KEY TAKEAWAYS:
- While investigators must carefully consider the wishes of a complainant (who could be a witness or impacted person), confidentiality cannot be guaranteed (even where protections under relevant whistleblower legislation apply as there are exceptions).
- Procedural fairness requires that respondents be given sufficient detail to allow them to respond to allegations against them. This may require disclosure of the complainant’s name, particularly if they are the impacted person.
- Employers may need to investigate a complaint due to the seriousness of the allegations, even when the complainant seeks to withdraw their complaint.
- Employers have a duty of care to safeguard the wellbeing of all participants in a workplace investigation.
- Where employers receive anonymous complaints, and there is insufficient information to investigate, other possible responses could include: conducting a workplace review; team building (or rebuilding) and ways of working team discussions; employee training; and monitoring the situation on the ground.
A question often posed to our national team of legally trained investigators and trainers is: what do I do when a complainant wants to remain anonymous?
Such cases can present difficult challenges for investigators and employers because the answer is not clear cut.
When protections under whistleblower legislation apply, confidentiality restrictions apply. Outside this situation, whether the identity of a complainant can be kept confidential will often depend on a number of factors. This article explores these factors; identifies steps to safeguard the wellbeing of complainants; and provides tips on how to approach complaints made by anonymous individuals.
Respondent rights and procedural fairness
It is important that complainants are made aware, from the outset, about the extent and nature of the information that will be provided to the respondent and witnesses during an investigation to ensure a fair process.
Procedural fairness requires that a respondent be given enough detail to enable them to reasonably respond to the allegations made against them. This does not require that they be given every piece of information obtained or evidence gathered, nor that they receive a copy of the originating complaint.
Sufficient detail will vary from case to case and will depend on the nature of the allegations. To provide the level of detail needed for procedural fairness, sometimes the complainant will need to be identified to the respondent where:
- the complainant is the impacted person (that is, the subject of the alleged misconduct), and will therefore need to be identified to the respondent in order to put the allegation to the respondent
- there were no witnesses, in which case it will be obvious that the impacted person must be the complainant.
A complainant’s right to withdraw and an employer’s obligation to investigate
When a complainant wants to remain anonymous, but understands they will (directly or otherwise) be identified to a respondent, they may try to ‘withdraw’ their complaint.
In less serious cases, it may be appropriate to allow a complainant who does not wish to be identified to withdraw their complaint. Those occasions may include, for example, cases involving allegations of inappropriate behaviour where the behaviour (if proven) is not a serious breach of expectations and might only have resulted in counselling or expectation setting with the respondent, or where the concerns relate to interpersonal conflict that might be resolved in other ways in the workplace.
However, in cases involving more serious allegations of bullying or sexual harassment, where an employer has legal obligations that require them to take steps to deal with the behaviour once they are aware of it, and where the behaviour (if proven) could result in serious disciplinary outcomes, the employer may need to proceed with putting the allegations to a respondent, irrespective of what the complainant would prefer.
Safeguarding complainant wellbeing
In cases where an employer decides it must proceed to investigation, it is important that steps are taken to safeguard the wellbeing of all participants. In particular, when considering the particular needs of reluctant complainants, these steps may include:
- explaining the employer’s decision to proceed to the complainant (that is, explaining their legal obligations) and what the employer will do to protect the complainant
- speaking to witnesses before any allegations are put to the respondent, and naming all witnesses to an incident in an allegation so it is not necessarily obvious to the respondent who raised the complaint
- reminding all parties to the investigation (complainants, impacted parties, respondents and witnesses) of their obligations of confidentiality and non-victimisation
- where a respondent has decision-making power over an impacted person or complainant with respect to pay or other employment benefits and opportunities, ensuring those decisions are made by someone else for a period of time until the investigation has been completed
- where possible, referring to the complainant in communications as the ‘impacted person’ rather than complainant (noting that the complainant and impacted person will not always be the same individual).
Dealing with anonymous complaints
There are also those complaints that are made completely anonymously, such as to employer complaint hotlines.
In many of these cases there is insufficient detail to proceed to a formal investigation and employers often feel stymied in dealing with the identified behaviours.
In these cases, seeking further detail from the anonymous reporter may result in a response and additional particulars being provided. Sometimes this information may be enough to proceed to a further investigation.
Where there is insufficient information to proceed to investigate, an employer might consider whether the information they do have supports other action, such as:
- a conversation with a named respondent or others within a team by way of preliminary inquiries to test if there may be any support for what has been reported
- a general workplace review – of a division, team or work site – to identify areas of concern and address them before further complaints are made or other issues fester
- engaging a team facilitator to assist with building (or rebuilding) a team subject to the anonymous complaints
- providing further training to the team in question to make clear the employer’s expectations with respect to behaviours at work.
More information
Q Workplace Solutions’ national team of legally qualified and licensed investigators are trusted by public and private organisations, including ASX-listed companies and government agencies, to investigate complex and often highly sensitive allegations of employee wrongdoing. We also undertake reviews of organisations, divisions or units, and provide training, coaching and external advisory support to internal investigators and teams.
To find out more about how we can support you and your team, contact us on 1300 944 049. For upcoming investigations training workshops visit our dedicated training arm, Q Workplace Training.
