Project Description

Dealing with Difficult Complaints with Chris Wheeler and Gabrielle Sullivan

Workplace complaints become complex for several reasons, including due to the small percentage of complainants who behave in ways that are, shall we say, counterproductive to their own interests.

In today’s episode our host James Judge is joined by two experts with decades of experience dealing with difficult and complex workplace complaints, Chris Wheeler and Gabrielle Sullivan.  Chris is a former NSW Deputy Ombudsman and has extensive experience in conducting hearings, formal workplace investigations as well as developing guidelines for complaint handling, whistleblowing and ethical conduct. Gabrielle is a NSW Accredited Specialist in Employment and Industrial Relations and Director in the Employment Law and Investigations Group at BAL Lawyers.

Some topics we cover:

  • The most common causes of complex complaints
  • Strategies to ensure complaints don’t escalate
  • Legally speaking, what is procedural fairness and how does it apply in workplace investigations?
  • How mental health and personality disorders can impact complaint handling
  • The ins and outs of privacy, secrecy, confidentiality and reasonable disclosure, for complainants, whistleblowers and complaint handlers
  • Ways to avoid criminal charges and litigation when addressing workplace complaints

Resources we mention:

James Judge: Welcome to the HR Breakfast Club podcast, where we discuss topical issues that arise from the intersection of the law and the world of work. I’m James Judge and today we’re discussing handling difficult and complex complaints with two experts, Chris Wheeler and Gabrielle Sullivan. Chris and Gabrielle, thanks for giving up your time to be with us today.

Gabrielle Sullivan: Pleasure James.

Chris Wheeler: Good morning James and my pleasure as well.

James Judge: First a bit about our guests. Chris was formally the New South Wales Deputy Ombudsman and has extensive experience in conducting hearings, formal investigations, and exercising Royal Commission powers. He also has extensive experience in the development of guidelines and training on all aspects of complaint handling, investigations, whistleblowing, ethical conduct, and appropriate administrative practices, including the proper exercise of discretionary powers. Chris now runs his own consulting business and is a commissioner on the New South Wales Greyhound Welfare and Integrity Commission.

Gabrielle is a director of the Employment and Investigations Practice at BAL Lawyers in Canberra. She’s been practicing civil law for over 20 years and has worked for trade unions, public sector employers, and private law firms. Gabrielle also has comprehensive experience as a workplace misconduct investigator. She’s on the Code of Conduct Review Panel for many local government councils across NSW and chairs appeal panels for ACT public servant grievances on behalf of the ACT government. Chris, can you point to a number of common factors that contribute to elevating a simple complaint to a more difficult one?

Chris Wheeler: There are three that come to mind. Firstly, quite often, a complainant’s perception of what their issue is, is only partially correct, and it might be quite bigger or more complex than what they originally sought. When you start looking into it, it just opens up a total can of worms, so that’s a fairly easy one to deal with, I’ve got to say, from the complaint handler’s perspective.

The second one is, of course, the bugbear of complaint handlers pretty much around the world sometimes, and it doesn’t matter how simple the complaint, sometimes the complexity relates to the personality or the interpersonal communication skills, shall we say, of the complainant. I’ve talked to experienced complaint handlers from across Australia, New Zealand, America, Canada, Asian countries, done a lot of training there, and it is a common issue across all cultures that some people, a small percentage, that small percentage engage in behaviors or conduct that complaint handlers find particularly difficult to deal with.

Now we’re not just talking about people who are upset. Nobody makes a complaint because they’re happy, right? So, in the world of complaint handling, you are dealing with people who are upset. I’m talking about when people basically leave their reservation, when they start doing things which are counterproductive to their own interests. As I say, we’re talking about a small percentage, maybe from what, you know when you talk people down, because they get a bit worked up when you bring up the topic, when you talk them down a bit, maybe 3-5% of complainants, some organisations will say it’s 90%, others will say it’s just 1, but it ruins the whole organisation, it’s just taking up all their time.

Particularly councils find that often it is one or two complainants who can almost bring them to their knees. These are often either retirees or ex-councilors or staff members. In the categories of conduct that I’ve identified over the years, I would refer to a lot of these people as hobbyists. So, it’s not that they’ve got some mental health issue or anything else. It’s basically, it keeps them from getting bored in their retirement, so they raise issue after issue.

