Research by Matrix Recruitment shows 88% of workers say bullying and harassment remains a serious problem in Irish workplaces. Handling allegations of bullying and harassment is one of the most testing parts of the HR role, particularly when emotions are high and everyone is watching what you do next. Mishandling complaints can escalate issues, harm morale, and even trigger a tribunal.

Dr Gerry McMahon – an acknowledged national expert in people management who has over 35 years’ experience as a workplace investigator (covering bullying, harassment, disciplinary, dismissal and grievance issues). Drawing on this extensive experience, Gerry explores real-world investigation scenarios, highlighting where organisations commonly go wrong and what good practice looks like in the eyes of the WRC. Gerry is also a highly experienced trainer, negotiator, facilitator, mediator, arbitrator and team builder, working across a wide range of employment sectors.

Hosted by Julie Holmes from Legal Island, she ensures you get the practical guidance you need. And you will leave with a clearer sense of what the WRC expects, and reassurance you do not have to be perfect, but what you and your organisation need to do to demonstrate you have been fair, consistent and thoughtful.
 

Transcript:

Julie: Good morning, everybody. Welcome to our webinar. My name's Julie, and I'm part of the Knowledge Team at Legal-Island, and I want to thank you for joining us today. 

Research by Matrix Recruitment shows that 88% of workers say bullying and harassment remains a serious problem in Irish workplaces. And for HR professionals, we've all been there, and we know that handling these allegations can be one of the most challenging parts of the role, especially when emotions are high and every step that you're taking is being closely watched. 

Today, we're going to look at handling bullying and harassment complaints and really what the WRC expects based on some recent case law. 

Our speaker today is Dr Gerry McMahon, and Gerry is an acknowledged national expert in people management with over 35 years' experience. That's because he started when he was only 5! He's the MD of the HR and training advisory company Productive Personnel, and Gerry also has an extensive range of books and articles published by "The Irish Times", "Sunday Business Post", and the "Irish Independent". He's also an expert commentator on HR and employee relations for RTE. 

If you're one of our subscribers, you'll also know that on our Knowledge Hub, Gerry writes comprehensive how-to articles across a wide range of HR and employment law topics, which are extremely helpful in situations like we're going to be discussing today. I feel very confident in saying that we are in safe hands for the next 45 minutes. 

I'd also like to just take a moment to thank our sponsor, HRLocker. HRLocker is an all-in-one HR software platform that simplifies people management for growing businesses. From leave requests and time tracking to performance reviews and employee records, it brings everything into one easy-to-use system. And as your team grows, scaling with HRLocker is scaling with confidence. 

Gerry has kindly agreed to share his slides that he's showing today, and you will get those when the recording is sent out to you as well. That should be within a few days. 

If you do have any questions, though, during the webinar, you can add them to the Q&A box. It's the box with a little question mark in it up on the right-hand side. We'll do our best to try and get through as many of those as possible. 

But to try and set the scene and see if Matrix Recruitment has it right, we've got a couple of poll questions for you, and my colleague Gosia is going to share the first one. 

The first question is are you among that 88%? Have you ever experienced or witnessed bullying or harassment in the workplace? A is yes, B is no. Gerry, I think we're getting a clear sense already of what way things are going with the yeses storming ahead of the nos. 

Despite the fact that we've got the WRC's Code of Practice, despite we've got the legislation about dignity at work, about harassment, about protected characteristics, we can see that it is still a large issue in the workplace. And again, as HR professionals, it is fraught, and we'll go through some of those pitfalls today that are common and try and help you to deal with things effectively and fairly as well. 

Thank you very much, Gosia. I think we can say that the yeses have it at 77%, while the no’s are only at 23%. 

Our second question, then, is really aimed at you as HR professionals. What do you actually find is the biggest challenge when you're trying to handle either bullying or harassment complaints? 

Is it the lack of clear policies or procedures? So, you may have the framework but find that when you're actually trying to use it in practice, you're dealing with people, they don't always follow policies and procedures, and so you're trying to deal with that. 

