Investigations are a necessary element of the modern workplace, deployed by employers in response to allegations of employee misconduct. These processes are often onerous for the accused employee. They can be lengthy, draining and have the potential to tarnish the individual's reputation (whether ultimately found guilty or not). If the misconduct is proved, termination of employment may follow.
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Nowhere are these statements truer than in the Australian Public Service, where a robust complaint and investigation mechanism ensures the code of conduct is upheld. Established by section 13 of the Public Service Act, the code mandates that public servants must do everything from act with care and diligence to comply with lawful and reasonable directions. As I have written previously, the scope of these provisions is expanding (at least in the eyes of their enforcers), such that public servants must exercise constant vigilance so as not to fall foul of the code.
When it is alleged that the code has been breached, each department has its own (broadly similar) policies and procedures for investigating the allegations. An alleged breach does not automatically require a proper investigation – minor breaches can be dealt with informally where appropriate. For example, the guidelines of one agency say that "in less serious cases of misconduct", monitoring and coaching, mediation, written warnings and performance management may be appropriate in lieu of a formal investigation.
However, code of conduct investigations often take on a life of their own. It's not uncommon to see investigations last for 12 months or more, involve forensic inquiries into minor incidents and include interviews with everyone even tangentially relevant to the subject matter of the complaint. In such cases, the investigation itself can be perceived by the accused as bullying. While the sole purpose of APS disciplinary powers is to protect the agency (and not punish the employee), in our experience investigations can transform into witch-hunts against the accused driven by ulterior motives. An investigation of bullying can become bullying by investigation.
The options available to a public servant in such circumstances are limited. Investigations are a perfectly legitimate workplace tool, and employers (the federal government included) have a range of workplace obligations to their employees that are often best addressed by investigations. Proving that an investigation of alleged misconduct is, in fact, bullying is not easy. Yet two recent cases suggest the position of the accused is not entirely hopeless.
In Lynette Bayly, an applicant subject to a misconduct investigation applied for stop bullying orders in the Fair Work Commission. Bayly claimed the allegations made against her and ensuing investigation were a vindictive response to a complaint she had made against a senior executive, and constituted workplace bullying.
The Fair Work Act's anti-bullying provisions, introduced in 2014, are often criticised for their lack of practical effect. This is, in part, because stop bullying orders cannot be made if an employee loses their job after making the application but before the dispute is heard; the commission can hardly order that workplace bullying is stopped if the applicant is no longer employed. Bayly, fearing that the investigation would conclude and she would be terminated before she could garner the protection of the stop bullying jurisdiction, applied for interim orders to prevent the investigation being finalised.
Commissioner Peter Hampton acknowledged it would be undesirable for anti-bullying provisions to be used to circumvent reasonable disciplinary action and its consequences. He also noted that preventing an employer from dismissing an employee would cause prejudice – the employer would be forced to continue paying the employee's wages and could not otherwise fill the position.
Despite observing that such orders "would not be issued lightly" and "should be exercised with considerable caution", Hampton ultimately granted Bayly's application. While the case provides no definitive answer as to whether workplace investigations can constitute bullying conduct, the commissioner's willingness to issue interim orders suggests there is a strong argument to that effect. Employees accused of misconduct who consider that an ongoing investigation is tantamount to bullying may ight therefore find a friend in the Fair Work Commission.
In Hayes v Queensland, meanwhile, the Queensland Court of Appeal found an employer has a duty to support the accused in a workplace investigation. Allegations were made against several employees, who suffered psychiatric injury due to the mishandling of subsequent investigations. Justice Jean Dalton wrote: "There 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."
In that case, the employer had offered no support to the accused employees other than a free counselling service. Several employees were withdrawn from their substantive roles and given no meaningful work, which had "unreasonably and unnecessarily isolated and segregated" them. While the court ultimately found that the link between the employer's actions and the psychiatric injuries was not proven, it was prepared to find that the duty of care had been breached. In other words, employers must provide adequate support to those under disciplinary investigation – suspending the accused, hiring an external investigator and forgetting about the situation is not an adequate response.
As I have written elsewhere, "employers seemingly find themselves between a rock and a hard place" in this context. Statute, policies and the victims of workplace misconduct demand proper investigation. Yet, as emerging case law reminds us, the accused has rights, too.
John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Rebecca Richardson and Kieran Pender for their help with this article. john.wilson@ballawyers.com.au