So, the third one, just I’ll move on quickly, a common source of complexity is created by the complaint handler. There are various things that complaint handlers often do poorly and that can really poison a relationship. The first one is to fail to identify and manage the complainant’s expectations. If they have an unreasonable expectation about how the matter will be dealt with, the priority it’s going to be given, likely outcomes, and you don’t deal with that immediately, you’ve got a problem.

The second one would be the failure to keep a complainant informed as to progress. Now, so often I used to find organisations would say, “Look, we had nothing to report.” You go, well, if complainants don’t know what you’re doing, this is Australia, yeah? They assume you’re not doing anything. No-one believes the government’s doing well unless there’s evidence to prove that it’s doing well. I keep saying, look, a no progress progress report is better than no progress report. Contact them. Tell them, “look, we haven’t made progress,” or, “there’s been a delay,” or, “something’s gone wrong.” People will accept that generally. Whereas if they don’t know, they’ll just think the worst. Unreasonable delay, of course, is always a significant problem and using standard letters and standard paragraphs inappropriately really annoys people.

James Judge: Look, I was actually going to ask you about the issue of speed of response a bit later, but that’s a very comprehensive answer. Gabrielle, as a legal practitioner who has represented both complainants and organisations subject to complaints, what are your thoughts on some simple strategies to ensure complaints don’t escalate?

Gabrielle Sullivan: Well, James, obviously I work in the employment space and I tend to focus on it from an HR perspective, so in terms of those kinds of complaints and how they would escalate, ideally complaints are addressed at a workplace level as they arise. That would be HR best practice. Often that doesn’t happen for a whole lot of reasons and they escalate. And then, as Chris said, the complaints handling process can be poorly managed, particularly by delay or avoidance, and thereby a complaint that was legitimate doesn’t go away, it just gets worse and it escalates. In terms of some strategies to address it, what would I do?

Number one, I would address it. Number two, I think what needs to be addressed in the HR complaints arena is a real focus on, what is the core mischief? What is the problem? As Chris said, the problem can be the complainants themselves and they may not be the best advocate for their own complaint. And amongst a litany of concerns, deep down buried on page nine might actually be the core mischief, and surrounding it is a whole lot of other grievances that can cause, frankly, unnecessary escalation. So I would say try to focus on the core mischief.

And finally, I would say that if you do find a problem and it relates to the core mischief, then deal with it, rectify it. That might actually mean compensation. It might mean the S word, James. That’s “sorry”, which I find can resolve complaints nice and early, but I still find a lot of reluctance to apologise. But I think if those things happened right up front, we would avoid at least some complaints escalating. There’s a whole range of other strategies I could talk about, but that’ll do it for the moment.

Chris Wheeler: Can I cut in there very quickly on the sorry issue? There’s been a very well kept secret in New South Wales, particularly amongst the legal fraternity who actually aren’t even aware of it. In 2002, the state government amended the Civil Liability Act to provide that an admission of fault in the context of an apology is not admissible in civil proceedings.

Now, I talk to lawyers regularly in conferences, always ask them if they’re aware of section 69 of the Civil Liability Act, none of them know it exists. There’s no money in it. Basically, there’s a few exceptions like physical assault, car accidents, but in the normal course of events for any citizen of New South Wales, South Australia, Queensland, Northern Territory, you can actually admit fault in the context of an apology, and that cannot be brought into evidence against you. They may use it to find other evidence, but they can’t use that statement. Sorry to interrupt.

James Judge: No, please feel to chip in if you’ve got something relevant Chris. Procedural fairness is another term that gets bandied about and spoken of in the context of complaints. Gabrielle, beyond people’s perceptions of whether they’ve been treated fairly, legally speaking, what is procedural fairness and how does it apply?

Gabrielle Sullivan: Well, it’s a great question James. Can I start by telling you what it’s not? It’s nothing so lofty as the perfect answer to every complainant’s concern. What it is, is a much more modest goal of fair procedure as opposed to a fair outcome.

What actually is it? Well, the courts have said it’s actually of no fixed content, so it’s of no fixed content, but there’s two broad rules, and possibly a third. But essentially, the two broad rules are these: before a person’s legal rights are adversely affected, for example, by terminating their employment, before that happens, a person should have an opportunity to be heard. We call that the hearing rule; secondly, any decision should be made by a person whose mind is open to persuasion. We call that the bias rule. That’s the fundamentals of what procedural fairness is.

