From whistleblower hotlines to de-identified survey responses, managing anonymous complaints is becoming increasingly complex, with a growing number of anonymous reporting mechanisms available to employees.

Imagine an anonymous note left on a desk, a late-night portal entry, or a sudden increase in complaints within a particular team. To an HR professional, these are the first signs of a deeper issue.

You know a fire is burning, but you can’t tell exactly who started it. On top of that uncertainty, you may feel you lack the information to investigate further. However, dismissing an anonymous complaint is a gamble that rarely pays off, especially when considering how to uphold your psychosocial risk management obligations as an employer.

Below, Will Snow, Director of Snow Legal, outlines the key considerations HR should take to unpack complaints and mitigate legal risk for their organisation.

1. Does HR have a legal obligation to investigate every anonymous tip? 

No, HR is not legally required to investigate each and every anonymous tip. However, any indication of serious misconduct or risks to employee wellbeing would enliven an employer’s safety obligations, says Snow.

“All the safety laws around Australia tell HR that you’ve got to do as much as you reasonably can to maintain and improve safety, which includes psychosocial safety.”

Psychosocial safety encompasses the emotional experience of employees around their colleagues and how this impacts their sense of personal wellbeing, so complaints rooted in the behaviour of colleagues should be deemed just as serious as physical safety risks, says Snow.

The extent to which the complainant is truly anonymous bears significantly on the difficulty of assessing the complaint.

In the instance where a complainant is known but requests anonymity for their safety or privacy, it is often easier for HR to manage and ensure natural justice, says Snow.

“You can preserve people’s identity and still provide somebody who is responding to the complaint with enough fairness to satisfy, for example, the Fair Work Commission, that they knew what they were being asked about.”

Where it becomes difficult is when the employee lodges their complaint using anonymous reporting mechanisms, such as a whistleblower hotline or de-identified survey responses, says Snow. 

Companies that fall under whistleblower protection provisions have a requirement to ensure they have a mechanism for receiving those complaints, usually a hotline or an anonymous portal.

2. How can HR handle an anonymous complaint fairly and soundly?

When there is objective evidence available, it becomes much easier to verify a complaint. From email and swipe card access records, to CCTV footage and social media content, there exists a suite of materials which can be used to verify the credibility of a complaint.

However, this usually isn’t the case for completely anonymous complaints. Often it’s difficult to know where to look for supporting evidence.

As such, Snow says the first step HR should take is to seek to understand it better by assessing the credibility and seriousness of the accusations.

“Where there’s smoke, there’s fire, but we don’t know where the fire is, so we’re going to ask and dig deeper.” – Will Snow, Director, Snow Legal

Snow offers four practical ways to achieve this:

1. Review past issues: Complaints often arise in clusters, speaking to broader issues in the organisation. The first step HR practitioners can take is to conduct a pulse check with management.

It can be as simple as asking, “‘Have similar issues been raised in the past?’ because usually they would have been.”

2. Hold a sensitive conversation: When speaking with employees who you suspect may be affected by issues raised in the complaints, Snow suggests framing these discussions as routine check-ins. 

For instance, you might say, ‘I’m just checking in with the team to see how things are going. Have you been noticing any issues recently?’.

“If you can take steps to understand it more deeply and then build rapport with the person who’s likely experienced the behaviour, then you’re going to be able to to progress it. If the employee feels comfortable, they may be able to offer more concrete evidence to bolster the claims made.”

3. Conduct relevant employee training: “If you hit a dead end, remind everybody about their policy expectations. Do a refresher on bullying, harassment, inclusion, diversity,” says Snow.

He adds that bringing everyone back on the same page can be really helpful in not only mitigating the issue more broadly but potentially encouraging employees to come forward with information to verify complaints.

4. Implement a culture survey: If you need to assess the credibility of a serious standalone complaint (or a cluster of concerns), the best next step is to survey the organisation, says Snow. If the issue is revealed to be a growing trend, it lends the accusations greater credibility.

Questions like, ‘Have you experienced concerns in the past 6 to 12 months regarding the leadership style of anyone that you work with?’, can be useful, he adds. 

3. Can we fire someone over an anonymous complaint?

Firing someone based on an anonymous complaint poses significant legal risk for an organisation, says Snow.

“The exposure would be an unfair dismissal claim if you fire someone who is eligible to bring a claim – for example, if they earn below the high income threshold [$183,100].”

However, anonymity does not automatically mean you cannot uphold natural justice.

“If a complaint has been made about someone, that person doesn’t necessarily need to know the identity of the person making the complaint. They just need to know enough detail so that they have a chance to respond.”

The Fair Work Commission (FWC) upheld this reasoning in a case, whereby the employer’s decision to dismiss a factory worker was deemed unfair since he was not given the chance to review and respond to the claims anonymously made against him.

So how can organisations avoid the risks of an unfair dismissal claim in the face of serious anonymous complaints? Snow advises HR to investigate all claims about unsafe behaviour, taking into account the credibility and seriousness of the claim.

Confirming credibility is difficult without identifying the person who made the complaint, but there are ways for HR to ascertain this, he says.

“If there’s a volume of consistent concern, that’s what gives credibility some support, and it might also give the issue of seriousness some support.

“I’ve had a number of matters where you’ve got an idea about where [the employees] work and sometimes, if everyone’s saying the same thing about a particular colleague, then you get an idea of what the issue is.”

However, HR should always inquire further before using anonymous claims as grounds for disciplinary action, says Snow.

If you suspect an employee has engaged in misconduct, what should you do next? AHRI’s Investigating Workplace Misconduct course can provide some answers.

4. What are common missteps organisations make around handling anonymous complaints?

The biggest mistake an organisation can make is to do nothing, says Snow. 

“You know you’ve got these issues and you can’t just say, ‘Well, there’s no name on it. We do nothing’. You’ve got to inquire further.”

Failing to act can create a perception among employees that the business doesn’t listen to them. For HR, you may notice an uptick in absenteeism, sick leave, stress leave requests and resignations, says Snow.

It can also lead to cultural fractures, he adds.

“If somebody has a concern with behaviour, it’s usually the tip of the iceberg,” says Snow. “If you ignore it, it’ll just snowball.”

Another misstep, although much less common, is exploiting concerns to serve an ulterior motive.

Snow shares the example of an organisation which used an employee survey as grounds for mass redundancy. The survey revealed that a cluster of people in a particular team held shared concerns about a supposedly oppressive manager. 

In response, the HR team decided to make the affected team members redundant, basing the dismissal on their dissatisfaction.

“They felt like their trust had been broken,” says Snow. 

While this is a rare act of unsound management, Snow warns that it carries a pertinent lesson.

“You’ve got to be careful when you’re carrying out targeted measures in response to broad themes. This is the challenge for HR – you’ve got all this data, what do you do with it?”

Treat anonymous complaints as a blessing in disguise, says Snow. They are the key to navigating this challenge, using the volume of data available to HR as a starting point for deeper investigation and, ultimately, positive organisational change. 

“You’ve got to think about it carefully. Look at it with a safety lens and the next steps will become clearer.”

Having a difficult conversation at work can be an uncomfortable experience. AHRI’s course will arm you with the tools to effectively prepare, plan and conduct a difficult conversation while maintaining harmonious working relationships.

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.