Would it be fear of legal repercussions? Again, we'll talk about some of those today, and Gerry's going to talk you through some of the potential issues that you might face. 

Is it about employee reluctance to speak up? We were talking about the danger of the quiet word, or "I don't want to make a complaint, but I'd just like to let you know". 

Or is it about managerial inexperience or possibly bias? Maybe they're part of the issue as well. 

Just take a moment and let us know which of these would be the biggest challenge for you. 

Looking at the results so far, you're not actually too worried about the legal repercussions, which is good. But again, there are still lessons to be learned when we go through the case law today. 

Lack of clear policies and procedures, everybody seems pretty familiar with those. 

I see that the biggest issue, Gerry, which may not surprise you considering your role in your business in an advisory capacity, could be managerial inexperience or bias. So perhaps a reluctance to wade in and find that they're taking the wrong action or making things worse or maybe going the opposite way and going too gung-ho and not actually exploring things well enough? 

Gerry, what do you think of that result? 

Gerry: Very interesting. We'll be quoting that going forward, Julie. But it does fit reality. And thanks to the attendees for their voting on that to inform us. 

Julie: Gerry, I will hand over to you. You've got slides, which, as I said to everybody, just a reminder that Gerry has offered to share those slides. You will have them for reference afterwards if you want to look up some of the cases. 

I will pop back on towards the end of the webinar. We'll go through some of the questions that you have. You can ask Gerry about anything that he's covered or anything else that may be happening in your workplace. We'll see you again very soon. 

Gerry: Well done, Julie, and thank you very much. As you'll know, folks, Julie Holmes is the Knowledge Partner at Legal-Island, and I'd like to thank her for her generous introduction, for setting up the webinar for us this morning, for choosing three very good, interesting cases for our consideration, and finally, for extending an invitation to yours truly. 

And can I also thank Gosia, who is in the background working away vigorously on the IT side of the house? 

I was asked last year by a client to run a training course on presentation skills, and whilst preparing for it, I came upon a gem which said, "If you're making a presentation, what you must do is at the beginning, tell them what you're going to tell them. Then tell them. And after that, tell them what you've told them". 

So I've taken that to heart, and that allows me to move to the first slide. And the first slide . . . thank you, Gosia . . . is how do you get it right? In other words, I'm cutting to the chase here, and I'm saying if there's an issue with bullying and harassment and you're before a third party, what determines the outcome? What does the Labour Court base its decision upon? What does the Workplace Relations Commission base its decision on? 

There are three factors: 

Firstly, you need an up-to-date, comprehensive, and available policy or procedure.  

Secondly, you need to ensure that there were briefing sessions or training provided on that policy and procedure.  

And thirdly, common sense, if there's an allegation or allegations, you act in line with the aforementioned policy or procedure. 

So moving to the first case, which Julie has brought to our attention, this was a case of harassment on the grounds of race. It gave rise to an award of €7,000 to an employee in a hotel. The award was reduced because the employer was able to show that they had attempted an informal initiative to resolve the matter. 

So what happened? Well, what happened was that there was racial abuse from a fellow employee in the hotel's employee accommodation area, and the woman who was subjected to it reported it. 

However, she did not make an official complaint. So the organisation decided in its wisdom, or lack thereof, not to do any investigation, and it said, "Well, the employee resigned anyway, so we couldn't do an investigation". 

Notably, in evidence, it was discovered that no training had been received on the subject by the employees either before this incident or after. 

So what that gave rise to in this particular case was a scenario where firstly, interestingly, the employee complained to the WRC but complained under the Equal Status Act. It didn't matter a jot. The WRC, recognising that the complaint form is not a statutory document, allowed her to alter it to bring the case under the Equality Act. 

She was able to make a prima facie case. In other words, she was able to raise a presumption or an inference of harassment or discrimination in the category of verbal racial harassment. 

