Conducting Internal Workplace Investigations

When conducting internal workplace investigations employers may face accusations such as;

  • The investigation or investigator is bias
  • There is/was a conflict of interest
  • There is/was undue influence from senior management
  • The investigation was not conducted in a proper manner
  • The investigation took too long.

These are common complaints from dissatisfied parties.

To ensure that you avoid such complaints when conducting internal workplace investigations we suggest the following;

  • The investigation or investigator is bias – ensure that the person appointed to conduct the investigation does not have a connection to the parties or an interest in the outcome that will affect their judgment or how they conduct the investigation.
  • There is/was a conflict of interest – similar to the first point it is important to ensure that the person appointed to conduct the investigation does not have any interest in the outcome. Conflicts of interest like bias may be actual or perceived.
  • There is/was undue influence from senior management – It is important to ensure from the outset that management understand that the outcome of the investigation will be based on the evidence and not the wishes of management.  The outcome of the investigation must be be moulded to fit a predetermined outcome.
  • The investigation was not conducted in a proper manner. The use of the correct process to ensure procedural fairness is very important. You must ensure that the person appointed to conduct the investigation has the necessary investigative skill and experience especially in the area of investigative interviewing.
    • The ability to draft and use the following documents are also of paramount importance
      • Investigation plans
      • Risk assessments
      • Letters to the parties
      • Allegation letters
      • Interview plans
      • Interim & final report
  • The investigation took too long – It is important to ensure that the person appointed to conduct the investigation has the ability to conduct the investigation in a timely manner. We all know that everyone is busy and investigations take time, however being involved in an investigation as the complainant, the person subject of the complaints or a witness is stressful, employers should aim to minimise the stress by conducting the investigation in a professional and efficient manner. Failure to do so can result in secondary complaints and legal action due to the stress and a potential breach of the employers duty of care.

AWPTI can assist you with complete investigation services, however if you wish to DIY we suggest that you purchase our comprehensive Workplace Investigation Toolbox that contains 40 documents and manuals

  1. Step by step workplace investigation instructions (20 documents) (pdf)
  2. Complaint Analysis Chart (pdf)
  3. Investigation Flow Chart (pdf)
  4. Investigation Interview Manual (pdf)
  5. Procedural Fairness Manual (pdf)
  6. Reasonable Management Action Manual (pdf)
  7. Sexual harassment Manual (pdf)
  8. Evidence Manual (pdf)
  9. Template Risk Assessment form (Word doc)
  10. Template investigation plans x 2 (Word doc)
  11. Template letter to the complainant (Word doc)
  12. Template letter to the witnesses (Word doc)
  13. Template initial letter to the respondent (Word doc)
  14. Template letter of allegation to the respondent (Word doc)
  15. Template complainant interview guide/script (Word doc)
  16. Template witness interview guide/script (Word doc)
  17. Template respondent interview guide/script (Word doc)
  18. Sample witness statement (Word doc)
  19. Sample interim report (Word doc)
  20. Sample final investigation report (Word doc)

The word Docs allow you to use the templates and customise them for your investigation. Click here for further details or to purchase for only $795.00

If you don’t wish to purchase the entire toolbox you can purchase the manuals separately – More details

You may be interested in these articles
Drafting allegations – http://awpti.com.au/workplace-investigations-drafting-allegations/
Drafting allegation letters – http://awpti.com.au/workplace-investigation-allegation-letters/
(The templates in the document toolbox can ensure that you get this right)

AWPTI Investigation services – More details

AWPTI can also provide you with Workplace Investigation training – More details

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

Workplace policies sexual harassment investigation – A recent case before the Fair Work Commission highlighted the importance of having well written workplace polices in place.

In Jay Higgins v Coles Supermarkets Australia Pty Ltd,  Mr Higgins, a baker employed by Coles was dismissed for sending his manager sexually explicit and pornographic images.  Mr Higgins had been requested to provide a medical certificate for his injured thumb. Instead, he sent his manager a picture of a penis, followed by a picture of a thumb in a bandage next to a penis and an additional photo of a penis wrapped in a bike chain.

