False Allegations – Further Trend Of “Upward” Bullying

We have been contacted by several clients in recent months wherein executives, directors, business owners and HR managers attempting to performance manage an employee over a medium to long period of time have had false allegations of bullying directed towards them. Linking such “bullying” action with mental health issues or using it as an angle for a General protections claim, something we have covered in a previous article “The Rise Of Upward Bullying: How Employers Can Protect Themselves From Being Bullied By Employees” is also a cause of great concern.

False Allegations and their effect on managers

The effect of course is managers and directors stop the disciplinary or show cause process for fear of an argument that any disciplinary action especially termination of employment is in relation to the complaint. It can turn out quite nasty and we have had several false allegations, complaints and incidents which does not seem out of place at many workplaces:

During a discussion with an employee about their performance (and failure to meet expectations) the employee claimed it was because her manager “talked down to her” and this made her feel “anxious”
During a show cause process where an employee was being investigated for inappropriate sexual behaviour in the workplace the employee accused his supervisor of “making it all up”, talking to him in a “vindictive way” and “targeting him”
During a meeting where a manager was discussing with an employee her failure to meet crucial deadlines which cost the company significant commercial monies the employee accused the manager of “telling her what to do all the time which caused stress”
During a meeting to discuss the reasons why the employee was not going to be successful in obtaining the promotion they were hoping for the CEO was accused of “swearing”, “making jokes at his expense” and making him feel anxious and stressed to come to work because of it
During change management and organisational restructures complaints are triggered at a much higher rate and how you deal with such allegations can be the difference between a successful General protections claim or a claim that may only lead to a minor settlement or nothing at all. Surprisingly we have also found after there is company wide sexual harassment, EEO or workplace bullying training the number of false allegations leveled against managers increases. For the managers and executives managing their staff and having to deal with performance and misconduct issues it is understandable that the manager may feel quite hurt, offended or downright angry with false allegations made against them. Been left to fester this can turn into a Workcover claim, workplace health and safety breach, unfair dismissal claim, breach of contract or general protections claims against an employer.

For employers there is a duty of care both under workplace health and safety legislation as well as (most likely) contractually or even through an internal policy or procedure for the managers and supervisors or whoever is taking the managerial action against the employee. Just because an accusation or false allegation has been made does not mean the manager should be cast aside. Employers should be encouraged to consider the difficult situation that many managers also find themselves in when dealing with employees who for many reasons will use the false allegation/s to “muddy” a show cause process, prevent performance management or simply undermine the authority of the manager, supervisor or director.

Here are 5 tips to help deal with these issues:

Be Pro-active – undertake management training for anyone managing staff, that includes directors and executives, to teach good habits in managing people but also how to have difficult conversations with staff when it comes to misconduct or underperformance
Draft relevant policies and processes – have relevant polices drafted such as grievance handling, complaint and disputes, diminished or performance management, misconduct and complaints handling and whistle blower (explanation of these new laws are here: Whistle Blower Laws Come In 1 July 2019. Are You Ready?
Investigate – If you are in any doubt about the motives of the employee making the complaint engage workplace lawyers to investigate the complaint. This will have the pure effect of separating the complaint made and the underperformance issues or misconduct issues being discussed. Once a report is prepared this can be relied upon to take disciplinary action if the investigation finds a false allegation, spurious or even vexatious
Offer help – offer support to the manager or supervisor, this can take the form of leave, professional help such as psychologist or psychiatrist, discussions with a business/life coach
Keep discussion separate – it is tempting to try and deal with everything in discussions with employees, however when a complaint is made against the manager, this should be dealt with in a separate discussion, a separate meeting -at a different time with a support person present.
No matter how ridiculous the false allegations might seem dealing with them correctly (and mitigating your risk) can make the difference between a general protections claim that can be difficult to disprove or a claim which will struggle to even establish the key element of causation between a workplace right and adverse action.

NB Lawyers – Lawyers for Employers have the experience to give employers great advice on false allegations and are happy to sit down with Employers for an obligation free consultation.

Written By
Jonathan Mamaril
Principal
NB Lawyers – Lawyers for Employers
jonathanm@nb-lawyers.com.au
+61 (07) 3876 5111

Jonathan leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, deal with problems before they fester and when action needs to be taken or a mistake is made mitigate risk and liability.

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