It also transpired in evidence that there was no handbook on the matter for staff, and interestingly, there was no follow-up action advising staff on the subject. 

So in conclusion, the WRC made the point that there was racial harassment. Employees are entitled to feel safe and secure, but in this case, the respondent failed to provide adequate training or communicate effective policies/procedures in respect of bullying or harassment. Lesson learned. 

And that allows us to move on to case number two, which was selected by Julie, and this was where an individual was dismissed for harassment. So the flip side of the coin. 

This employee sent what were described as vulgar and disgusting messages on his female colleague's phone to the colleague's husband and was dismissed for it. In the course of the evidence presented at the WRC, the employer noted that the exact same thing had happened before with another work colleague, but nothing was done about it. When they got the investigator to look at the most recent incident, it was categorised as having a "high severity of sexual harassment". 

So that gave rise to a scenario to a disciplinary panel being set up who noted the previous incident, and even though it wasn't investigated or didn't give rise to any type of warning, it did influence their dismissal decision. 

Interestingly, the adjudication officer found there was no need for an investigation because the employee admitted the act. Furthermore, the WRC concluded that it was not the investigator's role to categorise the offence, as mentioned in the last slide, having a high severity of harassment. 

And finally, it was concluded the disciplinary panel should have heard the complainant's defence or case. In other words, any mitigating circumstances that they may have which brought to attention. 

So what this gave rise to at the WRC was a conclusion that, firstly, the company failed to inform the employee of their right to appeal. There was no consideration of a sanction short of dismissal. The procedure itself was flawed and unfair, and it gave rise to an award of €22,500. And you'll note that that was after a deduction of 70% because of the contributory negligence of the accused party. 

Moving on then to Case 3, we have another incident of sexual harassment. This arguably is the most interesting of the three cases selected by Julie. The hospital pharmacist was sexually harassed. It was concluded by the WRC that reasonably practicable steps to safeguard the complainant had not been taken by the employer. That is, the accused party wasn't suspended. And after the incidents, the complainant formally complained, but she had to move whilst the alleged harasser remained in situ. 

And of course, the accused party, the harasser, apologised using the "just banter" defence. So the "just banter" defence of "Ah, sure, I was only having a bit of craic" doesn't stand up. 

As it's pointed out in the Code of Practice pertaining to harassment, if there is a complaint, management should stand back and think carefully, including considering alternative line management structure, a change of workstations, or requesting the complainant or the alleged perpetrator to stay at home on full pay. The bottom line is the complainant should not be relatively disadvantaged for making a complaint. 

Moving on, a good example of this transpired relatively recently when the WRC awarded €90,000 for harassment and penalisation because the employer failed to undertake a proper investigation and "didn't place the alleged harasser on suspension with pay or move him to another area until the investigation process was complete". 

So in this particular case, the conclusion was that, amongst other things, it took more than a year to investigate. As the saying goes, justice delayed is justice denied. 

It gave rise to an award of €87,000 for the effects of the harassment, and interestingly, the adjudication officer, Conor Stokes, directed the employer to delete the complainant's sick leave record that was associated with her absence relating to the harassment offence. 

So if we can stand back from those three cases, we do know, as Julie correctly pointed out, that both the Central Statistics Office and Matrix Recruitment tell us that this bullying harassment practice is fairly prevalent. About one in three of the national workforce claim to have experienced this malpractice. 

Moving on, I should distinguish for you between bullying and harassment, because even though the terms are used interchangeably, bullying is repeat behaviour, and harassment once, maybe once too often. 

And unlike bullying, harassment is covered by the statute law under the Employment Equality Act. So the norm is that if somebody is bringing a claim for harassment, they would bring it under one or more of the nine grounds. 

I should also flag for you that when parties are bringing a claim of bullying, one of the issues that I like to remind them of is the fact that back in 2017, the Supreme Court got their hands on this topic and defined bullying as behaviour which was deemed to be "outrageous, unacceptable, and exceeding all bounds tolerated by decent society". 