There’s some noise about a third limb to the procedural fairness rule and that is what we call the evidence rule and that a decision should be made on the basis of logically probative evidence. I won’t go into the minutiae of that, but essentially it’s not a bad idea for complaints handlers to think about that. That’s what it is James.

The second part of your question was, “Well, how does it apply?” We can have a discussion for ages about this, couldn’t we Chris?

Chris Wheeler: Could indeed.

Gabrielle Sullivan: I’m sure, but I’ll just simply say this, it’s a concept that comes from administrative law in public sector environments. But in employment and HR context, which is what we’re really talking about today, it’ll apply to all public servants who are the subject of any sort of disciplinary investigation or process. It’ll effectively apply to all Australians whose employment is subject to the unfair dismissal regime and it’ll apply if your contracts or policies say it does, so that’s something to think about. That’s a rather broad sweep, isn’t it? But it doesn’t always apply.

Perhaps I could say one more thing: it doesn’t necessarily apply to a complainant. It applies to the persons whose rights stand to be adversely affected. So if you complain about me, James, in my job, and I’m the person who’s likely to lose my job, I get procedural fairness in the investigation process, not you as the complainant. That’s, in my experience, commonly misunderstood and very important to understand because it helps the investigator control the process.

James Judge: That’s quite an important point and might be lost on some non-legal practitioners. The actual content of who owns that procedural fairness, a bit like legal professional privilege I guess, where the client owns a legal professional privilege. But look, I won’t go there. Chris, anything to add on the issue of procedural fairness?

Chris Wheeler: The legal aspects of procedural fairness can be and are quite complex and they’re moveable, depending on the particular judge and the court. High Court has been swinging backwards and forwards recently in the last three or four years, went a bit far and it stepped back a bit since then. But there is another way of looking at it on an essentially practical level, and that is the importance of the concept of fairness to individuals.

Now 40 years ago, 40+ years ago, organisational scientists came up with this counterintuitive idea that people care as much about how a decision is made as about what the decision is. Now there’s been thousands of research projects done since and they’ve developed what they call justice theory or organisational justice theory. Sometimes they talk about procedural justice. Where the research has shown that in most circumstances, people are concerned about the perceived fairness of the procedures used and how they were treated and whether they are given adequate information at the right time.

In a complaint handling context, those three things are absolutely vital. They need to know about what procedures are used. They have to perceive that they are fair. They have to perceive they’re treated with courtesy and respect and they have to perceive that they were given adequate information at the right time. If those three things are met, people are far more likely to accept an outcome they don’t like. It doesn’t mean they’ll like it, but they’ll accept it, move on. It’s the ones who don’t move on who become the serious problems for the complaint handler.

James Judge: What about the role of mental health and other things that might sit outside the complaint? Do they play a big role? What do you think you can do, if anything, to minimise these sorts of seemingly external factors? Chris, any views on that?

Chris Wheeler: When I was talking before about the problematic conduct of certain complainants, mental health is only one of the reasons why people might be acting unreasonably. There’s, I think identified at one point, 20 different bases on which you might find that somebody is acting in ways that you’re finding particularly difficult – the one I mentioned before, for local government, the hobbyist.

But there are all sorts of reasons why people might do things that we find difficult. But in terms of the mental health side of things or personality disorders, the research tends to indicate that around about 15% of people suffer from one or more of the five or six common personality disorders that impact on complaint handling. And so, complaint handlers need to be aware that they might be dealing with somebody who’s got a borderline personality disorder. They can’t actually try and diagnose them, but they need to be aware of the behaviours.

That one, for example, they are unable to see things from another person’s point of view; they can only see their own point of view. You’ve got the narcissistic personality who lack empathy and they believe that everything should go their way. They cannot understand if they don’t get exactly what they want. Paranoid people who will misinterpret everything. If there’s two possible explanations, they will go for the negative one. Sociopathic or pathological personality issues where they’re just out for themselves. Again, no empathy. They only want what they want and they’ll do anything to get there. You got histrionic people, people who seek attention, excessive emotion. You’ve got these sorts of things that occur and it’s so important that complaint handlers, no matter what the conduct that they’re experiencing, show respect.

