Grievance procedures give employees a legitimate, safe avenue to raise concerns about conduct, treatment, or policy breaches. In principle, they protect people and resolve issues early. In practice, particularly in long-running or highly personal disputes, the process itself can become a battleground. What begins as a single complaint can quickly spiral into a web of counter-allegations, procedural objections, and escalating demands, a phenomenon that looks like “weaponisation” of the process.
This article examines why counter complaints emerge, the risks they pose to fair and timely resolution, and how organisations operating under Australian workplace laws can manage them through a fair and effective workplace investigation without letting the process itself become the dispute.
What is a Counter Complaint, and Why Does It Happen?
A counter complaint arises when a respondent to a grievance, instead of, or in addition to, responding to the allegations, raises their own complaint against the original complainant, a witness, the organisation or the investigator. Sometimes these are genuine and warranted; a workplace dispute is rarely one-sided, and it is entirely possible that both parties have legitimate grievances against one another.
However, in practice, counter-complaints can also be strategic. They are often used to:
- Divert attention away from the original allegation
- Create a perception that the complainant is also “at fault,” diluting the seriousness of their claim
- Delay proceedings by requiring a fresh investigation
- Create intimidation, by causing a perceived threat of legal action
- Pressure the organisation into a “both sides” resolution, such as informal mediation, rather than a substantive investigation.
This dynamic is particularly common where there is a history of unaddressed performance issues, or entrenched interpersonal conflict, long employment histories, or where one party holds seniority over the other. It is also increasingly common in matters involving allegations of unfair conduct such as bullying or discrimination, where the subject matter is inherently sensitive and emotionally charged.
The Legal Backdrop in Australia
Australian employers do not operate in a vacuum when managing grievances and counter-complaints. Several legal frameworks shape how these processes should be conducted.
Procedural fairness (natural justice) is a foundational principle in Australian employment law, particularly relevant to unfair dismissal claims under the Fair Work Act 2009 (Cth). The Fair Work Commission has consistently held that an employee accused of misconduct must be told the allegations against them, given a genuine opportunity to respond, and have that response genuinely considered before any adverse action is taken. This obligation does not disappear simply because a counter-complaint has been raised; each allegation, against each party, still requires its own fair process.
Work health and safety obligations under the model Work Health and Safety Act (adopted in most states and territories, with Victoria operating under its own OHS Act) increasingly extend to psychosocial hazards, including conflict, bullying, and poorly managed grievance processes. Safe Work Australia’s psychosocial hazards guidance specifically identifies poorly handled interpersonal conflict and unclear or inconsistent processes as risk factors. A grievance process that spirals into competing complaints without structure can, in itself, become a psychosocial risk the organisation is obliged to manage.
General protections provisions under the Fair Work Act prohibit adverse action against an employee for exercising a workplace right, which includes making a complaint or inquiry in relation to their employment. This is significant in the counter-complaint context: if a counter-complaint is raised in a manner that appears retaliatory, or if the organisation’s handling of it disadvantages the original complainant because they made a complaint, this may expose the organisation to a general protections claim.
Anti-bullying jurisdiction under Part 6-4B of the Fair Work Act also allows workers to apply to the Fair Work Commission for orders to stop bullying, which can apply irrespective of how internal grievance processes are unfolding. Delayed or poorly managed internal processes do not prevent an employee from seeking this external avenue.
Given this legal context, an organisation’s obligation is not simply to “get through” the grievance process, but to ensure each complaint, original and counter, is handled fairly, promptly, and without one being used to unfairly diminish the other.
The Risks of Poor Management
When counter complaints are not carefully compartmentalised, several risks emerge.
Investigative paralysis is common. Investigators can find themselves trying to resolve multiple, interlinked allegations that can significantly extend timeframes, create priority confusion and fatigue witnesses and affected parties.
Scope creep can have the unintended effect of enabling complaints that may lack substance to divert attention from the matters properly within scope. This can create unnecessary disruption, delay the timely progression of the process, and potentially undermine procedural fairness and natural justice.
Perceived or actual bias can also arise. If counter complaints are handled informally or dismissively compared to the original complaint (or vice versa), one party may reasonably perceive the process as unfair, a perception that can later support a legal claim, even where none was intended.
Complainant withdrawal or disengagement is another significant risk. Employees who raise a legitimate concern and are met with a counter complaint may feel punished for speaking up, discouraging future reporting and directly undermining the purpose of having a grievance policy in the first place.
Escalating cost and duration follow naturally from unmanaged parallel investigations, often resulting in prolonged uncertainty for all parties and the broader team.
How Organisations Can Compartmentalise Counter Complaints
Compartmentalise. Treat each complaint as a discrete matter, assess whether it constitutes a genuinely separate allegation requiring its own scope, evidence, and findings. Where allegations are closely related (for example, both arising from the same meeting or incident), some efficiencies can be found in shared fact-finding, but the findings and outcomes for each complaint should remain distinct.
Establish clear terms of reference early. For each complaint, define the specific allegations being investigated, the applicable policy or code of conduct, and the standard of proof being applied (typically the balance of probabilities). This prevents scope creep, where unrelated grievances are drawn into an investigation simply because they were raised at the same time.
Use separate investigators where appropriate. Where a counter complaint involves allegations against the original complainant, and particularly where there is any risk of perceived bias, consider using a separate investigator, or at minimum, ensure the same investigator does not allow findings on one complaint to influence their assessment of the other.
Maintain procedural fairness for every party, in every complaint. Each person under investigation, regardless of who “started” the dispute, is entitled to know the allegations against them, respond, and have that response considered on its merits.
Actively manage timeframes. Set and communicate realistic timeframes for each investigation, and resist requests to indefinitely pause one complaint pending the outcome of another unless there is a genuine evidentiary reason to do so.
Watch for retaliation. Any counter-complaint made shortly after an original complaint, should be scrutinised for its substance, timing, and motivation, not to presume bad faith, but to ensure the organisation is not inadvertently facilitating retaliation.
Communicate transparently, within confidentiality limits. Parties should understand that their complaint is being taken seriously, that a process is underway, and roughly when they can expect an update, without organisations disclosing details of the other party’s separate complaint.
Final Thoughts
Counter complaints are not inherently improper; genuine grievances often do exist on both sides of a workplace conflict. The risk lies not in the counter complaint itself, but in allowing it to derail, dilute, or delay the resolution of legitimate concerns. By compartmentalising each complaint, applying consistent procedural fairness, and remaining alert to retaliation and bias, organisations can prevent grievance processes from being weaponised, protecting both the integrity of the process and the wellbeing of everyone involved.
If your organisation is managing competing complaints or wants to strengthen its grievance procedures, our HR Consulting Support Services Australia team can help you handle each matter fairly, consistently, and in line with your legal obligations. Speak with an HR consultant today to get practical, confidential advice tailored to your workplace.