The common consensus is that they have raised the bar, making it even more difficult for people to successfully process a bullying claim. 

Moving on, I am aware that many people, perhaps of a cynical hue, say, "Ah, bullying, harassment, the only reason people complain is because they want money". So if you're of that disposition, and I note the high score on "managerial indifference and bias" earlier, you might want to record that Gill Switalski secured a whopping £19 million in London Town back in 2009 when her claim was upheld by the Employment Tribunal that she had been bullied and unfairly scrutinised by her line manager. 

We don't have any €19 million awards in this jurisdiction, but moving on, I can say there have been some sizeable ones. The one that really sticks out for me is, according to the red tops, Sergeant Maurice McCabe got a pay-out of €5 million associated with bullying for his whistleblowing. And some of you will recollect tribunals of inquiry and Dublin Castle and whatever you're having yourself. 

In that regard, Maurice's comment at the heel of the hunt, I thought, was very chastening. "If I'd known then what I was facing, I'd never have done it. Never. Ten years of hell". 

So with that in mind, folks, I should flag for you also that managers are very often making the point that, "Oh, I was afraid to ask somebody to do something because every time I ask the employee to do something . . . and I'm only trying to get a fair day's work for a fair day's pay, but every time I ask them to do something, they turn around and they say, 'You're bullying me', or, 'You're harassing me'." 

So let's nail this one, because as far back as 1999 in a Glaxo Wellcome case, the Circuit Court was unequivocal, pointing out "it is the manager's duty to manage, so allegations of bullying cannot, indeed should not, mask unsatisfactory work performance". 

And this is something that I've published on because that Circuit Court decision has been reinforced by both the High Court and the Supreme Court. Feel free to come back to me if you're attempting to source that publication on the Employment Law Hub at Legal-Island. 

So that brings us to the case for a reminder about the Code of Practice on harassment, which makes the point that if you're a manager and you become aware of harassment, then there is a duty on you to act even in the absence of a complaint. 

And if you think I'm only codding, moving on, we had the scenario less than a decade ago in Uber where an employee posted allegations of sexual harassment on her blog. That prompted an investigation, and it resulted in 20 dismissals of managers who had ignored it. 

So I think it would now be useful for me to move on to the issue of investigations. This is an area that I've been actively involved in for a number of years. Investigations can be tricky, and the bottom line is it is common for claims in the area of bullying and harassment to succeed because the investigation was flawed. 

For example, we have the case of An Post, where an operative was awarded almost €54,000 for the effects of sexual harassment. Why? Because the investigation fell very short of what is set out in the code of practice. 

So there is a code of practice on harassment, and God help us, there's also a code of practice on bullying. And when it comes to investigations, what we find is that, as it says in the sexual harassment one, it's essential that the principles of natural justice be adhered to. And as you can see on screen, the Code of Practice on bullying makes exactly the same point. "The accused will be afforded natural justice and treated with fairness". 

And if you don't believe me, we'll move to the next slide where the point is well made in the case where the alleged bully was unfairly dismissed, giving rise to a record award of almost a third of a million, despite the employer claiming that they had conducted a scrupulously fair investigation. Clearly, the Workplace Relations Commission did not agree with them. 

So that brings us to the question of, "Well, how are you supposed to conduct an investigation?" I'm going to cut to the chase here, folks. I'd say there are eight golden rules, and I'm classifying them as the rules of natural justice. I won't apologise for that, though I know some members of the legal profession wouldn't entirely agree with me. 

What are those rules? Well, the first one is that if an individual is accused, they should know the purpose of the proceedings, and they should also be furnished with the case or the evidence against them. 

Related to that, they should be afforded time to prepare their response, but there should be no undue delay with regard to the conduct of the investigation. Very often there is an undue delay, and that's hugely problematic. 

People are entitled to a right of reply. 

People are also entitled to a right to representation, normally short of legal representation. 

