All public authorities should be in a position to receive complaints about the conduct of their staff. Inevitably, some of those complaints will lack merit. But that does not mean the complaint was vexatious or that it should not have been made.
A complaint is malicious if the complainant knows the allegation to be untrue. It is vexatious if the complainant is not in a position to reasonably believe it is true. Malicious complaints are made with the intention of causing the subject distress, embarrassment or some other detriment.
However, there are occasions where complainants with extraneous motives raise serious allegations which require further action. For example, allegations might be raised by a public officer’s ex-partner, political opponent or a disgruntled colleague. Whatever their motivations, they may raise legitimate issues.
Many complainants will be aggrieved by the issues they raise. However, the assessment of the complaint and any subsequent investigation will focus on the substance of the allegations, rather than the motivations or attitude of the complainant.
The Commission is aware of an occasion where an agency questioned the intention of an anonymous complaint who raised serious issues of workplace harassment. The agency devoted its time and resources to identifying the anonymous complainant with a view to pursuing them for misconduct, rather than considering the substance of the allegations raised.
On another occasion, an agency refused to deal with a member of the public who was known to make persistent complaints about trivial matters. However, on this occasion the member of the public was seeking to report her lost purse.
At times, a complainant’s motivation might not be immediately obvious, or the complaint may have been made anonymously. Some complaints which are made in good faith are ultimately found to be without merit. Often the complainant will not be aware of all the facts, or they may simply have misunderstood what occurred. This can usually be established during the course of an assessment or investigation. Those complaints and complainants should not be dismissed as vexatious.
It is an offence under the Independent Commission Against Corruption Act 2012 to make a false or misleading statement in a complaint. To date, only one individual has been charged with such an offence.
A proper complaint handling process should allow the receipt of complaints, even where they are potentially vexatious or malicious. Agencies should also have policies and procedures to address malicious complaints by complainants. This helps to ensure that the agency’s time and resources are not wasted.
It should be assumed that complaints are made in good faith, until there is evidence to the contrary. Where a complainant’s motives appear dubious, that should be but one consideration in deciding whether or not to take further action.
Resources
ICAC Integrity Spotlight – Managing Anonymous Complaints