Any indication of disrespect is poison to a relationship. No matter how that person’s acting, everybody believes they are worthy of respect. Research done in jails of serious murderers, thousands of them interviewed in a research project in America, and they were asked, “why’d you do it?” and one of the common answers was, “I was disrespected.” Everybody believes they’re worthy of respect. And so, when you’re dealing with these sorts of people, or the people that are exhibiting these behaviors should we say, the key thing is always show respect. You might not feel it, you should be able to fake it. It’s part of being a complaint handler.

James Judge: Taking this back to the workplace, Gabrielle, any tips from you in terms of managing these external factors?

Gabrielle Sullivan: Look, probably a couple, but if I could just add one more thing to Chris’s comments, which I wholly agree with, I would say, in addition to people that already have a pre-existing personality disposition or a mental health condition before they made the complaint, what I see in my practice is that people can develop a mental health condition during the course of the complaints process. I’m thinking in particular employee disciplinary proceedings. They are stressful. They are long. You are potentially likely to lose your livelihood and at least your reputation. This is not a happy place at all for these people and I do have a significant percentage of my clients who, if not at least distressed and anxious, will develop a mental health condition in the course of that process.

In terms of managing it, how do we do it? Respect, of course, is the goal we’re aiming for here. At a practical level, there’s two things that we would do in our practice to manage that. Firstly, we would make sure our clients have got the, or encourage them to get the medical help and the medical support they might need, and the social support they might need. Practically speaking, check in with your doctor, get a mental health professional. They may need to give instructions. They might need a support person or something of that nature to assist through that difficult time. That’s step one.

The other thing that helps, of course, and what we’re really getting out in this entire podcast of course, is some discipline in the complaints management process. We can’t necessarily help the factors have led to it, but as Chris said right up front at the start, we can help how we manage this process. Timeliness is obviously important, as we’ve discussed. Particulars is a good way to manage what threatens to be a chaotic, unwieldy, exhausting and stressful process. As I said, leading with your chin, addressing the core mischief.

The way lawyers deal with that, when we get a complaint, for example, that such and such is a bully, before we launch into what could be a very long-winded and difficult process, we put some effort and some thought into the complaints management process. What exactly does that mean? We would write back to the complainant and say, “well, how? When? Where?” That sort of discipline needs to be brought on the process and that can help and understanding, in practice, what procedural fairness actually means. For example, the right to be heard. If you’re dealing with, say, a hobbyist, as Chris would say, or querulent, they like to be heard often, James, and in full.

How does one deal with that? Well, if you’re properly informed as to what procedural fairness actually means and who’s entitled to it, are they even entitled to it? And if so, have they had enough? Knowing when to draw the line, say, “enough, thank you. We’ve given you 7 days or 14 days,” or whatever. So yeah, with a bit of knowledge of the rules of the game, you can control that process. Ultimately, as we said before, it’s really a case of being pretty clear about who owns the process. So there’s some strategies I would suggest we use to manage those health conditions.

Chris Wheeler: Can I just add one point in here as well about prevention?

James Judge: Yes, please do.

Chris Wheeler: Now, quite often, Australians don’t like circumstances which get a bit tense and nervous and there’s avoidance behaviors by managers who do not want to have hard conversations with their staff. So you’ve got people who’ve been working the same way for a long period of time and all of a sudden somebody decides enough’s enough, and they decide to go down the performance management path.

The people who have been working and thinking they’ve been working okay, can’t understand why this is happening, number one; and number two, believe it’s harassment, victimisation, so then they escalate and they make a complaint, often internal disclosures. Matter of fact, maybe almost 50% are made in the context of a workplace conflict, a grievance, so it’s about recognising if you don’t get in early and explain to people that their work is not to right standard, don’t assume that they know that.

Dunning and Kruger did this research in the 1990’s and proved conclusively and it’s been reproved, so now it’s called the Dunning and Kruger effect. Incompetent people are incompetent at assessing their own level of competence. They’re also very certain about their level of competence. So if you’re not managing people from the start, when you first say, “this is not good enough,” to come in years later, you’ve just thrown fuel on a fire, and they are so upset. Again, your mental health issues kick in. They can’t believe this is happening to them and things go pear-shaped.