They're entitled to know what witnesses are saying. 

Indeed, I recently had an investigator ask me, "I've already interviewed the witnesses. I don't want to go back to them. What should I do?" to which I could only say, "You must go back to them. You've interviewed them, you've shown the complainant and the respondent what they've had to say, and you've had comments on it. That has given rise to queries, and you need to go back and reinterview the witnesses". 

One is also entitled to a right of appeal, and you can't be a judge in your own cause. A number of employers have made this mistake where they've had an individual playing two roles in the investigation process. For example, there was the local authority where an individual was a witness who was also a representative. And I can think of more extreme examples, but I'll spare you them. 

And finally, the punishment should fit the crime. Again, that one is often overlooked. 

So moving on, I think in that regard it is worth noting the incident of the store manager who was awarded €15,000 because it was concluded that he had been unfairly dismissed. Why was he dismissed? Well, he'd been going around hugging staff, engaging in inappropriate behaviour, physically touching staff. However, innocent until proven guilty. The verdict was "a fair investigation forms the cornerstone of all fair dismissals, but in this instance the investigation was deeply flawed, defunct, and unreliable". 

Now, very often indeed, when I was serving as an adjudication officer in the Workplace Relations Commission, people would come before me and say, "Ah, Gerry, I was just having the craic, and I'm a good man for the craic", and so on and so forth. Suffice to say that as time moves on, it is increasingly less secure as a defence. 

Probably the best example that I can bring to your attention involved an incident in the financial services sector. So, in this case, we had a work colleague alleging that the complainant had referred to a third employee, Richard, as an N. Just to clarify, the complainant was dismissed because of banter. The reason that she was dismissed is she had referred to a third employee, a colleague, Richard, as an N, and you can work out that the N is a racial slur, a comment on somebody's colour. 

And interestingly, the complainant said, "Ah, listen, it's part of the culture here. Sure, we do banter all the time". 

What I thought really notable in this incident is that the object of the banter, that is our friend Richard, agreed with her. He agreed with the dismissed employee, and he stated that the complainant, his manager, sure, she didn't mean any offence. 

It didn't matter a whit. As far as the WRC and the employer were concerned, the dismissal was deemed proportionate to the conduct. 

The learning point there, I would suggest, is that it doesn't matter if you think it's only craic. In fact, it doesn't matter if the object of your craic also thinks that it's a good bit of fun. Where organisational standards pertain, it is the prerogative of the employer to determine what constitutes appropriate and inappropriate behaviour, albeit subject to the reasonable term. 

So folks, as they say, at the top of the show, I think the threat was that I would tell you what I would set out to tell you. I've tried to tell you, and now I'm going to try to remind you that what I've told you is if there is a complaint of bullying and/or harassment, an employer will normally be exonerated if they can show three things. 

They had a policy which was up to date, comprehensive, and available to staff. And even Eddie Rocket's blew that one. They had a policy, it was up to date, and it was comprehensive, but they failed to make it available to the two new female staff who were involved in a lesbian relationship and were taunted by their colleagues. 

Secondly, there should be briefing and training provided on the policy. Numerous employers have got done on this, including, would you believe, Costa Coffee. 

And finally, thirdly, as I mentioned, it is very common for complaints to be upheld because of a poorly conducted investigation. So third point is if there's an allegation, you act on the allegations in line with the aforementioned policy. 

So, folks, before we move to the questions, with reference to same, I would like to flag for you that, again, Julie has done an excellent job on Legal-Island's Employment Law Hub. And if you take a check there, you will find articles from my good self that are relevant to this topic. 

There's an article there on the role of the contact person under the bullying code. There's an article also on the role of the nominated person under the bullying code. You will also find an article on the distinction between performance management and bullying, all the way from the Circuit to the Supreme Court. 

There's an article there on banter, which takes you through a whole range of cases and what issues or criteria were applied by the WRC and the Labour Court. You'll also find an article there on how to conduct an investigation in this and related areas. 