Commission Simpson held that the manager’s response to the first text message demonstrated he found the message funny, which led Higgins to believe he accepted the joke. After receiving the manager’s response to the second text message indicating he no longer accepted the joke, it was not disputed that Higgins ceased to send any further images.

Commissioner Simpson was not satisfied that Higgins’ conduct fell within the definition of sexual harassment in Coles’ Equal Opportunity Policy, however he found his conduct was a clear breach of Coles’ code of conduct, which required employees to treat others with dignity, courtesy and respect.

Commissioner Simpson also took a dim view of the baker’s refusal to take any responsibility for his conduct when he was giving evidence before the FWC, which resulted in Commissioner Simpson accepting Coles’ evidence that it could not hold confidence in the baker’s ability to comply with Coles’ core values under the Code.

In finding in favour of Coles, Commissioner Simpson determined that there was a valid reason for Mr Higgins  dismissal and rejected Mr Higgins argument that he had been denied procedural fairness either because he had not been made aware of the allegations before the meeting or had not be provided with an adequate opportunity to respond.

Workplace policies sexual harassment investigation – Lessons for employers

  • Your workplace polices and Code of Conduct are the law within your business, as a workplace investigator along with details of a complaint or incident they are the first thing I ask to see at the commencement of an investigation.
  • Generally any form of workplace sexual harassment, bullying and harassment or discrimination involves the alleged perpetrator showing a lack of respect for the victim.  Many polices include specific definitions but it is importance that they require employees to treat others with dignity, courtesy and respect. This makes my job much easily as the allegation/s I write are framed in reference to your policies. See more information about writing allegations
  • When investigating matters involving misconduct, showing a breach of a policy or Code of Conduct is far more straight forward than showing a breach of the Fair Work Act or sexual harassment laws.
  • When investigating matters such as sexual harassment employers are advised not to rely on cases such as this where some procedural flaws were forgiven, it is important to ensure that procedural fairness is important and should be adhered to.
  • If in doubt call in an expert – AWPTI can assist with investigations – More details and Investigation Training – More details

Workplace policies sexual harassment investigation – Other articles that may be of interest

Workplace Investigations – getting it right the first time
Procedural Fairness in workplace investigations

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria.
Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

 

Performance Improvement Plan
Workplace complaint Investigation

Performance Improvement Plan Workplace complaint Investigation – How do you turn a Performance Improvement Plan into a complaint requiring workplace investigation?

I have conducted many workplace investigations that have result in a complaint of bullying and harassment being lodged against the manager who has placed an employee on a Performance Improvement Plan. The questions I must always address in these types of matters is, “Was the Performance Improvement Plan Workplace an example of Reasonable Management Action”.
To answer this there are two components I must consider;

  1. Was the Performance Improvement warranted?
  2. Was the Performance Improvement Plan carried out in a reasonable manner

The Fair Work Act has defined Reasonable Management Action as it applies to workplace bullying.

‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’
Fair Work Act s789FD (2)

The first hurdle “Was the Performance Improvement warranted?” is generally easily jumped as there is usually a reason why a manager commences performance improvement.

It is the second hurdle, the application is where problems and complaints arise from the way in which the Performance Improvement Plan was carried out.  Here are some suggestion of what NOT to do.

(1) Surprise

A Performance Improvement Plan should not be a surprise.  A good manager will coach staff during regular catch-ups or one on ones and identify any problems early. If you have a tendency of avoid issues or not having or cancelling one on one feedback sessions and then surprising your staff with complaints about their performance and going straight to a formal Performance Improvement Plan that may be considered as unreasonable and you may receive complaints.

If you intend to discuss placing an employee on a Performance Improvement Plan be clear in your invitation, for example if you are doing it via email it should be described as a;
“Meeting to discuss your performance” not a “catch up” unless it is accompanied with to “discuss your performance” I never recommend “a little chat”

“(2) Expecting too much

If a staff member is struggling with their role perhaps it is too much for them, perhaps they really don’t have the skill. If you make a demand of improved performance without understanding the problem that may be considered as unreasonable and you may receive complaints.

(3) Not clearly explaining the issues/problems

A component of procedural fairness is the right to know. The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;

(b) whether the person was notified of that reason

(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal

Failure to notify and or explain the issue to your employees may be considered as unreasonable and you may receive complaints and in the case of a dismissal it may be considered to be harsh at the FWC.

