A well handled complaint about bullying and harassment

Agency's handling of the complaint

The agency appointed an independent investigator to conduct an investigation into the complaint. The investigator concluded there was insufficient evidence to substantiate the allegations. The investigation also found evidence which directly contradicted the allegations made by the complainant.

The investigator concluded the complaints about the two colleagues were malicious and vexatious and were made in order to achieve a change in reporting line. The investigator was concerned that the complainant’s conduct may have been inconsistent with the agency's bullying and harassment guidelines and the APS Code of Conduct.

The complainant was issued with counselling and a warning and was put on notice that if they repeated their conduct again, they may be subject to a Code of Conduct investigation.

Reasons for review

The complainant made an application for a secondary review to the Merit Protection Commissioner as they were concerned the agency had not appropriately investigated  the complaint and due to concern the delegate was biased and did not appropriately interpret the definition of what is sexual harassment.

Our assessment of the handling of the complaint

In our view, the investigator acted reasonably and appropriately in conducting the investigation. They conducted a fair and robust investigation by:

• treating the allegations seriously from the outset
• providing the complainant with ample opportunity to explain their concerns and be heard on these matters
• conducting the investigation in a timely manner.
• interviewing relevant witnesses close in time to the complaint being made
• providing the persons the subject of the complaint with ample opportunity to present their version of events and supporting documents
• identifying and interviewing team members who may have witnessed the alleged events or had relevant knowledge of these matters
• obtaining relevant documentation and email records.

Our assessment of the evidence

After interviewing both employees subject to the complaints, as well as other team members who were present for the meetings, there was no evidence uncovered which supported the complainant’s allegations. In fact, the evidence indicated that the allegations may have been manufactured by the complainant.

In relation to the complaint that they were given work above their classification level, the agency:

• interviewed the supervisor and asked them to respond to the allegations
• obtained relevant records relating to the allocation of work
• reviewed the APSC work level standards for the complainant’s APS level
• considered the complaint in light of the complainant's role descriptions and statements of duties to be performed, as well as the relevant work level standards.

The agency determined that the tasks allocated to the complainant were reasonable and within their classification. After our independent assessment of the evidence, we came to the same view.

In relation to the sexual harassment allegation, the investigator:

• obtained and examined the relevant group chat records
• asked the complainant to identify which comments were offensive or that they considered sexual harassment
• assessed those comments in light of the legal definition of sexual harassment.

The investigator concluded that the comments in the documentation could not objectively be considered sexual harassment or meet the definition as outlined by the Australian Human Rights Commission. We also came to this came view and were satisfied there was insufficient evidence to support the allegations which had been made.

In relation to the claim that the delegate was biased and did not appropriately interpret the definition of what is sexual harassment. We were satisfied that the agency had relied upon the Australian Human Rights Commission advice regarding the legal definition of sexual harassment. This was the only definition which was relevant, and we found it was appropriately relied upon by the agency. We determined there was no evidence that the delegate has been biased in handling this matter.

We concluded the agency had complied with their bullying and harassment policy and that the outcome was fair and reasonable.

We were satisfied with the agency’s decision to issue the employee with counselling and a warning about making unsubstantiated complaints, which could be considered vexatious.

So what can we learn from this matter? This case study tells us:

• treat complaints about bullying and harassment seriously from the outset and address them in a timely manner
• have a thorough knowledge of your bullying and harassment policy and do what your policy says you should do
• ensure the complainant has the opportunity to fully explain their allegations and feel heard about their concerns
• identify all lines of inquiry, and possible witnesses which may be relevant to the complaint
• ensure employees subject to the complaint have an opportunity to respond to the allegations
• identify and consider any policies or guidelines which may be relevant in the circumstances, and consider these throughout your deliberations
• balance the evidence and make an objective assessment of the evidence in its entirety.