and goals. A workplace investigation that is conducted properly contributes to all of those ends. If handled poorly, not only are those interests put at risk, legal and regulatory action may follow.

A workplace investigation may not just involve a question of disciplinary action for a respondent. Concurrent actions can be raised by a person who feels aggrieved in a number of ways:

• adverse action claims;
• anti-discrimination claims;
• breach of contract claims;
• human rights complaints;
• work health and safety complaints.

An investigation into a complaint or grievance may therefore form part of the risk-management strategies of an employer. However, unfair workplace investigations themselves create legal risks. Any investigation at work that is unfair creates risks for employers and exposes them to successful legal claims.

The four types of workplace investigations

For an employer, there are essentially four different types of workplace investigations:

1. Preliminary investigations
2. Internal investigations
3. Guided investigations
4. External (independent) investigations

Preliminary investigations

A preliminary enquiry or preliminary investigation often arises in response to vague, uncertain or inadequate information. It may relate to suspected wrongdoing such as fraud against the company, or misuse of confidential information. A business or organisation may undertake a preliminary enquiry or investigation in order to protect its interests and decide what response, if any, is warranted in the circumstances. Such preliminary investigations are aimed at identifying the issues, rather than putting allegations to a respondent.

Internal investigations

Many larger businesses and organisations have internal managers, dedicated human resources professionals and in-house counsel that have the expertise to conduct complex investigations into serious allegations. Having large internal resources to draw upon often means a procedurally fair investigation can take place, often within tight timeframes.

Guided investigations

A guided investigation is one where a business or enterprise seeks to conduct an internal investigation but in doing so obtains external guidance, often from a law firm or investigation agency. The benefit of a guided investigation is it matches the advantages of an internal investigation while minimising the risk that it will not withstand review by a court or tribunal.

External (independent) investigations

An external, independent investigation allows a business or organisation to have allegations or issues investigated impartially, so as to allow a procedurally fair process to occur. Such investigations are often appropriate for serious allegations of wrongdoing and, in particular, when managers are implicated. A thorough and independent investigation allows decision-makers to understand the allegations investigated, evidence obtained and findings made, so as to make decisions based on those matters.

Employee rights in a workplace investigation

Employees facing workplace investigations have a number of rights or are owed a number of obligations by their employer. Commonly, employee rights in investigations include:

• Procedural fairness
• Confidentiality rights
• Legal or union representation
• Privilege against self-incrimination
• Reasonable accommodations
• Work health and safety rights

Understanding these rights can be important in navigating any workplace investigation.

Responding to a workplace investigation

A workplace investigation presents both risks and opportunities. For the respondent, the main risk is facing potential findings that may have reputational, professional, and financial consequences. However, workplace investigations also present an opportunity to ‘clear your name’ and move forward.

If you need to respond to a workplace investigation, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact an allegation, grievance, or complaint in the workplace can have on the person facing it. This firm defends executives and employees who face investigations and wish to put their best foot forward.

Challenging unfair workplace investigations

It is not uncommon for people to have misgivings about the fairness of a workplace investigation they may be subject to, yet still ‘hope for the best’ in the belief that it may be held against them if they challenge issues during the investigation. While this is an understandable thought, it can backfire. Failing to make a timely objection to something may be taken into account as being the product of disappointment with the process only in the aftermath.

Deciding to raise objections to aspects (or the entirety) of a workplace investigation requires careful consideration. However, where the concern relates to something that may adversely affect the conclusions reached by an investigator, it can be important to consider what impact it may have on the ultimate outcomes. Examples of instances where an investigation may be challenged include the following:

• Bias or perceptions of bias on the part of the investigator;
• Investigators acting inconsistently with the law or procedures relevant to the particular investigation;
• Allegations that are general, vague or do not disclose their basis; and,
• Failure to disclose key evidence or give notice about possible adverse findings.

Generally, though not always, the longer a process goes on the harder it is to seek alterations to it. For that reason, anybody who holds concerns about the fairness of an investigation into workplace bullying allegations ought to seek advice from an experienced employment lawyer at the earliest opportunity.

A show cause letter provides an opportunity to respond

In workplaces, the purpose of a show cause letter is to afford an employee an opportunity to respond to proposed disciplinary action by their employer. It is particularly important when termination of employment is a possibility.

In Australia, if an employer fails to give an employee a chance to respond to proposed disciplinary action, their decision may be reversed, and compensation ordered.

The Fair Work Act 2009 (Cth) covers most employees in Australia. Under section 387(c) of the Fair Work Act, failing to give an employee an opportunity to respond may see a dismissal labelled harsh, unjust or unreasonable. The law states:

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) …

(b) …

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and …

The Small Business Fair Dismissal Code also refers to giving employees an opportunity to respond to the reason or reasons for dismissal before the employee is dismissed.

A template for show cause letters

While show cause letters will vary according to the circumstances, typically they should contain the following information:

• The potential disciplinary action (such as termination) that may result if the employee does not ‘show cause’;
• Adequate particulars of the alleged underperformance, misconduct, or other issue giving rise to the potential disciplinary action. This may necessitate identifying the dates, times, places, and people relevant to the allegation;
• Reference to, or disclosure of, the evidence relied on by the employer that is sufficient to allow a fair opportunity to respond;
• Any relevant workplace history or background (i.e., previous warnings) the employer may take into account when deciding the outcome; and,
• Information about how the employee is to respond, as well as any other rules (such as confidentiality) that may apply to the process.

In essence, a show cause letter must outline sufficient information to put the employee on notice about the issues that may be relied upon by the employer as a valid reason for termination.

Response options following a show cause letter

If you have received a show cause letter, it is important to look ahead and consider the question ‘what may happen next’? Understanding the options available when responding to a show cause letter can help people to adapt their response to their goals. Response options to a show cause notice include:

• Obtaining advice and guidance
• Challenging the process
• Challenging the allegations
• Initiating ‘without prejudice’ negotiations
• Arguing for lesser consequences

If you need to respond to a show cause notice, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. If you receive a show cause letter, it is critical to seize the opportunity to put forward a compelling and convincing response to it.

Why you should avoid template responses

The primary objective of a response to a show cause letter is to persuade. More specifically, to persuade the employer to a particular outcome. This is best achieved by responses that are tailored to the specific circumstances. As such, if you need to respond to a show cause letter, it makes sense to avoid template responses in favour of one that is individualised. However, while emphasis may be placed on tailored responses, it is possible to identify common threads amongst effective responses. This includes:

• Why the message must be clear
• How allegations and issues are addressed
• What makes for a compelling response
• How the response is concluded

There are no shortcuts in how to respond effectively to a show cause letter. It takes proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies. No generic template or response created by artificial intelligence will likely cut it.