James Judge: In those situations there, where you have a written complaint, and let’s assume it’s a workplace complaint, what about privacy? What do our listeners need to know or be wary of there, do you think?

Chris Wheeler: Well, there are three different issues here. One’s privacy, one secrecy, one’s confidentiality. They’re all different and they’re all related and it depends on the circumstances in which you’re working. Now in terms of complaint handling, if we’re looking at New South Wales, privacy is of course important, but there is a provision in the PIPA Act, the privacy legislation, cleverly hidden. What it says is that basically, it’s hidden under a heading that says “Exemptions for Investigative Agencies,” but it actually applies to all public sector agencies and officials. But that’s the last subparagraph that mentions that, cleverly hidden.

But what it says is that you don’t have to comply with numerous sections of the PIPA Act if compliance might detrimentally affect or prevent the proper exercise of the agency’s complaint handling functions or any of its investigative functions – number one. You’re not required to comply with section 18 if the information concerned is disclosed to a complainant, and the disclosure is reasonably necessary for the purpose of reporting on the progress of the investigation, into the complaint made by the complainant, and provide the complainant with advice as to the outcome.

Now, a lot of organisations say, “we can’t tell them that,” because that’s breaching the privacy of the person they complained about. This provision has been in the Act for some years and it used to be in a direction for many years, but it’s hidden. So, what your clients need to know is that they are able to make reasonable disclosures to a complainant and to take reasonable steps to investigate a complaint and not have to worry about breaching the PIPA Act.

James Judge: Gabrielle, anything to add? Is the law different in the ACT?

Gabrielle Sullivan: Unfair question James. It’s a very detailed question. There is actually a workplace surveillance act in the ACT that’s slightly different to New South Wales. But to be fair, James, I’d say that’s probably a topic for another day.

Chris Wheeler: Yes.

Gabrielle Sullivan: Wouldn’t you agree with that Chris?

Chris Wheeler: Absolutely, yeah.

Gabrielle Sullivan: Because we can go into that in a fair bit of detail.

James Judge: Another one hour discussion.

Gabrielle Sullivan: I would say just to frankly affirm, in a simple sort of way, what Chris is saying in terms of investigations complaints management, I think the rule of thumb is information circulated on a needs to know basis is not a bad rule of thumb to maintain.

Chris Wheeler: Yes, absolutely.

James Judge: Chris, I know we’ve spoken a few times over the last few weeks about enhancements made last year to the protection of whistleblowers under the Corporations Act. Probably not easy to understand, I’m not a practicing lawyer, but I had to look at it myself and the drafting seems a little bit complicated. But can you simply explain what these are and why they’re important in terms of complaints handling?

Chris Wheeler: Okay. The enhancements are tremendous from the perspective of a whistleblower. They have increased the protections, they have made it easier for disclosures to be made. However, there is a downside for the organisations that receive these disclosures and that downside is, to my mind, unreasonably significant. Point one is the complexity of the legislation. It is extremely difficult to read and to understand, and the idea that individuals might understand it, who are not experts in the field, I think is naïve. It was written by lawyers for lawyers. It was not written for the people who are bound to comply.

Let’s start with one complication is that there are five different types of disclosure. The first is to ASIC or APRA, or a prescribed body, there aren’t any of those yet. A second is an internal disclosure to an eligible recipient, and I’ll come back to that. Third, you can disclose to a legal professional, just to get some advice about whether it’s a disclosure basically. Fourth, you can have a public interest disclosure, but you’ve got to have made the original disclosure to ASIC or APRA. And finally, you’ve got an emergency disclosure.

Now, each of them have different criteria, different procedures involved. If we go back to the internal disclosure to eligible recipients, so an eligible recipient is any officer of a corporation and any senior manager. And the disclosure can be made by any current member of staff, former member of staff, contractor, former contractor, members of the families of any of those people, their children, no age limit. It can be made by virtually almost anybody and it can be made anywhere, anytime, anyhow.

