Identity of the Complainant: How much detail does the Respondent employee need?

Simply put, the Respondent employee will generally need to know the identity of a Complainant in order to adequately respond to an allegation.

Quite often, when an employee makes a complaint or allegation against another employee, it is done on the condition that their identity is kept anonymous. Employers then face a problem: how can this request for anonymity be balanced with providing the Respondent employee enough information for them to properly respond?

This issue was recently addressed in the Fair Work Commission (FWC) case ofDavid Bridge v Globe Bottleshops T/A Wellington Beer Wine and Spirits[2021] FWC 3153

The Case

In this case, a regular customer of Globe Bottleshops complained that the bottleshop attendant had sexually harassed her. The attendant was told about the complaint and asked to provide a response. When he asked for details of the Complainant’s identity he was refused. The customer alleged that she felt ‘scared and intimidated’ by the attendant and did not want her identity known. The attendant was ultimately dismissed for serious misconduct, despite not knowing the identity of the Complainant, what she had purchased that day or being able to view the CCTV footage of the incident.

The FWC found that ‘on paper’ the attendant was given an opportunity to respond, but without being given the identity of the customer, the attendant was unable to properly respond. The FWC considered that the refusal to provide more details of the complaint meant that he had been denied procedural fairness.

In this case (and many others that we have seen) the Complainant’s case was not primarily focused on denying that the sexual harassment occurred. Instead, the attendant got a ‘free kick’ at focusing on defects in the procedure to the detriment of the substantive issue, resulting in him receiving compensation. The fairer the procedure, the less risk there is of a claim like this. In our experience procedural failures appear to be given a disproportionately higher weight in contested FWC proceedings.

The Edge Legal Key Recommendations

It is very rare for there to be a circumstance where protecting a Complainant’s identity becomes more important than providing the Respondent with the full details of the complaint –including the Complainant’s identity. The Respondent should always be provided with as much detail about the complaint as possible, otherwise there is a real risk of a claim involving procedural unfairness.

This does not mean that the Complainant is left ‘in the lurch’. There are a number of measures that employers can take where the Respondent and Complainant are both their employees, such as:

1. directing both parties not to contacteach other or through a third party;

2. directing both parties to work from home (as distinct from being formally stood down);

3. if work from home is not possible for an employee, direct them not to attend the same workplace while the matter is ongoing, however, providing them tasks to complete at home (such as online training) can be a suitable alternative;

4. directing both parties not to talk about the matter with any other employees or witnesses;

5. providing access to EAP services; and

6. ongoing monitoring and reinforcement of the employer’s Workplace Behaviour policies.

Ensuring that, so far is as reasonably practicable, the same measures are taken for both the Complainant and Respondent is important for an employer to demonstrate that any ongoing inappropriate behaviour won’t be tolerated and that you are complying with your WHS obligations.

What about whislelblowing protections?

This case would have been very different if the complaint had been a ‘whistleblowing’complaint made under theCorporations Act 2001(Cth). Whistleblowers are afforded certain protections. One of these is that an employer must not reveal the identity of a whistleblower, or information likely to lead to the identification of the whistleblower, without their consent. If you know or suspect that a complaint may be a whistleblowing complaint, different procedures and protections apply.

Stay tuned for our upcoming update which will deal with how to properly address a whistleblowing complaint.