Receiving a bullying complaint from an employee and working out what to do next can be stressful for an employer. Then, to add another layer of complexity, what happens if the bullying complaint is made vexatiously and without a legitimate reason?
If an employee makes a vexatious complaint about workplace bullying, steps will need to be taken to manage the unique risk of the situation. These steps must be taken in addition to the employer’s ordinary complaints investigation process, corresponding with fulfilment of all ordinary employer obligations applicable to an employee.
Failure to follow the correct procedure, afford procedural fairness to an employee and to satisfy all other applicable obligations in this instance can otherwise prove risky for an employer. This article explains what a vexatious complaint is, how to identify one, and the steps employers should take to respond appropriately.
What Is a Vexatious Complaint?
A vexatious complaint is one made in bad faith, without a genuine belief that the conduct occurred, and typically with an ulterior motive.
Common examples include a complainant attempting to deflect attention from their own misconduct, seeking to gain leverage in a workplace dispute, or targeting a colleague out of personal animosity rather than any genuine concern about their behaviour.
It is worth distinguishing a vexatious complaint from a malicious complaint. While the terms are sometimes used interchangeably, a malicious complaint implies a deliberate and calculated intent to cause harm to the person being complained about.
A vexatious complaint focuses more broadly on the absence of any legitimate basis for the complaint. In practice, both are serious matters that require careful and procedurally fair management.
Neither term is formally defined in the Fair Work Act 2009 or the model WHS laws, but both have been addressed in decisions of the Fair Work Commission. Understanding the distinction matters because it shapes how an employer frames its findings and any subsequent disciplinary response.
How to Identify a Vexatious Workplace Bullying Complaint
It is important to be able to identify when a complaint is vexatious, though this is not always immediately obvious. A vexatious complaint is one that is falsely made, in bad faith and without evidence. Notably, this is different to when a person makes a complaint and genuinely believes they have been treated poorly despite a lack of evidence to support the claim.
Regardless of any preconceptions about a complaint, each complaint received needs to be treated seriously and a proper investigation conducted in accordance with employer obligations and workplace policy.
If this is not done and a complaint turns out to be true or partially true, this may cause any existing issues to escalate, amount to an employer’s failure to meet their workplace health and safety (WHS) obligations and constitute a breach of the workplace policy.
Safe Work Australia provides guidance on employer WHS obligations in the context of workplace bullying, including what constitutes a reasonable management action as distinct from bullying behaviour. For more information as to the specifics of employer WHS obligations, please visit Coleman Greig’s Employment Law and WHS page.
Conducting a Procedurally Fair Investigation
Employers should engage in a procedurally fair investigation process in response to all bullying complaints, regardless of any assumptions about the complaint being vexatious.
The employer should commence by advising the person making the complaint that if it turns out to be baseless or vexatious, they may face disciplinary action up to and including termination of employment.
If somebody withdraws their complaint after being advised of this, this must not be used as a reason to single that person out or to punish them.
Rather, it should be treated as a sign that there may be some issue in the workplace involving that person, which should be monitored and paid close attention to by management to avoid escalation of issues or spread to other colleagues in the workplace.
The following list sets out the key response options an employer should work through when investigating a workplace bullying allegation that may be vexatious. These include:
- Whether the behaviour complained about constitutes bullying. If the complaint is vexatious, it is less likely that the conduct will amount to bullying. It may be that the person making the complaint is actually the person performing the bullying. Appropriate disciplinary responses to this are explored below
- Whether there is a risk of ongoing harm which requires immediate measures. Similar to an ordinary bullying complaint, this requires consideration of the number of parties involved, the seriousness of allegations, the current structure of the workplace and potentially problematic current working arrangements
- Whether any other relevant issues require further investigation and/or understanding. This includes, for example, any misconduct by the person making the complaint, which they might have tried to cover up with the false bullying complaint
- Whether it is appropriate to manage the issue internally or refer to an external third party. Most vexatious bullying complaints will be manageable internally unless they are prolonged or very serious; and
- Whether the report should be progressed to a formal investigation or managed informally. This must be determined by the employer’s discretion according to the nature of the complaint made
Employers should also be aware that a complainant who is dissatisfied with the outcome of an internal process may seek to lodge a stop bullying application with the Fair Work Commission. Conducting a thorough and procedurally fair internal investigation is the most effective way to demonstrate that all reasonable steps were taken to address the complaint.
Responding to the Findings of a Vexatious Complaint
If any of the allegations made are proven during the investigation, the response should be:
- reasonable in all the circumstances
- proportionate to the problem identified
- in keeping with the employer’s policies, such as the anti-bullying policy and dispute resolution policy
For example, if a complaint alleged multiple counts of bullying but the investigation only uncovered one slightly inappropriate email, this might warrant a verbal warning to that employee regarding their email etiquette. However, it would not be grounds for termination. An unreasonable and disproportionate response such as this would create a significant risk for the employer that the employee might successfully claim unfair dismissal.
Alternatively, an investigation into a vexatious complaint may expose that the complaint was vexatious or highlight a new, separate issue.
In respect of the latter, for example, the accused person may be found to have said something constituting a potential breach of their confidentiality obligations rather than something which constituted bullying. In this instance or where the original complaint is found to have been made vexatiously, an employer needs to instigate an additional, separate process to investigate this new issue.
Although the bulk of the investigation may have already been carried out to reach this point, an employer will need to engage in further consultation with the relevant employee in accordance with their Fair Work obligations. This will involve:
- Inviting the employee to attend a meeting
- Giving the employee the opportunity to bring a support person to that meeting
- Providing the employee with a written statement of findings at that meeting
- Giving the employee a chance to respond to those findings
- Considering the employee’s response to the findings
- Determining and carrying out an appropriate response
When providing a written statement of findings to an employee considered to have vexatiously made a bullying complaint, the statement will need to set out the sequence of events to date, including the date the complaint was made, the nature of the complaint, the process undertaken to investigate the complaint, the findings and the reasons for those findings.
Crucially, it will need to state that evidence was found to suggest that the bullying complaint was made vexatiously, and that it was taken seriously by the employer.
In these circumstances, employers must be mindful that this process may elicit a negative reaction by the employee, such as anger or frustration.
It is important to remember that even though the employee has been found to be in the wrong, an employer still has an obligation to take all reasonably practicable steps to prevent the risk of harm to the health and safety of the employee.
This may look like providing the employee with a referral to a counselling or psychological support service, linking the employee to an Employee Assistance Program (EAP), or adjusting the employee’s work roster to minimise interactions with certain other people at work.
Although it will ultimately be the employee’s decision if they take up any options for support, by having an honest conversation about the kind of support the employee may need, an employer will be fulfilling their obligations and minimising the risk of escalation of related issues within the workplace. Guidance on employer protections and obligations in this context is also available from the Fair Work Ombudsman.
Key Lessons for Employers
A vexatious complaint will often carry greater complexity and risk for an employer compared with an ordinary bullying complaint. In response to this, an employer must still uphold their WHS obligations, follow applicable workplace policies and afford the relevant employee procedural fairness.
Mismanagement of a vexatious complaint can drastically escalate a problem and have wider, negative workplace implications. Most importantly, it can amount to that employer’s failure to meet its obligations, for which liability may ensue.
If you have a query relating to any of the information in this piece, or you would like to speak with a lawyer in Coleman Greig’s Employment Law and WHS team with regard to management of a workplace bullying complaint, please do not hesitate to get in touch today.
