Evidencing psychosocial claims: the same rules apply

While psychosocial risk management has received a lot of attention recently, and perhaps more acutely since the introduction of psychosocial regulations into work health and safety legislation, it is important to remember that psychosocial risk has always created legal obligations for employers. 

Legal obligations in relation psychosocial risk arise in all aspects of the employment relationship, including performance management, disciplinary action, workers compensation, and work health and safety. It is worth remembering that one of the first prosecutions for workplace bullying occurred in 2010, 14 years before the introduction of psychosocial regulations in work health and safety legislation.

Despite the current status of psychosocial risk as a workplace issue, there is nothing in the regulation of psychosocial risk that has suddenly altered the legal rights and responsibilities that have always applied to the employment relationship.

Two recent cases have demonstrated how a lack of appreciation of those rights and responsibilities, or a misapplied overemphasis on protecting the rights of alleged victims of psychosocial misconduct can have unintended, and potentially damaging, consequences in a workplace. 

In the first case, Mojanovski v BlueScope Steel Limited [2024] FWC 1473, Mr Mojanovski’s employment was terminated based on allegations that he had threatened physical violence towards another employee.

The employee had previously been on a “first and final warning” arising out of an anonymous complaint about the way the employee had treated other workers.

Ultimately, however, Mr Mojanovski was found to have been unfairly dismissed, the termination was overturned, and he was reinstated back into the workplace.

The Commission was critical of the employer’s investigation of the allegations against Mr Mojanovski, but more critically the complainant who alleged that he had been threatened by Mr Mojanovski did not give evidence in the unfair dismissal proceedings.

In a statement to the Commission, one of the employer’s managers, Ms Tully, gave a statement saying:

It is BlueScope's position that it will not require [the Complainant] to participate in these proceedings unless he wants to, particularly given the nature of [the Applicant’s] conduct towards him. [42]

However, in a subsequent statement, which the commission described as the manager “extraordinarily, amending her evidence” Ms Tully made the following statement:

I was particularly concerned for [the Complainant’s] mental wellbeing and wanted to maintain a safe and comfortable work environment for him. [44]

In any event, the complainant did not give evidence and court observed:

The Complainant was clearly not unavailable. He simply chose not to be involved and the Respondent chose not to seek to compel the Complainant to give evidence, citing a claimed duty of care to the Complainant. Each contact by Ms Tully was by telephone and no medical certification was sought [47]

in reaching the decision that the termination is unfair, the Commission noted:

While it is trite to observe that were the alleged threat to have been made, there is no doubt it would constitute a serious breach of the Code of Conduct and Bullying, Discrimination, Harassment and Sexual Harassment Guideline, there was a complete absence of evidence before me to substantiate that any threat was made.

I have found the Applicant to be consistent, considered and compelling in his denial of the allegations. In accepting the Applicant’s evidence I consequently find that there was no threat of physical violence towards another employee, and so no valid reason for dismissal. [68] – [69]

In the second case, Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd [2024] FWC 2784, Ms Panchal’s employment was summarily terminated based on allegations that for a period of two years prior to her termination she had bullied and discriminated against numerous employees.

There were eight different allegations against Ms Panchal, stretching from May 2022 until January 2024. 

Part of the employer’s evidence was from a labour hire company to the effect that that they had received 26 complaints from workers about their “sub-human” treatment by Ms Panchal, which included complaints of yelling, racism and exclusion. However, the employer said that due to privacy reasons they would not provide the full names of these “victims of workplace bullying and harassment”. 

Moreover, like the Mojanovski decision, none of the workers who had apparently made allegations gave evidence in the proceedings.

In finding that Ms Panchal was unfairly terminated, the Commission was critical of the company noting that they were not satisfied that Ms Panchal had bullied or discriminated against anyone, and that:

Contrary to the company’s contention, the evidence in this matter is not compelling. It is scanty, conclusory, and largely second hand, that is to say, hearsay. [The company] put eight allegations of misconduct to Ms Panchal and referred in its evidence to many more. It appeared to believe that the sheer number of allegations against Ms Panchal presented a persuasive case of guilt. But not a single one of these allegations has been substantiated. [24]

What these cases demonstrate is that the normal ground rules of legal risk management and procedural fairness relating to employment and work health and safety issues still apply to allegations based on psychosocial risk.  

Organisations are expected to properly investigate allegations of psychosocial risk, in the same way they are expected to properly investigate any other allegations by or against employees in the workplace.  An important part of those investigations includes providing the alleged perpetrator with enough information to properly address the complaints against them.

Organisations are also expected to be able to produce sufficient evidence to support any decisions they take in relation to allegations against employees.

While employers are expected to look after the welfare of workers, including protecting them from bullying, harassment, or other conduct that might present a risk to their well-being, this obligation cannot be to the exclusion of the rights and well-being of other workers, including people who have been alleged to have engaged in inappropriate conduct.

Employers need to take a responsible and impartial view to assessing any allegations of inappropriate conduct in the workplace, and ensure they balance the rights and responsibilities of all parties.