Employers - what obligations do you have when an anonymous complaint is made by one employee against another?
Apr 4, 2017
It is important that you do not simply ignore a complaint, even if you have doubts about the complainant’s motive or truthfulness. Failure to appropriately investigate a complaint, particularly where it raises health and safety issues such as bullying, can give rise to a personal grievance, or potentially result in a prosecution under the Health and Safety at Work Act 2015. The extent of the investigation required will depend upon the seriousness and complexity of the allegations raised.
It is very common for complainants and witnesses to demand anonymity. However, it is an important principle of natural justice that an accused employee is given the right to refute an allegation. If there are issues of credibility, for example suggestions of collusion or maliciousness, then an employee will be at a disadvantage if they do not know the identity of the accuser.
In Brown v Bob Owens Retirement Village Limited (2013), an employee’s employment was terminated in reliance on anonymous complaints. The employer said that the complainants had been scared of retribution. The Employment Relations Authority found that the termination was unjustified and that there “must be a degree of particularity which identifies on a time and date basis at the very least what is supposed to have happened and to whom”.
If the complainant or witness wishes to remain anonymous, then you will have to consider whether you have enough evidence to proceed with the investigation without the information from that person or whether there is justification for withholding the complainant’s identity. The high threshold imposed by the Authority and Court is that the employer must have reasonable grounds to believe that there would be a genuine threat to the safety of the complainant if their identity was disclosed.
At the end of the investigation you should assure the complainant that the issue has been fully investigated, but inform him or her only of the general outcome of it; that is, whether it was upheld and (in bullying cases for example) what actions have been taken to prevent a recurrence. You should not disclose details, or what, if any, disciplinary action was undertaken.
Public or private sector employers may also receive complaints from whistleblowers. If a disclosure falls within the Protected Disclosures Act 2000, the complainant may receive certain protections including confidentiality and immunity from civil, criminal or disciplinary proceedings which might otherwise arise. However, the confidentiality and anonymity is limited because the Act provides that an employer can disclose the identity of the complainant if the principle of natural justice requires it.
If you would like any further information or advice about these matters, please contact our Wellington based employment lawyer Carolyn Heaton - email firstname.lastname@example.org, phone (04) 495 8908.