And finally, I see an article that went out less than a year ago entitled "How to Avoid Bullying and Harassment Claims". So you should find those useful, folks, in the event of you want to follow up on the topic. 

Thank you very much for your patience, Julie, and I'm happy to hand it back to you. 

Julie: Thanks very much, Gerry. I think everyone will agree with me that Gerry just provides fantastic insights in a down-to-earth, practical way, and you just feel like you could approach them with any situation. 

Gerry, you're getting a couple of reactions there of applause, thumbs up. So I think that everybody that's watching at the moment has really appreciated that. Very down to earth as well. Thank you very much, everybody. 

We have a couple of questions in. One of the things I did want to just touch on is that Gerry did mention about the importance of training, and we saw the risk of that in one of the cases that Gerry first spoke about. And really, just want to mention that Legal-Island, aside from having articles such as Gerry's, we also have Legal-Island's Workplace Bullying eLearning course, which is there to help organisations promote dignity and respect at work while meeting their obligations under the codes of practice on the prevention and resolution of bullying at work. 

And we have our eLearning client executive, Glen Bell, and his email address is glen@legal-island.com. I know that Glen would be very happy to speak to you and find out if you wanted to learn a little bit more about that eLearning package, what it covers.  
It's aimed at all staff, and I believe that there's one specifically for managers as well. You can talk to him a little bit more about that. 

But in the meantime, Gerry, we've got a few questions. There was an interesting one, and I'm going to approach it first. It's about if a witness wishes to remain anonymous, all of this case of, "I'm happy to try and help, but I just want you to leave me out of it as well". 

So the question is if a witness wishes to remain anonymous, how do we balance protecting their identity while still ensuring transparency and procedural fairness for the accused when sharing statements? 

Gerry: Yeah, you've no easy questions there to start off with, I assume, Julie. Yeah, that's a good one. That's tricky. 

Now, just before you move to that, you mentioned about the excellent resources that Legal-Island has in respect of training and development. I think in that context it's worth flagging for people that there was a case recently before the WRC involving a golf club. The WRC fined the golf club heavily, making the point that unfortunately it's very common for employers to neglect the training facility. And the point that was made by the WRC, "employers need to make provision in their annual budgets for ongoing HR training". 

So moving to the question . . . 

Julie: Gerry, that was good, because one of the questions was about how often should you should actually be supplying that training. So that just backs it up in that you should be refreshing training annually. 

Gerry: Yes, indeed. 

Julie: I believe that there have been cases where people have had training, but it's gone on to two years, three years, and obviously that isn't always suitable. 

The next question is about witnesses who wish to remain anonymous and about balancing protecting people.  As you said, employers also need to ensure those objectives of natural justice and being fair to the alleged perpetrator as well. 

Gerry: Yes. In that regard, I think the starting point would be that if somebody is making an approach and saying, "There's bullying going on, but I don't want any issue made of it", I think that is particularly problematic for a manager. 

I think in such scenarios, the best thing to do is to fast forward and to project how you would cope with that question if you had to take the stand in court and you were being confronted by an awkward, abrasive, and aggressive senior counsel. 

So my advice in such scenarios would be that the first thing that you would do is that you would issue an email to all affected staff reminding them about the policy, and that could be followed up by an in-person briefing session. 

And then I think that what one would have to do is to talk to the affected employee to see if it has given rise to any change in the inappropriate behaviour. If it has, happy days. If it hasn't, then I think that one would need to sit down with the accused party, even if no names are being mentioned, and to have a discussion with them about did they see the policy, what did they think of the policy, would they ever be concerned about a formal allegation or accusation being made against them that might land them in the High Court, and such like. 

At the heel of the hunt, you're preserving the anonymity, you're not breaking confidentiality, but you're also able to show, should push come to shove, that you have actually done something about it. 

I should also flag in that context that I remember whilst conducting an investigation having a difficulty in that regard, in that there was a nominated witness and she refused to meet with me. 

