Workplace Harassment, Allegations and Investigations: How Employers can best prepare their businesses.

Summary

Workplace harassment and bullying remain significant legal and cultural challenges for Australian employers. Under both state and federal laws, employers have a positive duty to prevent these behaviours and maintain a safe and respectful working environment.

This means that employers must have proactive systems in place; not just to react when complaints arise. Employers must identify risks, train staff, respond appropriately to allegations and ensure fair transparent investigations.

Failing this duty to prevent bullying or harassment can breach obligation's under the Work Health and Safety Act 2011 (NSW) and the Fair Work Act 2009 (Cth). Further, a breach of these obligations may also overlap with anti-discrimination law, such as the Anti Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (Cth). The following guide explains key definitions, employer duties and best practice strategies for handling allegations and fostering a safe workplace culture.

Definitions:

Bullying in the workplace is defined by SafeWork NSW as ‘repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety’.  Such behaviours can adversley affect both the physical health and psychological wellbeing of employees.

Harassment includes offensive, intimidating or humiliating behvaiour that is unwelcome to the recipient, and which fosters a hostile or fearful work environment. It often intersects with the protected attributes, such as (but not limited to) a person's sex, age, race, religion, sexual orientation, disability or marital or relationship status, and overlaps with the anti-discrimination laws.

Employer Obligations in the Workplace

Positive Duty & Risk Management

Under the work health and safety regime in NSW, employers have a legal obligation to ensure, so far as reasonably practicable, that the workplace is free from risks to health and safety- which extends to preventing psychological hazards, such as bullying or harassment. SafeWork NSW emphasises that preventing and responding to workplace bullying is a key element of that duty.

Scope of the Duty

• The duty covers behviour both during work hours, and in contexts connected to work (extending to work- events or trips).

• Systems must be in place before troubles arise; prevention is not optional.

• Employers must consult, monitor, provide training and respond appropriately when concerns emerge.

Dealing with Allegations: A Practical Guide

1. Establish a Sound Grievance Policy

   Before any allegations of bullying or harassment arise, ensure your organisation has clear, written policies dealing with complaints of bullying and harassment. Staff should know how to report such behviour, what supports are in place for them, and how investigations will proceed.

   
   

2. Fair & thorough Investigation

   - Obtain the account of all the parties involved, ensuring that on one feels unheard. When obtaining accounts from parties, ensure fair and proper procedure, including the provision of required support people.

   - Prepare detailed written records of what was said, and the steps that are taken.

   - Avoid antagonising any involved party; maintaining fairness bolsters trust in your process.

   - If matters cannot be resolved internally, advise the complainant of external options, such as the Fair Work Commission (FWC) Stop Bullying jurisdiction.

   
   

3. Liaising with the FWC (or other relevant bodies

   If an employee makes a "stop bullying" application under Section 789FC of the Fair Work Act 2009 (Cth), the FWC may issue orders as it considered appropriate (which may include an order to stop such behaviour, review policies or implement monitoring).

   
   

4. Keep it Confidential, But Transparent

   Maintain confidentiality to the extent possible in the interests of protecting all parties involved, but avoid giving the appearance of "seeping-under-the-rug". Credibility is maintained when investigations are seen to be real, transparent and taken seriously.

How Employers Can Best Approach These Situations

1. Audit your systems:

   Ask whether your current policies, training and monitoring genuinly fulfil your positive duty. If not, ensure that steps are taken to develop new systems, and that staff are strained on acceptable behviour, and the consequences of bullying and harassment.

   
   

2. Promote a respectful culture:

   Your business culture and how employees treat each other is a reflection of your leadership. If you wouldn’t accept certain behaviour in your own interactions, lead by example, and challenge it in the workplace.

   
   

3. Clarify expectations:

   Set out in your business plan/strategy acceptable behaviour is (and what isn’t). Make sure this is communicated to and understood by employees, and reiterated often.

   
   

4. Develop robust policy

   Create policies that explain why things are structured as they are. Allow questions from staff, and always be open to receive feedback on improvements.

   
   

5. Implement a systemised approach:

   If an allegation arises, your organisation should have a clear process for receiving, investigating and resolving complaints. Staff should feel supported and heard, not isolated.

   
   

6. Don't delay or dismiss:

   Having proper systems in place to begin with, and taking any allegation seriously from the outset, prevents escalation. Avoid giving the impression of a cover-up, as this will erode trust, and give rise to a greater risk of legal or regulatory consequence.

Conclusion:

In today’s legal environment in NSW and Australia broadly, employers cannot rely solely on reactive responses when bullying or harassment arises in the workplace. The law is clear: employers must proactively manage psychosocial risks, maintain clear systems and culture, respond fairly when issues arise, and support the health and safety of your workforce. Ensuring that these systems are effective isn’t just best-practice – it’s a legal obligation.

Key Takeaways

• Employers have a statutory obligation to take proactive and reasonable steps to prevent workplace bullying and harassment.

• This duty extends to all work-related situations, including off-site functions, travel, and events.

• Extensive and effective policies, training programs, and reporting systems are essential to ensure compliance with applicable legislation.

• Any allegations must be handled promptly, impartially, and confidentially, with all findings appropriately documented.

• Fostering a respectful and inclusive workplace culture is fundamental to both legal compliance and employee wellbeing.

• Employers should periodically review and update internal procedures to align with current legal and regulatory requirements.

If your business requires guidance on how to develop or refine its workplace policies, complaint-handling procedures, or training frameworks to meet these legal obligations, our team at Jenkins Legal and Advisory can assist. We are experienced in structuring effective systems in the workplace, ensuring compliance with current NSW and federal requirements, while helping you to foster a safe and respectful workplace culture.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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