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A legal view: What should happen after a bullying claim is made?

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HC Online | 10 Apr 2014, 10:10 AM Agree 0
How HR responds to a bullying complaint can have just as big of an impact as the issue itself. HC gives a three-step guide for dealing with employee bullying complaints.
  • Guy | 10 Apr 2014, 10:32 AM Agree 0
    Thanks for the article, a tricky subject and certainly a bit of a minefield for HR practitioners. Aside from the investigation and resolution process, is there also now a requirement to go through a Public Interest Disclosure process?
  • Nancy | 10 Apr 2014, 12:15 PM Agree 0
    I would caution going straignt into an investigation on every allegation of bullying. Every case should first be assessed on its merit. Sometimes you might find that what the employee has alleged is bullying, turns out to be a reasonable lawful direction which they just do not like. Slow down, take a breath, and assess the information first. Mediation may be the first step you take.

    To raise it as a PID, it first must meet the requirements of a PID. It could very well be a PID if the complaint is made by a low level employee about superior. The superior could be using that imbalance of power in order to harass the lower level employee. In other circumstances, it may not meet the requirements of a PID.
  • Ben | 10 Apr 2014, 12:26 PM Agree 0
    I've found that the third step is vital, but may be seen as contrived and a token effort that doesn't address the core issues. I'd be interested in more info regarding appropriate team building activities that don;t necessarily mean people need to hug at the end, but understand the issues and get people back on task.
  • Linda | 10 Apr 2014, 12:41 PM Agree 0
    Mediation is not appropriate for substantiated allegations of bullying and harassment. Victims should not be required to mediate with a person found to have breached their employment contract, Code of Conduct or similar. We would not require this where, for example, an employee alleges another employee has engaged in fraud and those allegations are found to be substantiated. However, if the ongoing circumstances means that they will need to continue to work together, individual counselling may be useful in helping the parties to develop strategies that they can use in order to cope with their ongoing contact with each other.
  • Gerry | 10 Apr 2014, 02:19 PM Agree 0
    You forgot 1a. Verify whether the complaint is vexatious or has a substantial basis. I've dealt with many bullying accusations, and curiously, the majority were vexatious fabrications.
  • Sebastian Harvey | 10 Apr 2014, 05:35 PM Agree 0
    I like how the article highlights the post-investigation follow-up as critical to achieving a satisfactory outcome to an investigation. However, it suggests investigation should be the first option. This is not only heavy-handed but is contrary to most bullying procedures I see in organisations. HR practitioners need to be aware of the full range of resolution options, including mediation, conciliation and other coaching/training interventions as an alternative to formal investigations. A person lodging a formal complaint should do this having been informed of the other options. Of course, if the matter is serious and the complainant is seeking a disciplinary outcome then an investigation would be appropriate. But the article notes that the investigation outcomes are (at best) win/lose and suggests they can also be lose/lose. If the concerns are low level, would be difficult to substantiate and/or the complainant would like to resolve the issue without breaking their working relationship, HR needs to be able to offer other strategies that could achieve the optimal outcome for all stakeholders.
  • Paul Anthony Bernard | 11 Apr 2014, 12:13 AM Agree 0
    Another issue that has come up in several major legal settlements is that the organization was not even aware of a harassment issue as the employee felt there was not effective way to communicate it to the management. The courts are upholding the 'ought to have known' view for the organization.
  • Linda | 12 Apr 2014, 11:36 AM Agree 0
    Gerry, the first line of my post specifies 'substantiated allegations'. Also, I am not sure that the complainant should have the right to dictate what process is to be followed, once that person has brought a complaint of bullying or harassment to the attention of management/HR. Before anything can be done, some level of investigation needs to be undertaken, in order to determine whether the complaint is, in fact, about conduct that is contrary to organisation policy or 'vexatious'.
  • Chas | 19 Apr 2014, 11:45 AM Agree 0
    I don't disagree with the overall view but as an experienced workplace mediator, I prefer mediation prior to investigation. Investigations look at events retrospectively and tend to cause the employees to be defensive and "dig trenches". Mediation is not only future focused but the process explores blame free options. If the working relationship are to continue it may be better to give the employees the opportunity to find a solution themselves, rather than impose an outcome based on an investigator's recommendations. Mediation also enables to parties to address the behaviours directly rather than through a third party. This results on the part have some direct accountability to each other.
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