I did eventually get a telephone conversation with her where she reinforced the point that she would not meet me as the investigator. So I flagged for her that I completely understood her dilemma, but made the point that she was an important witness, that the case could turn on her evidence, and warned her that should push come to shove and the matter land in front of the Workplace Relations Commission or the Labour Court or any of the superior courts, she could be subpoenaed, and it would make for a much more intimidating and hostile environment. Whereas by dealing with the matter internally, there would be a lot less stress and hopefully problems for her. And fortunately, she agreed. 

So, in that context, in terms of somebody approaching you on a confidential basis, I think it is important to recognise, to adhere, and to stick to that confidentiality, but that doesn't mean that you do nothing. 

Insofar as possible, you'll preserve the anonymity of the witness, but you do have other options in terms of addressing the matter. I think the key is going back to the complainant to see how they want the matter progressed. 

But I'm not convinced that a witness, should push come to shove, can enjoy the protection of anonymity, because, as I say, particularly further to the Supreme Court's Zalewski judgement, the Supreme Court can subpoena people and get evidence on oath. And I'd say risky business to be telling lies under oath. 

Julie: Yes, I think that would open up a whole other can of worms, wouldn't it, Gerry? 

Gerry: Yes, indeed. 

Julie: Great. And I hope that that helped the person asking that question. 

Now, Gerry, another kind of common scenario, but I don't think the question is any easier. And this person's asking, "Can you provide some guidance on how to deal with a situation when the alleged bully makes a separate complaint against their accuser, but this happens, of course, halfway through the investigation?" So maybe as things have started and the person realises what's happening. 

"Would you amend the terms of reference to look at both allegations, or would you wait until the first process was complete and then commence a second investigation?" 

Gerry: That's another very good question, a real cracker. This frequently happens, and to be perfectly honest with you, I think that it often happens because one party is trying to muddy the waters. It's a good question because it allows us to reflect before the waters get muddied on what the best way to handle it would be. 

My advice in that respect is that you have an investigation underway, and I would proceed with that, and I would not tamper with the terms of reference. Then I would take the accusation from the accused party, and I would deal with it separately, and I would deal with it under the new Code of Practice on Bullying. 

Interestingly, under the new Code of Practice on Bullying, there is much greater weight given to management's discretion with regard to whether they proceed to a formal investigation. In other words, management do have the prerogative of saying, "There really isn't a case here", and not proceeding to a formal investigation. 

But you need to keep a record of that decision and how you reach that decision, because yet again, if push comes to shove, you want to be able to take the stand and clearly, coherently, comprehensively, and convincingly explain why you didn't proceed. 

So that would tend to be my approach on that. But the bottom line in terms of the question, I keep them separate because there are tricks very likely going on here. Somebody wants to muddy the waters. So that's how I would be inclined to proceed. I'd keep them separate. 

In all instances, as I mentioned, it is management's prerogative under the code to decide whether they would proceed with an investigation. But that's not a willy-nilly decision. That's got to be evidence-based. You can't be messing around. 

Julie: I think that underlines, Gerry, too, about the importance of documentation and about keeping notes and tracks of those decisions. Because even in one of the cases that you mentioned, there was an external investigator, and the perception was that they'd already preconceived the outcome of the investigation. 

And so, again, note-taking or decision-making trees as such would help show that the person had the other options that could have been considered. 

Gerry: Yes and no. And I can hear the HR people and the legal people saying, "What do you mean no?" Yes, insofar as if push comes to shove, you need a record. But there is another side to it, and the other side to it is if somebody feels they're being subjected to inappropriate behaviour but they don't want to make a mountain out of a molehill, they want it dealt with tactfully or diplomatically or informally. 

Now, even though the code says, "Oh, you should record everything, even of the informal", as soon as you take out pen and paper, I think it starts to get formal. 

