Another recent trend we have seen is for employers to simply pass on employee complaints to respondents as generalised allegations. This regularly occurs in “bullying” scenarios with a history of relatively low level conduct. The allegations often involve a statement that certain conduct:
1. may be misconduct OR gross misconduct;
2. may be in general breach of the code of conduct or other policy; and
3. has distressed another person who perceives that conduct to be wrong.
We have seen several instances where an allegation of bullying has been expressed simply as an employee raising their voice or ignoring someone over a period of time which has made a fellow employee feel distressed. These sorts of allegations are on the one hand very difficult to respond to because of the lack of factual detail but are even harder for the decision maker to assess. Any dismissal or other disciplinary action on such a general basis is likely to be successfully challenged.
The facts should be investigated before the making of formal allegations. Engaging an expert investigator for this purpose is often desirable. This enables information to be obtained in a non adversarial way and consideration given to whether the complaints may have substance before proceeding to formal allegations. It also allows precisely formulated factual allegations to be made and enables specific policy and other breaches to be stated. This involves an objective analysis of wrongdoing rather than reliance on an employee’s perception. It should also be made clear whether allegations are so serious that they may justify termination without notice (ie gross misconduct). Often, a two stage approach of allowing a response on the facts and then a separate response on penalty (in the event of an adverse finding of fact) should be taken.
In the example above, the complainant, respondent and witnesses should be spoken to before any allegation is made so that a picture of events can be obtained. If there is some support for the complaints, then the allegations should detail particular incidents by reference to the date, place, time, context and what precisely is alleged to have been said or done. The allegations should detail how those facts, if proven, amount to a breach of particular policies and particular parts of policies. Where appropriate, the allegations should state whether a preliminary view has been reached that, if proven, the allegations amount to gross misconduct. This means that the respondent has to answer in precise terms and gives a better basis for decision making and defending any later action by an aggrieved employee.
Employees should be careful how they respond to generalised allegations and should ask for details of factual allegations and how they amount to breaches of obligations and/or policies. However, employees should not refuse to provide a response if these details are not forthcoming. It is best to seek advice about the best way to respond in these circumstances.