(4) Not Listening

Another component of procedural fairness is the right to be heard. The right to be heard is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(c)    Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

You MUST listen and take into account the employees response to the issues you raise with an open mind, remember treat your employees in the same manner that you would like to be treated in their place.

(5) Not taking your time

Be patient, the goal of a Performance Improvement Plan is to create a better employee. This may take time, Rome wasn’t built in a day, don’t rush things be systematic .

(6) Not having an actual plan

A Performance Improvement Plan should not be ad-hoc nor should it be one size fits all, Carefully tailor your plan to suit the needs of the business and the specific employee.

If you don’t do any of these things and of course you don’t act in an aggressive, bullying, harassing or inappropriate manner during the process and there is a complaint, an investigation is more likely to find that it was “reasonable management action carried out in a reasonable manner.”

NOTE: Investigations should be carried out by experienced investigators who have a comprehensive understanding of the Fair Work Act as it applies. Need help, contact us for full or assisted investigation services, more details

If you are not sure about Reasonable Management Action or Procedural Fairness AWPTI can assist.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professionals or workplace investigators

 

Sexual harassment investigations proceed with caution – In the current climate it is very important that in the case of complaints of sexual harassment that employers proceed with caution and ensure that they conduct rigorous investigation before taking action.

Evidence should be carefully gathered, analysed and weighted up as to whether is meets the required standard of on the balance or probabilities.

Recently at the Fair Work Commission in the case of Wilson v Anglo Coal  the applicant Mr Wilson lodged an unfair dismissal application. In this matter a person described as Person A resigned and made four separate allegations of improper conduct against Wilson.  Person A was first female trainee employed at the mine and was 19 years old. The allegations of sexual harassment allegedly breached the ‘Anglo American Equal Employment Opportunity and Anti-Bullying Policy’ and Guiding Values.  The applicant Wilson was dismissed after an investigation.

The Commission considered the test in Briginshaw and held that it was not satisfied that there was clear and cogent proof that supported the allegations. Commissioner Spencer held that a valid reason for termination not made out and found the dismissal to be harsh, unjust and unreasonable. The Commissioner ordered reinstatement and continuity of employment and service.

During the course of the investigation a number of witnesses were interview many however they were only asked 7 questions that were provided to the commission via hand written notes made by the interviewer a HR  Manager. (Wilson v Anglo Coal  at [16]). Without making too much comment on the investigation process, anytime I have interviewed witnessed during sexual harassment investigations I have asked many more than 7 questions and the interviews have been audio recorded with transcripts draw up.

Sexual harassment investigations – Lesson for employers

* Always ensure that you have conducted a thorough investigation
* Ensure that your evidence supports the allegation before making a final decision on the matter.
* If in doubt get advice.

Sexual harassment investigations – How can AWPTI help

Conducting sexual harassment investigations are complex matters requiring a high level of investigative skill that should not be underestimated.  We have 5 options that may assist you, we can;
1. Conduct the entire investigation for you, that including all facets of the investigation such as conducting interviews and analysing the evidence, details here
2. Provide you with comprehensive workplace investigation training, we conduct 1, 2 & 3 day courses to suit your needs, details here
3. Provide you with peer mentoring a guide you through the investigation, details here
4. Conduct an investigation review during the investigation including a review of your letters of allegation details here
5. We can supply you with our Workplace Investigation Document Toolbox that contains 40 documents and manuals including a template letter of allegation, more details and to order here

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators

 

Workplace Investigation Allegation Letters. The previous post about workplace investigation allegation letters (more details here) addressed the why you should use them. This article addresses the how and the format of allegation letters.

In a workplace investigation allegation letters are used to advise the person subject of the complaint about what has been alleged and also to invite that person to attend an interview to provide their version of events or their side of the story.

There are certain components that I recommend you include in an allegation letter, the section in italics are examples only;

The introduction: This generally tells the person subject of the complaint that a complaint has been made in reference to the alleged behaviour and will often nominate the complainant, for example;

(Name of investigator) has been assigned (if internal) or Investigation company (name) has engaged (in the case of an external investigator) to conduct an investigation and provide a report into complainant made against you by (complainant) that you have engaged in conduct that is inconsistent with (the insert name of company) Code of Conduct and the (insert name of policy potentially breached).