So I don't know if I can say in a webinar . . . if I can use the term "off the record", but I would be inclined to use my discretion if I was approached about making such an intervention. 

Having said that, as soon as I had completed the meeting with the complainant or the accused party, the first thing I would be doing is I'd be making a record of it. But I'd be taking that record home, and I'd be putting it beside my birth cert, and I'd be hoping to God that I never had to take it out. 

Now, having said that, that is not the formal advice. The formal advice is, if you're involved, make a record of everything. Definitely with the formal complaint, but also with an informal. 

But I think that kind of removes a certain amount of the diplomacy and the tact and the interpersonal skill set that can successfully resolve the matter. 

You can imagine you go into a room and say, "John or Jane is accusing you of bullying and harassment". Some people will crack up with that. They might, as you've just pointed out, lodge a counterclaim. 

But things can get awfully messy, particularly if you produce a pen and you say, "This is off the record", because once you produce that pen and paper, anything that you say will be recorded, is being recorded, and might be used in evidence against you. 

So I think there's a kind of grey area there in terms of what's prescribed in law and the application of common sense, and I'm hoping I'm not confusing you on that one. 

Julie: No, that was good, but I think that just outlines there are so many grey areas too, and that you can't just use such a prescriptive approach.   You've got your frameworks, you've got your codes, but every investigation is nearly different as well, isn't it? You need to be able to pivot. 

Gerry, we'll maybe squeeze in one more question, and this one again touches on quite a common area in relation to the investigations. So, what is the advice if a complaint is made by an employee, and this time it's against a vendor, and then the employee goes out on sick leave with stress? Which happens quite a lot during investigations. 

Gerry: Yeah, it does. So you're saying that there's a complaint warranting an investigation, somebody complains about a vendor, and then they go on sick leave. 

I think that you can have a fairly straightforward approach here.  Obviously, how you proceed will depend upon how far the investigation has progressed, but if the individual goes out on sick leave, it would be the norm that they would be asked to attend the organisation's nominated doctor, and that individual would give an indication as to whether they think that they're up to attending an interview to allow the investigation to progress. 

So in other words, if you get the green light from an independent professional that says that it can progress, then I think that the party raising the issue should be flagged and alerted on that and reminded that the employer is happy to progress with the matter. 

And then the ball is really in the complainant's court as to whether they're happy whilst on sick leave to give evidence, or they may say, "Yeah, I will when I get back". 

But bottom line, again, is for the employer to protect themselves and to show that they have every intention and are prepared to progress, but perhaps they're not in a position to progress because the party raising the complaint is on sick leave and refuses to engage. 

I think you'd be on relatively safe ground to say, "Listen, I fought the good fight as an employer. I was more than happy to conduct the investigation, but it was stymied, and that was on the basis of medical professional advice to say, 'Let the hare sit until they return to work'." 

Julie: That’s great. Gerry, we're already out of time, and there are loads more questions. So obviously, your presentation really hit a note with people, and again, lots of related questions. Gerry's provided lots of guidance in his slides and cases you can look at. And of course, you've got our Knowledge Hub as well if you need other resources. 

Gerry, just once again, thank you very much for your presentation . . . 

Gerry: Thank you. 

Julie:. . . which was absolutely fantastic, and so many learning points for us and things to be aware of. 

And then, as you mentioned, Gosia as well was part of our team, offering tech support and just keeping everything running smoothly for us as well. 

And I'd just like to thank our sponsor, HRLocker, as well for letting us provide these webinars to people and helping you out with your work issues. 

Thank you, everyone. Lovely to see the feedback. Really appreciate it. Gerry, I know that you'll be with us for another event soon. I believe you're taking part in our mock WRC hearing event tomorrow. Anybody who is attending that - enjoy. I'm sure that you'll enjoy Gerry's points and guidance there as well. 

See you next time. You'll get the recording and the slides in a couple of days. Thanks very much, everybody and thanks for joining us. 

Gerry: Thanks, Julie. 
 

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