How to respond to a vexatious complaint

In previous blog posts we have explored the issue of vexatious complaints, and provided some key principles that should guide your approach as an employer in such situations. The recent case of Ms Linda Hanrick v Meridian Lawyers [2018] FWC 3256, decided on 5 June 2018, explored this issue, and offers a fresh example for employers to consider in light of best practice principles.

What is a vexatious complaint?

• At the start of the investigation, Ms Wellard had advised Ms Hanrick that if, after a formal investigation, she was found to have made a false complaint, it might lead to disciplinary action, including dismissal;

• Ms Wellard spoke to all the people whom Ms Hanrick had raised in her complaints, and some others;

• Rather than a hasty decision to end her employment, Ms Wellard met with Ms Hanrick on three occasions. Ms Hanrick was given a number of opportunities to respond and she did so;

• In particular, Ms Wellard provided three opportunities to Ms Hanrick to respond to the allegation that she had made false claims of bullying: during meetings on 30 October, on 7 and 9 November 2017 and in emails to her; and

• Therefore, the applicant had a reasonable period of time from 30 October to 9 November to reflect on her behaviour and her allegations and withdraw her allegations. Her failure to do so, and in fact to add new allegations, meant her conduct was incompatible with the continuation of the employment relationship.

How to deal with vexatious complaints

This decision reaffirms some principles we made in earlier blogs about how employers should respond to suspicions that a workplace complaint has been made vexatiously or falsely. That is:

• At the start of the initial investigation of an employee’s concerns, advise them that if it is later found that they have made false or baseless claims, they may face disciplinary action, up to and including dismissal;

• Employers need to properly investigate the employee’s allegations first, and make findings in relation to those, before turning their attention to dealing with the issue of whether or not the complaint was vexatious;

• Ensure the investigation itself is procedurally fair. In both of the following cases, not only were the allegations concocted with the intention of getting rid of a senior employee, but those senior employees were not given sufficient time to respond to the allegations made against them: Adamopoulos v Thompson Healthcare [2017] FWC 2505; Bronwen Martin v Beechworth Montessori Children’s Group Incorporated T/A Beechworth Montessori School [2017] FWC 3314; and

• There needs to be a second, separate investigation to examine whether the complaint was vexatious. That is, after the investigation of their complaint is complete, employers need to put the allegation to the employee that they have made a false complaint, and then allow them an adequate opportunity to respond. In this case, while this second ‘investigation’ was short (essentially consisting of a further meeting with Ms Hanrick and an opportunity to provide a response), Ms Hanrick was provided with an opportunity to respond to the new allegation.
• In order to minimise the risk of any perception of bias, ideally this second investigation concerning the alleged vexatiousness should be undertaken by another individual, at arms-length from the first investigation.

About Tom Henry

Tom Henry is a Senior Investigator at Worklogic.

He understands the value of clear analytical thinking, concise and powerful communication skills, excellent client service and effective case management.

Tom has led numerous challenging, highly technical workplace investigations in a variety of sectors and has seen first-hand both the power of social media and the damage it can do if used inappropriately.

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