(Name of company) has an obligation to investigate these allegations

The invitation to attend an interview: This section will contain details of the where and when the interview will take place and details of the investigator. 

The investigation will be conducted by name of investigator (in the case of an external investigator)

On (Insert date, time and location) you are invited to meet with (insert name of investigator), to provide your response to the allegations made against you.

Notation about the support person: The Fair Work Act states that an unreasonable denial of a support person during an interview that could result in the dismissal of the employee might be considered to be a breach of procedural fairness guidelines and the dismissal found to be harsh. We recommend always offering a support person.

You are welcome to bring a support person with you, but we remind you this meeting is for you to respond to the allegations personally and present any information you would like taken into account. The role of this support person is as a witness or adviser but not an advocate. The support person must not be involved in the process or be someone that has been or may be interviewed in relation to the matter.

More details: At this point you may insert the details of the policy or section of the Code of Conduct the respondent has allegedly breached.

At the meeting you will be asked to respond to allegation/s that you have behaved in a manner that is not consistent with the (Name of company) workplace bullying policy;

(Name of company) Workplace bullying policy (insert exerts from the Code of Conduct for example).

            Standards of Conduct – The standards expected of employees include, but are not limited to:

Treat all fellow employees, customers and other third parties with courtesy and respect
Not engaging in bullying or harassing behaviour of any nature

To assist in the investigation, please be prepared to respond to each of the allegation/s in the attached table in your meeting with (investigator). The interview will give you an opportunity to provide information in regard to the complaints.

Information about the format of the interview: You should inform the respondent about how you intend to conduct or record the interview. NOTE you CANNOT record a person during an interview or otherwise without their knowledge, to do so may be a breach of the law, please check applicable law in your jurisdiction. In New South Wales it is the Surveillance Devices Act 2007.(full Act here)

The interview will be digitally recorded and a copy of the transcript will be provided to you as soon as it is available (if applicable). As part of the process, you may identify potential witnesses for the purposes of possible interviewing in relation to the complaints.

If you have any documents which you believe may be of assistance, please bring them with you. 

All information obtained during this investigation will assist in determining whether you have engaged in the misconduct as alleged and the making of a recommendation regarding whether or not disciplinary action is appropriate. 

Information about potential outcomes: It is important to advise the respondent of the potential outcomes especially if termination is a possibility,

Disciplinary action, if appropriate can include:

  • A formal apology;
  • counselling;
  • letter of warning
  • transfer/demotion;
  • dismissal;
  • Other forms of disciplinary action such as deductions from salary

Outcome of investigation

You should note no conclusions have been reached regarding the truth or otherwise of the allegations in the attached table.  The process being followed in this investigation is designed to ensure that you have a full and fair opportunity to respond before any conclusions are reached.

Confidentiality, victimisation and counselling: This is also very important to advise the respondent,

This investigation is confidential. You are asked not discuss it with any person who works at (the Company) or is closely connected to (the Company) except any person who is acting as your support person.  You must not discuss or mention the investigation or the complaint in writing or on social media, such as Facebook or Twitter.

The confidentiality restrictions applied to this investigation are to protect all parties involved, and apply to your support person also.  The confidentiality restrictions are also to reduce the likelihood that anyone may be victimised as a result of involvement in the investigation.  Victimisation is unlawful and can include criticising, threatening or abusing someone for making a complaint or being involved in an investigation process.

You can access employee assistance through (the Company) if you would like to – please contact (the Company) HR for further details if feel you require any support in this process.

The table of allegations: This will consist of the exact allegations you are asking the respondent to address during the interview

It is alleged that at 10.30am on Monday 1 January 2018 in the general office area, you behaved in that was inconsistent with the ABCDE (Company) Workplace Bullying policy when you spoke to Mary Co-worker in an intimidating and demeaning manner, when you said in a loud voice “What sort of idiot are you, you need to be sacked”.