They could be talking to a senior manager of a corporation at a barbecue and basically say, “look, I’m aware so-and-so has been fudging his time sheets or has been misusing a credit card.” Now, to my mind, that would meet the definition of what’s covered by the Act which is misconduct or an inappropriate state of affairs or circumstances. Now it also covers things like any breaches of Commonwealth legislation that have a punishment of 12 months or more, probably covers assault. But if we go back to the internal disclosures, so if they make a disclosure of that nature to a board member or an officer or a senior manager, that person can only disclose information that might identify the whistleblower to ASIC, APRA, or with the consent of the person. No one else within the corporation can be told. Now the only circumstance in which you can do it is for the purpose of investigating a disclosure. You can disclose information likely to identify the whistleblower, provided you have taken all reasonable steps to make sure that doesn’t happen.

Now, if you’ve taken all reasonable steps to make sure it doesn’t happen, it’s a bit circular. The key message for any officer of a corporation or board member, if they are at all in any doubt that somebody has said to them something that could be misconduct or an inappropriate state of affairs or circumstances, get their explicit consent to be able to tell the coordinator of the body, the disclosures coordinator, the CEO, an investigator, somebody, so that it can be dealt with. Best to get it in writing.

One of the other complications is that, unintentionally, apparently, they included in the new whistleblower protection provisions, constitutional corporations. Now they’re not corporations under your standard Corporations Act arrangement. These are bodies that can be state government entities or local government entities that are called a trading corporation because they’re found to have a substantial trading purpose or a substantial trading activity. It doesn’t have to have the status of a corporation. It does need to be able, apparently, to have a legal identity, so to be able to prosecute in its own name, enter contracts in its own name, buy land, that sort of thing. It doesn’t have to be a majority of its income, just an appreciable amount.

A whole bunch of state entities have been found by the courts in different context, but still the courts have said, “yes, they are constitutional corporations.” That includes Queensland Rail, Victoria’s Country Fire Authority, Roads and Maritime Services, Trade and Investment Queensland, Sydney Trains, local councils. So any local council that has a significant income from childcare centers, car parks, probably parking meters, anything else where they get money in, an appreciable amount, is covered by both The Corporations Act whistleblower protection provisions and their own state territory or Commonwealth Public Interest Disclosures Act.

The problem is there are provisions that are in conflict and where they’re in conflict, the Commonwealth provision prevails. Whereas your state, territory and Commonwealth Acts give exceptions where you can disclose information identifying a whistleblower for the purpose of investigating the disclosure, without needing to get their consent. If you do it without consent, you’ve breached the Commonwealth Act. That’s a criminal act. I don’t think ASIC is going to prosecute because they’ll think this was not an intended provision. It was described to me as an unintended regulatory burden, which I think is a huge understatement.

Now what might happen is if you’ve got a very disaffected member of staff who has suffered significantly and attributes that to the fact that they were identified, and they go to a lawyer, and the lawyer looks at this and goes, “ooh,” now the compensation potentially that can be obtained from the person who, inadvertently maybe, inadvertently disclosed the identity is $1,050,000 and the compensation that can be obtained from the corporation if you can say, “well, the organisation is also at fault,” it goes for a body corporate, it’s a maximum of the greater of $10,500,000, going up to $525 million based on a formula. We’re talking massive potential compensation for people who may have lost their job or suffered mental health issues because they can trace that back to being identified.

I think, from memory, the onus of proof is on the organisation to prove they didn’t do it, as opposed to the other way around, from memory. I’ll have to check back on that. We’re talking about significant liability potentially on any officer or any senior manager, and for a state entity, unless they’ve got consent, I don’t know how they could notify their anti-corruption body. That’s not one of the exceptions to the Whistleblower Act. If you’re a large council or Sydney Trains, or whatever, I don’t know how you could, without the consent of the whistleblower, inform the ICAC of suspected corrupt conduct because that Commonwealth legislation would take precedence.

Now, if you’re an NDIS service provider, that’s another problem. They’re private entities, but they have a provision under the NDIS Act about whistleblower protection, which is based on the old Corporations Act Provisions. Obviously, they didn’t know they were there because they didn’t amend them when they brought in this new act. Under the old provisions, you had to identify yourself. It couldn’t be an anonymous complaint. Under the new ones, you don’t have to. You can make an anonymous disclosure. There are also certain evidentiary issues that are different and there’s no confidentiality provision under the NDIS Act. So you might be aware of the NDIS Act, comply with it, and commit both a criminal offense and open yourself up to massive compensation claims under the Corporations Act.

