A recent unfair dismissal case has highlighted the difficult path employers must walk when responding to bullying and racism claims from workers and the risk that if a claim is not investigated and documented correctly termination could be deemed to be unfair, even in the face of overwhelming numbers of complaints from multiple staff.
Case Review
In this case the business terminated a team leader after receiving 8 complaints from staff about bullying and harassment, including; restricting hours, allocating ‘undesirable’ tasks like cleaning toilets and placing undue time pressures on staff of particular race, cast or gender, as well as excluding some from a bonus scheme, while favouring others.
The business provided the team leader with the details of the complaints, all of which occured in a short period of time. The team leader responded refuting each of the complaints, but was terminated later that day.
During the unfair dismissal case she later lodged the team leader told the Commission she believed the business had invented the allegations to provide an excuse to dismiss her and that it had made its decision before she provided her response letter.
In response the business noted that the recent appointment of a new manager identified the team leaders behaviour and provided the avenue for complaints from staff who had been subjected to bullying and racism from the team leader for years, noting that various workers who “shared distressing accounts of bullying” at the team leader’s hand, but “they were reluctant to speak up” for fear of retaliation.
In testimony a labour hire provider who placed multiple workers at the business outlined that 26 workers had complained about experiencing “sub-human” treatment by the team leader; one worker “felt discriminated against because of her Islamic religion as she wears a burka”, while another allegedly said that “all the Indians got the best treatment and us not from India were treated like crap”.
In finding that the dismissal was unfair the DP Colman stated that “contrary to the company’s contention, the evidence in this matter is not compelling. It is scanty, conclusory, and largely second hand, that is to say, hearsay. It appeared to believe that the sheer number of allegations against [the harvest team leader] presented a persuasive case of guilt,” he said.
“In particular, the allegations that [the harvest team leader] discriminated against other employees on the grounds of race or religion rely on mere assertions. When persons with a protected attribute allege that they have been treated less favourably than others because of that attribute, the appropriate response is to investigate the matter and reach a reasoned conclusion as to whether, on the balance of probabilities, the allegation is actually true. It is unreasonable and unfair to presume that it is. The fact that there may be multiple allegations does not lower the standard of proof.”
Finding the dismissal unfair, the DP Coleman ordered the business to pay the team leader $7,270 in compensation.
Learnings for all businesses
Bullying claims must be handled carefully and methodically, even those that may at first appear baseless.
At the very least all claims must be treated seriously and investigated.
This means seeking the details of the alleged conduct; when it happened, who else was there, what exactly was said or done, was it repeated.
These details need to be investigated by the business and verified to the extent possible; were both people working at the time, is there footage, do listed witnesses corroborate the claim.
Finally the details, once investigated initially, need to be put to the alleged offender and their responses sought.
The offenders responses then need to be investigated and vetted to the extent possible.
All of this must occur before the business proceeds to making findings about the likeliness of the alleged conduct occurring, and then to the appropriate business response in that particular matter given all of the responses.
In responding to any bullying claim it is important that when the issue is raised, either by the victim or ‘through the grapevine’, that the business treats it seriously, protects all employees, investigates, reports and puts into place appropriate corrective measures. In many cases after a claim is raised and investigated the report will be that there was not ‘bullying’ as defined in the Act, but rather a misunderstanding or an incident of poor professionalism. This type of finding in a report is appropriate if the circumstances warrant it.
Every bullying claim must be treated seriously, but not every bullying claim will result in a finding of bullying. Until the report and findings are presented however, the business must respond as if serious bullying had occurred.
Multiple bullying claims against a person or people is not, in and of itself, a valid reason for dismissal.
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
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