More information about drafting allegations can be found here

Workplace Investigation Allegation Letters – How can AWPTI help you:

Drafting letters of allegation is a skill that should not be underestimated.  We have 5 options that may assist you, we can;
1. Conduct the entire investigation for you, that includes drafting the letters of allegation, details here
2. Provide you with comprehensive workplace investigation training, we conduct 1, 2 & 3 day courses to suit your needs, details here
3. Provide you with peer mentoring a guide you through the investigation, details here
4. Conduct an investigation review during the investigation including a review of your letters of allegation details here
5. We can supply you with our Workplace Investigation Document Toolbox that contains 40 documents and manuals including a template letter of allegation, more details and to order here

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators.

Workplace investigations drafting allegations – One of the most important parts of workplace investigations is the drafting of the allegations to be put to the person subject of a complaint. There are a number of important considerations;

Timing: Personally I interview the complainant first, then witnesses and then gather any other available evidence before attempting to draft allegations. I know of others who like to interview the respondent (the person subject of the complaint) earlier, but I prefer to have as much information as possible.

Content: An important part of the allegation is to ensure two of the components of procedural fairness are adhered to;
1. The right to know – the allegation must contain enough information so that the respondent knows what has been alleged.
2. The right to be heard – the allegation must contain enough information to allow the respondent to be able to make a response, should they wish to do so.

Format: There are various ways to format the allegation. When I draft an allegation it should consist of (as much as is known)
* Time and date
* Location (if important)
* The parties (complainant and respondent)
* The policy that relates to the behaviour or complaint.
* How the behaviour was inconsistent with the policy

An example of an allegation;

It is alleged that at 10.30am on Monday 1 January 2018 in the general office area, you behaved in that was inconsistent with the ABCDE (Company) Workplace Bullying policy when you spoke to Mary Co-worker in an intimidating and demeaning manner, when you said in a loud voice “What sort of idiot are you, you need to be sacked”.

The details:
* Time and date – Try to be as specific as possible, but you can’t use terms such as “at around”. Often, especially in bullying complaints the reports are delayed and may be historic, you may have to use between dates.  This makes it harder for an accurate response but it may be all you have.
* Location – if it is relevant include it.
* The parties – The complainant must be advised that their identify will be revealed to the respondent as part of procedural fairness.
* The policy that relates to the behaviour or complaint – Be specific. In the letter of allegations that I draft (which I will write about in part two of this article) I often include parts of the policy that the person subject of the complaint will be asked to respond to.
*The behaviour that was inconsistent with the policy – THIS IS VERY IMPORTANT and is an area where I see a lots of mistakes being made. You must be very clear about the terms you use. For example in the allegation about I used the terms “intimidating and demeaning manner.”

Intimidating came from the words used and the statement/interview from the complainant when asked how she felt. In this case there was a power unbalance with the respondent being able sack or have the complainant sacked in addition it was said in a loud voice.
Demeaning also came from the words used and complainant statement and that they were said in the general office in front of other staff.

You should also ask the complainant how they felt, be careful here, if they say “I felt intimidated” don’t put your own views on it and use for example the word ‘”Threatened” as you may not have the evidence to back up the use of that word, consistency is the key

As a side note when I conduct an investigation, I do all the paperwork including letters to the parties and especially the allegations.

Other terms: With any term you use you must be specific about the “how” For example if John Citizen bullied Mark Co-worker, how did he do it, things to consider:
* What was said
* Any contextual issues
* relationships
* The tone of voice (angry, aggressive etc)
* The volume (Don’t use the work yelled for example unless you have evidence.  If someone mentions yelled or raised voice during an interview I will ask this question “If we are now talking at level 3 on a scale of 1 – 10, give a a number for how loud it was ?”
*
Where there any other actions, where were you, such as how close did they stand, were you seated the list can go on, again be specific.

Well written allegations will provide the respondent with enough detail to respond without giving away all of your evidence.

Order: Personally I prefer to list the allegations in date order ranging form the most recent. I may change this process if the more serious allegations are out of that order.  In that case I co-list then allegations in order of seriousness and date.

Quantity: More is not necessarily better, don’t draft 150 allegations if 10 will do.  Don’t draft allegations for the sake of it, have evidence and don’t duplicate. 

