The employee who complains but doesn’t want an investigation
It is not unusual for an employee to approach a manager to assist them with concerns that they have or to mentor them through a tricky situation with the express request that the manager not pass on the information to anyone else. Whilst the vast majority of concerns will be relatively simple and can be resolved by providing coaching or mentoring, on occasion, the concerns may be so serious that the manager has an obligation to disclose the matter and take further action, despite the employee’s wishes. Ignoring serious complaints or not taking further action on the basis that the employee has requested that a formal investigation not be conducted can potentially have disastrous consequences for the business.
In Swan v Monash Law Book Co-operative  VSC 326, an employee was being relentlessly bullied, harassed and intimidated by her manager. The employee went to the Board in 2003 to complain about the behaviour, however, the employee stated that she did not want the manager to be spoken to and advised the Board to “sit on it at this stage and take the comments on notice”. On this basis, the Board took no further action. The bullying continued and in 2007, the employee suffered a severe psychological condition. The Court, when considering whether the employer had breached its obligations to the employee, rejected the claim that it would have been inappropriate for the Board to speak to the manager when the employee had asked it not to. The Court stated:
“It was inappropriate for the defendant… to rely on choices made by its employees as to the employer’s proper response to the employee’s complaint… the employer is under an affirmative obligation to actively consider amelioration of a risk of injury and cannot abrogate that responsibility to its employee.”
The Court found that if the Board had acted appropriately in 2003 when first becoming aware of the complaint, it was likely that the employee would not have suffered the severe psychological condition. The employee was awarded almost $600,000 for past and future economic loss and damages for pain and suffering and loss of enjoyment of life.
Whilst handling informal complaints can be difficult for a number of reasons, ignoring the complaint altogether, no matter how trivial it might seem or that the employee does not wish for it to be investigated further, can have significant consequences on a business. Addressing complaints early on and when first becoming aware of them can reduce a business’ potential future liability, improve employee morale and loyalty to a business and decrease the risk of a future formal complaint arising.