How should you respond to a complaint of misconduct?
When an employee raises a complaint or allegation of misconduct, the organisation needs to respond promptly and appropriately. But that does not necessarily mean immediately launching a formal investigation.
Misconduct can take many forms, including bullying or harassment, sexual harassment, discrimination, serious breaches of a code of conduct, inappropriate or threatening behaviour, fraud, dishonesty or other serious conduct concerns.
The right response will depend on the circumstances. The challenge for employers, managers and leaders is knowing what needs to happen next while maintaining fairness, confidentiality and appropriate support for everyone involved.
Take the complaint seriously without prejudging the outcome
A complaint is an allegation, not a finding.
Employers need to take concerns seriously while avoiding assumptions about whether the allegation is substantiated. Responding too quickly with a predetermined view can create risks for both the organisation and the people involved.
There may also be immediate issues that need attention, including the safety and wellbeing of workers, the possibility of further harmful behaviour, conflicts between people involved or risks to the organisation.
For sensitive or serious allegations, getting appropriate advice early can help an employer determine how best to proceed.
Consider what response is appropriate
Not every workplace complaint requires the same response.
Depending on the circumstances, an employer may need to consider:
preliminary fact-finding to understand the issues and determine what response may be appropriate
a formal workplace investigation
mediation or a facilitated discussion where the issue is suitable for that approach
performance management or a disciplinary process
other action to manage workplace or safety risks.
These processes serve different purposes. Choosing the wrong approach, or moving into a formal process before the issues are properly understood, can make an already difficult situation more complicated and expose all parties to a number of risks.
Procedural fairness matters
Whatever response is chosen, procedural fairness should be an important consideration.
People involved in a workplace complaint should be treated fairly and respectfully. This includes avoiding unnecessary delays, giving relevant people an appropriate opportunity to respond to allegations, maintaining appropriate confidentiality and communicating clearly about the process.
The process should also be appropriate to the seriousness and complexity of the matter.
For employers, this is about more than following a policy. A poorly managed complaint can damage trust, workplace relationships and culture, as well as creating legal and safety risks.
Read What is procedural fairness? >
Don't overlook the workplace risk
A complaint can also be a warning sign about a broader workplace issue.
Bullying, harassment, sexual harassment, violence, conflict and poor workplace relationships can be psychosocial hazards. Under the model WHS framework, organisations must manage psychosocial risks, including by identifying hazards, implementing appropriate controls and reviewing whether those controls are effective.
This means an employer may need to look beyond the individual complaint.
Is there a pattern of similar behaviour? Has the issue been raised before? Are there weaknesses in workplace systems, leadership, reporting arrangements or workplace culture? Has the organisation adequately managed the risk?
For sexual harassment in particular, employers have obligations to take reasonable steps to eliminate it as far as possible. How an organisation responds to complaints can also be relevant to whether it is meeting those obligations.
Read about our psychosocial risk assessments >
When should you get external support?
Managing a workplace complaint can be difficult, particularly where the allegations are serious, sensitive or contested, senior people are involved, there may be a conflict of interest, or the organisation does not have the appropriate experience or independence internally.
External support can help an employer assess the circumstances and determine an appropriate way forward.
That may involve preliminary fact-finding, an independent workplace investigation, mediation, facilitated discussions or other workplace conflict support.
If an investigation is appropriate, an independent investigator may also provide greater confidence that the matter will be handled objectively and professionally.
Read When to hire an independent workplace investigator >
Getting the next step right
A complaint of misconduct should never simply be put in a drawer, but neither should every allegation automatically trigger the same process.
The priority is to understand the issue, consider the risks and determine an appropriate and fair response.
Workplace Plus can support employers, managers and leaders to work through the appropriate next steps when workplace conflict, complaints or allegations arise.
For more information, contact us today.