Proof: The investigation, the allegations and the respondent interview are designed to help the investigator to prove or disprove the complaint, things to consider;
* You shouldn’t make up you mind about guilt or innocence prior to hearing the respondents version of events.
* Allegations should have evidence to back them up, it is up to the investigator to weight up the evidence at the conclusion of the investigation.
* You may draft an allegations with limited or slim evidence but the weight of that evidence must be considered during the final report.
* In the case of Paulson v Industrial Relations Secretary (Department of Justice) the NSW Industrial Relations Commission found that out of the 42 allegations (Full judgment available on our download page) the majority were not proven to a satisfactory standard and those that were proven did not warrant dismissal.

How can AWPTI help you: Drafting allegations is a skill that should not be underestimated.  We have 5 options that may assist you, we can;
1. Conduct the entire investigation for you as as i mentioned that includes drafting the allegations, details here
2. Provide you with comprehensive workplace investigation training, we conduct 1, 2 & 3 day courses to suit your needs, details here
3. Provide you with peer mentoring a guide you through the investigation, details here
4. Conduct an investigation review during the investigation including a review of your allegations details here
5. We can supply you with our Workplace Investigation Document Toolbox that contains 40 documents and manuals including a template letter of allegation, more details and to order here

Other articles that may interest you

Letters of allegation
Procedural fairness

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators.

Workplace Investigation Employers duty of care.

Workplace Investigation Employers duty of care – Do employers owe a duty of care to employees during a workplace investigation? This question will be examined this year in an appeal to the High Court. The decision could have significant and widespread implications for employers, employees and HR professionals when conducting a workplace investigation.

The High Court granted an employee special leave to appeal the decision in the case of Govier v The Uniting Church in Australia Property Trust. This decision concerned the liability of a disability services provider when one of its employees Ms Govier who was attacked by a colleague. Ms Govier required hospitalisation and claimed that she feared that she would die during the attack, she subsequently developed chronic post-traumatic stress disorder and depressive disorder.

Immediately after the Incident, Ms Govier telephoned her supervisor and advised him that she had been attacked by a colleague, that she had telephoned the police, and that she was going to hospital.

The employer immediately commenced an investigation on the same day preparing and delivering a letter to the Ms Govier’s home that required her to attend an investigative interview on the following day and directed her not to discuss the incident with any other person. The letter also outlined that Ms Govier was stood down on full pay pending the determination of the investigation. Ms Govier received the letter while she was still in hospital as a result of the Incident.

Ms Govier did not attend the interview, she provided her employer with a medical certificate that advised that she was unfit for work. Two weeks later, the employer wrote another letter to Ms Govier claiming that she had refused to attend the interview and that its preliminary finding was that she had engaged in violent and inappropriate behaviour against her colleague. Ms Govier was given five days to show cause as to why termination of her employment was not warranted. Ms Govier did not return to work and her employment was ultimately terminated.

Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier argued that the decision by her employer to issue the letters in connection with the workplace constituted a breach of a duty of care owed by the employer. Ms Govier was unsuccessful and appealed to the Queensland Court of Appeal . The QCA ultimately agreed with the District Court, finding that no damages were payable because the employer did not have a duty to avoid such harm in the course of investigating the incident. The QCA followed the authority of State of New South Wales v Paige. In that case, the NSW Court of Appeal found that the appellant did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to the respondent.

In the High Court, it will be alleged that the employer knew or ought to have known that sending the first letter immediately after the incident would aggravate Ms Govier’s psychiatric injuries. It will also be argued that Ms Govier’s injuries were reasonably foreseeable in the circumstances. The appeal seeks to clarify the application of the rule in Paige to workplace investigations in which the employer has control over the investigative process, as distinct from the facts in Paige where the issue turned on a disciplinary regime governed by statute.

The High Court is expected to hear the appeal early this year.

Workplace Investigation Employers duty of care – Lessons for employers

  • When conducting a workplace investigation it is important that employers and HR professionals act in professional and time appropriate manner.
  • Whether the High Court finds that employers owe a duty of care to employees during a workplace investigation or not it is wise for employers and HR professionals to take am approach that minimises the dangers of harm.

