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Regarding bullying and discrimination investigations, a fact-finding exercise can help determine the necessary actions when conduct violates workplace policy. Therefore, if you’re unsure whether a complaint or issue warrants a formal investigation, here are common scenarios where an investigation may be beneficial.

Discrimination Investigation

Not all discrimination is unlawful. For example, a nightclub bouncer can refuse entry if you don’t meet their dress code. However, if the bouncer refuses entry based on a personal characteristic deemed ‘unlawful’ by law, that could be considered ‘unlawful discrimination.’

In the workplace, discrimination occurs when an employer takes adverse action against you because of attributes like race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibility, pregnancy, religion, political opinion, national extraction, or social origin.

Discrimination can occur at any stage of the employer/employee relationship, including during recruitment, when offering opportunities for training or promotion, or when selecting candidates for retrenchment or dismissal. It applies to full-time, part-time, casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods or tasks.

Penalty for bullying and discrimination

In Australia, the penalty for unlawful discrimination can be up to $63,000 for corporations and $12,600 for individuals. Additionally, Courts may impose other orders, such as injunctions, reinstatement, and compensation.

Bullying and Adverse Actions

The Fair Work Commission defines adverse action as unlawful if taken for a discriminatory reason. The Fair Work Act 2009 outlines various adverse actions. Adverse actions by an employer include:

Dismissing an employee

Injuring an employee in their employment

Altering an employee’s position to their detriment

Discriminating between employees

Refusing to employ a prospective employee

Discriminating against a prospective employee in terms of employment conditions

Sexual Harassment

Sexual Harassment Investigation

Workplace sexual harassment may result in penalties under federal, state, and territory laws, applicable to both companies and individuals for violations. Allegations of sexual harassment are grave, warranting a formal investigation by a skilled investigator. Furthermore, employers must consider internal policies, state workplace health and safety laws, anti-discrimination laws, federal human rights and equal opportunity laws, and federal workplace laws.

The legal criteria for sexual harassment, as per the federal Sex Discrimination Act, entail three key elements:

Unwelcome behaviour:

Conduct not solicited or invited by the employee, deemed undesirable or offensive.

Sexual Nature:

Any behaviour, language, or expression related to sexuality, sexual activity, or characteristics.

Reasonable Person Test:

Behaviour expected to cause offence, humiliation, or intimidation to a reasonable person in the harassed individual’s position.

A complaint of sexual harassment won’t necessarily be dismissed if the harassed person didn’t directly inform the harasser of its unwelcome nature. However, there must be indicators from the person’s conduct or surrounding circumstances that the behaviour was unwelcome.

Bullying and Discrimination Investigation

Workplace bullying constitutes repeated and unreasonable behaviour aimed at an individual or group, posing health and safety risks. Its impact on workers’ mental and physical well-being underscores the need for preventive measures and swift response. Bullying manifests in various forms, from psychological to physical, including exclusion from work-related activities. Hence, it’s subtlety can make detection challenging. Bullying and discrimination investigations can address this type of conduct.

Examples of Workplace Bullying

Workplace bullying encompasses abusive language, intimidation, belittling comments, practical jokes, and unjust criticism. Victims may suffer anxiety, depression, and physical ailments, with severe cases increasing the risk of suicide. Nonetheless, reasonable management actions taken appropriately do not constitute bullying. Workplace disagreements are distinct from bullying incidents.

Consequences of Workplace Bullying

Employees who have been victims of this type of behaviour could experience symptoms such as anxiety, depression and other physical side effects. In some cases, it can even lead to an increased risk of suicide. Employers have a duty of care to ensure the workplace is safe, which includes a requirement to investigate bullying complaints. Failing to address workplace bullying violates health and safety laws and incurs significant costs for employers. Estimates suggest Australian organisations lose billions annually due to decreased productivity, increased absenteeism, poor morale and legal expenses.

Investigating Workplace Bullying

Conducting bullying and discrimination investigations is crucial for fostering safe environments, demonstrating a commitment to addressing bullying allegations, and deterring frivolous complaints.
While internal investigations are an option, perceived biases or lack of expertise may undermine credibility. Engaging an independent investigator offers impartiality and ensures adherence to procedural fairness principles. At Risk & Investigative Services Qld, we employ a best-practice methodology to investigate various employee conduct issues, including bullying, discrimination, harassment, and misconduct. Our prompt, impartial, and professional approach allows informed decision-making based on facts.

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Contact our team to learn more or for free and confidential advice.