Now I find this situation to be utterly unacceptable. The legislation was written by lawyers clearly for lawyers because only a lawyer could understand it, not the people bound to comply. They’ve created a situation where it is a minefield for people who probably want to do the right thing and the effect on them could be to lose the house. Now this is wrong. This is not what we expect from governments in Australia.

James Judge: It sounds like a legal can of worms, Chris, and a case of “watch this space.” Gabrielle, just coming back to some of our listeners who might be HR professionals, any other tips on best practice for managers in handling complaints you wanted to add?

Gabrielle Sullivan: Oh, I think we’ve been through the key tips, James, but I suppose there’s just one that I would encourage all HR managers to think about before they embark upon some sort of formal complaint process. It’s this, be clear on the purpose. What are you trying to do? Workplace disputes that are not criminal, the HR manager needs to understand this, that, in the civil jurisdiction, what am I trying to achieve? I’m trying to achieve a workplace that’s harmonious and productive. I am not the police. I’m not trying to punish anybody. I’m not their parent and I’m certainly not the moral police. I’m not making moral judgements about my people.

The point of responding to complaints, and particularly in HR disciplinary processes, is a protective mindset is required. “What do I need to do to protect my workplace?” If you really think about that question, that should avoid organisations becoming embroiled in all sorts of pieces of litigation that come from a different mindset. What I’m trying to say is, what is actually required to sensibly address this complaint? Use a protective purpose lens and act reasonably.

Reasonableness is always the touchstone to defend most legal causes of action in employment law space, so act reasonably, be clear on what you’re trying to do. That is very difficult, precisely because as Chris said right at the start, the complaint may be inherently complex; the complainant may be inherently complex. But if you, as the investigator or the organisation managing it are very clear about what your role is, I think that would be my best tip to make the sailing as smooth as possible.

James Judge: Chris, did you just want to add something in there?

Chris Wheeler: Following on from what you were just saying, one of the key questions they have to ask themselves is, “What do I want to achieve? Do I want to punish somebody or do I want to stop the problem from continuing and fix it?”

Now, one of the commonalities between people who might be engaged in bullying behavior and people who might be engaged in unreasonable complaint and conduct, quite often they are effectively the same thing: bullying. One’s from external, one’s from internal. If you try and say and label the person as an unreasonable complainant or as a bully, they’re never going to agree. It’s, “I’m just exercising my rights,” or, “I am just engaged in robust management action.” What this particular woman in America, who’s an expert in this area, what her approach is, is not to say to somebody, “you are a bully.” It’s to say to them, “your credibility is being damaged in the organisation because people perceive you to be a bully. How can we change that perception?”

Now you can argue, “I’m not a bully,” but it’s hard to argue, “well, nobody perceives me to be one.” If you are perceived to be one, then that is damaging the perception.” If your objective is to stop the behaviour, maybe an effective technique might be to sit down with a person and say, “look, I’m not naming names, but let me say, there are people who are perceiving that you engage in bullying activity and that is damaging your credibility in the organisation. What can we do to stop this and change their perception? What are the sorts of behaviours that you might need to modify?” I’ve read papers about how you can even get psychopaths to actually act quite reasonably. They’re acting, but they see there’s a benefit for them of doing it, so maybe the approach, and certainly in the whistleblowing area.

New South Wales has had six prosecutions for detrimental action. All have failed, doesn’t matter how good the evidence is. Disciplinary action, again, seriously problematic, very hard to prove. But what, often, the people who are suffering want is for it to stop and for management to put them back in the position they were in, so if that’s your objective, why not focus on that?

James Judge: Managing psychopaths, Chris, I think that could be another podcast discussion that would be of great interest to our listeners. Thanks again to both of you.

Gabrielle Sullivan: Thanks James. Pleasure.

Chris Wheeler: My pleasure.

James Judge: You’ve been listening to the HR Breakfast Club podcast with guests: Chris Wheeler and Gabrielle Sullivan. You can find us online at Feel free to contact us with any questions or topics you’d like us to cover. We also very much appreciate reviews, which you can leave on Stitcher, iTunes or Google Play. Special thanks to Anna Johnstone for assistance in producing this episode.


BAL Lawyers have put together a suite of HR policies and training bundles to support and enable best practice HR strategy. Click on a policy for more information or view all available policies here.