Workplace Investigation Employers duty of care – How can we help

AWPTI can provide workplace investigation training programs to help HR professionals to master the skills associated with the conduct of a workplace investigation – more details

Should you wish to conduct the investigation internally we provide and investigation review service or Investigation Peer Mentoring – More details

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

Some details of this article was originally published at Mondaq.com

Fair Work Act Adverse Action Claims – Many businesses have had to deal with the cost, disruption and trouble caused by a claim that the business has allegedly taken adverse action against an employee because the employee exercised a workplace right or had a protected attribute.

Experience tells us that often the claim is made before or during a disciplinary or performance management process. Invariably, the claim is made because the employee is unable or unwilling to accept or acknowledge their own failings and contribution to their current circumstances. Rather than accept the situation, or respond constructively, the employee alleges the action must have been taken because of some unlawful motives. The employment relationship becomes strained.

This was the case in Celand v Skycity Adelaide Pty Ltd [2016] FCCA 399, where the Court found it was the employee’s “perception” and her own increased dissatisfaction with events that led her to believe she had been wronged. Ms Celand was not a dishonest person but “determined to leave her employment, on the best possible terms she could secure“. This led to Ms Celand resigning, alleging ‘constructive dismissal’ and seeking compensation.

Skycity, like many employers, successfully defended Ms Celand’s general protections claim under Part 3-1 of the Fair Work Act 2009. After a five day hearing, Skycity secured an order that Ms Celand pay its legal costs fixed in an amount of $30,711.00 (a fraction of Skycity’s actual legal costs).

What is striking about Ms Celand’s case is not that she lost. Statistics show that many employees do not succeed in their adverse action claims.

The case is interesting for the recent appeal decision of the Full Federal Court in Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 (21 December 2017). The decision illustrates that the general protection provisions in the FW Act are broken, riddled by critical defects. The provisions need urgent amendments to restore balance for all parties.

Fair Work Act Adverse Action Claims – General protection provisions – in summary

Under the Fair Work Act (FWA), an employee has certain workplace rights, including the right to make a complaint in relation to their employment. Also, the FWA protects certain attributes of employees, like sex, race, disability, sexuality etc.

It is unlawful for an employer to take adverse action (including dismissal or other detrimental action) against an employee because they exercise a workplace right or have a protected attribute.

The reverse onus feature

It has been a long standing feature of the general protection provisions that the employer must prove it did not take adverse action for unlawful reasons. Such a provision is fair given it is the employer that knows the reason or reasons for its decision.

Often the employer tells the employee why it acted in a particular way. The reason is often consistent with the objective facts. The employee however refuses to accept the decision (and their own failings and contribution to their current circumstances) and pursues their claim with litigation.

Therein lies the problem. The system operates in a manner that does not encourage or require objectivity by applicant employees. Litigation can also be used to harass an employer into setting the claim, even if the claim has no merit.

“You must have acted unlawfully”

As alluded to above, a problem arises due to the fact that the employee, even when told the lawful reason for the action taken, can maintain the allegation that the action was taken for an unlawful reason.

The legal debate has been whether the employee needs to demonstrate some objective facts for the assertion of unlawful action or a mere allegation is enough to make the claim (and require the employer to discharge the reverse onus).

Bromberg J of the Full Court observed that the reverse onus provision “is only engaged “if … it is alleged” that the action was taken for “a particular reason or with a particular intent“”. An employee need not establish a connection between the alleged adverse action and a prohibited reason.

The effect of the FW Act provisions is that the decision-maker, often a very senior employee, will need to give evidence in the proceedings. The mere allegation of being motivated by an unlawful reason is enough for an employee to maintain their claim, even if the real reasons have been revealed and the circumstances point to other reasons for the action.

Costs are rare

There is nothing like the risk of a cost order to focus the mind and require some objectivity from an applicant.

Unfortunately, s 570 of the FW Act only allows costs in limited defined circumstances such as:

  • if proceedings are commenced vexatiously or without reasonable cause; or
  • if a party’s unreasonable act or omissions causes another party to incur costs.

In Ms Celand’s case, Skycity offered her $7,000 to settle the claim – a “walk away” offer, the Full Court said. The Court at first instance said the rejection of this offer was unreasonable.

Justices Bromberg and Logan of the Full Court disagreed with the costs order. Skycity conceded the proceedings were not instituted without reasonable cause. There was therefore a tension in then saying the rejection of a walk away offer was an unreasonable act. At the time of the offer, Ms Celand had (at some expense) prepared her case.

Bromberg J observed that under s 570 of the FW Act “a high standard of unreasonableness is to be adopted“, having regard to the need to promote access to justice.

As most general protection cases turn on the acceptance of the decision-maker’s evidence, rarely will the occasion to award costs arise.

As can be seen, the cost provisions are hollow. The employee has little to lose and everything to gain. The system is flawed as it encourages and protects unmeritorious claims.

Objectivity is needed

All seems jaundiced to a jaundiced eyed“, Justice Logan commented on the wisdom of this adage. Therein lies a problem for employers when perspective is lost by a disgruntled employee.

The system gives too much preference to promoting access to the system without regard for the cost, disruption and trouble for employers. The system does not encourage nor require employees to consider their position with some objectivity.

Sure, the Fair Work Commission can (after conciliation) issue a certificate saying the claim has no reasonable prospects of success; but that rarely occurs. And even then, the employee can still pursue their claim to court without fear.

It seems entirely sensible in a balanced system to require an applicant employee to:

  • prove some objective facts of causation to warrant the making of the allegation of unlawful conduct (particularly when the employer exposes its reasons); and
  • be exposed to the risk of costs if they refuse a settlement offer that exceeds the likely merit of their claim.

The mere making of a complaint or possessing a protected attribute should not itself promote or sustain the making and maintaining of a claim. Having no risk in pursuing a claim also exposes the employee to their own cost and the detriment in not ‘moving on’. It also has the potential to burden the judicial system.

Originally published at Mondaq.com  by James Mattson
http://www.mondaq.com/article.asp?articleid=670708&email_access=on&chk=1924492&q=1253784

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

Workplace Investigator

What message are you sending when you engage an external workplace investigator?

A very common comment that I hear from new clients is

“This is the first time we have used an external investigator”

Reasons for engaging an external investigator to deal with matters such as bullying, sexual harassment and other incidents of misconduct include, not having the available staff, not having the skill or expertise or not having the time, but often when I ask new clients they respond by saying

“We want to send a message that we are taking this complaint seriously”

Why is this so?

Obviously engaging an external workplace investigator to deal with matters such as bullying, sexual harassment and other incidents of misconduct involves an expense so what is the ROI?

1.     You get an unbiased investigation. External investigators don’t know and the parties, they don’t have previous relationship and have no allegiances to complainants or respondents

2.     External workplace investigators have the skill and expertise (assuming you engage a good one) to conduct the investigation in a timely manner.

3.     Many external investigators are former police and are not easily intimidated by overbearing or aggressive respondents.

The message to respondents

This is serious!

On many occasions I have been told by clients, managers and HR managers that the respondent will be hard to deal with and aggressive with comments such as

“He’s an alpha male or he likes to win arguments by being the loudest and most belligerent”

I am yet to interview a respondent so described who isn’t a timid as a mouse.

It is human nature to be wary of the unknown, to a respondent the external investigator is the unknown, they will often do all they can to win the investigator over to see things their way.

A professional investigator will be objective and base their findings on the evidence only and will not by swayed or form opinions or preferences based on personality.

The message to complainants

The organisation is taking the complaint seriously, they are spending the money to bring in a professional.

Part of having an effective strategist to combat working bullying, sexual harassment and other forms of misconduct is having a trusted complaint reporting and investigation process.

Another common comment that I have heard, this time from complainants is;

“I glad you’re here and that something is being done.”

Not all complaints are substantiated however engaging external investigator ensures that you get a final report based on the evidence. A number of clients have reported to me that complainants more readily accepted an outcome that does not support their complaint when the matter is externally investigated.

Australian Workplace Training & Investigation (AWPTI) can provide expert, experienced and professional investigation services to assist your organisation when dealing with matters of bullying, sexual harassment or other forms of misconduct. Contact us at enquiries@awpti.com.au or via our web site that has full details of our services at www.awpti.com.au

It is important when engaging an external investigator to get the right one, this article may help – http://awpti.com.au/choosing-a-workplace-investigator/

We also provide a range of workplace training services both internally or via pubic courses – http://awpti.com.au/training/

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/