Workplace Investigators behaving badly   – The presence of bias be it actual or perceived during an investigation can derail the entire investigation and undermine any findings and recommendations.

As I mentioned in the previous article, Workplace Investigation Biased process, complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews.

This article will examine investigation interviews and the role of the investigator and avoiding behaving badly.

Workplace Investigators behaving badly – Workplace investigations are defined as “an unbiased gathering of evidence” and to ensure that that a complaint of bias is not raised or substantiated it is important to follow these rules when conducting interviews;

  1. Approach each interview with an open mind
  2. Do no make any judgements on the parties before you meet them (regardless of what you have been told)
  3. Always treat each interviewee with respect
  4. Listen to what the  interviewee has to say
  5. Concentrate on the interviewee’s answers not your next question
  6. Do not get into arguments with interviewees during an interview
  7. Never attempt to intimate the interviewee or behave in an aggressive, hostile or arrogant manner
  8. Ensure that your questions are reasonable and admissible should the matter proceed to a court or tribunal
  9. Do not make any judgements on the character of any of the parties
  10. Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered, Remember at times complainants provide half the story, there are always two sides.
  11. Gather all the evidence, not just the evidence that supports the complaint
  12. Do not form a theory and then tailor your interview to seek evidence to support your theory only
  13. Do not attempt to force a confession by intimidation or trickery
  14. Do not make early determinations
  15. If you feel that you have any sort of conflict of interest declare it, manage it or withdraw from the interview

It is important to remember that a workplace interview is NOT an interrogation. If you as an investigator do not adhere to points 1 – 15 above it will affect the credibility and validity of the interview and reflect poorly on you as an interviewer and investigator. Generally breaching any of point 1 – 15 shows the inexperience of the investigator who lacks the confidence or competency to understand the investigative interview process.

It is equally important to remember that the purpose of a workplace investigative interview is NOT to get a confession. Most if not all complainants believe that they are right, that their compliant is valid even if it seems far fetched and unlikely to you. Many respondent believe that they have done nothing wrong.

What do you do if you think that a complainant, witness or respondent is not telling you the truth.

  1. listen
  2. Record
  3. Get clarification
  4. Obtain corroboration (if possible)

You don’t have to challenge the interviewee, remember you do not have to get a confession, the weighting up of the evidence is done during the final report. Interviewing is a skill that requires training and practice, more detail can be found in the AWPTI Interview Manual – http://awpti.com.au/investigation-interview-manual/

Here are are a couple of scenarios to consider.

Scenario 1 – For some reason you have interviewed other parties (witnesses) before the complainant or you have received information prior to the interview.  The witness evidence or other information contradicts that of the complainant. The complainant has already submitted a worker’s compensation claim that relates to their complaint of bullying and harassment. You decide to challenge the complainant making statements such as “I have been told a different story” or maybe “three witnesses have told me that it didn’t happen this way, so why should I believe you” or maybe “your story is different from the witnesses, why don’t you tell me the truth” or maybe “I don’t think it happened this way, would you like to think about that?”

What is wrong with this?

  1. The questioning appears to be hostile and aggressive and will ruin any rapport developed with the interviewee
  2. The questions may be expressing an opinion – your opinion is not relevant at this stage
  3. This is not the behaviour of a professional investigator

What is likely to happen next?

  1. The complainant may complain that you are biased, that you had made up your mind and did not listen to them
  2. The complainant might now state that your tactics during the interview was exacerbated the stress caused by the bullying
  3. Your findings and recommendations my be undermined by your behaviour in the interview
  4. The matter may have to be re-investigated at an additional cost to the organisation.

Scenario 2 – On this occasion you are interviewing the respondent.  The complainant and witness evidence contradicts that of the respondent. You decide to challenge the respondent making statements such as “I have been told a different story” or maybe “three witnesses have told me that it didn’t happen this way, so why should I believe you” or maybe “your story is different from the witnesses, why don’t you tell me the truth” or maybe “I don’t think it happened this way, would you like to think about that?”

What is wrong with this?

  1. The questioning appears to be hostile and aggressive and will ruin any rapport developed with the interviewee
  2. The questions may be expressing an opinion – your opinion is not relevant at this stage
  3. The questions appear to suggest that you already favour the evidence provide by other parties, this may lead to a finding of a lack of procedural fairness in that you did not take into account what the respondent was saying (The right to be heard)
  4. Once again this is not the behaviour of a professional investigator

What is likely to happen next?

  1. The respondent may complain that you are biased, that you had made up your mind and did not listen to them
  2. The respondent may now state that your tactics during the interview have denied them procedural fairness
  3. The respondent may now claim that the interview was bullying as it was not conducted in a reasonable manner
  4. Your findings and recommendations my be undermined by your behaviour in the interview
  5. The finding and final decision may be criticised by a tribunal or court and could result in a successful unfair dismissal application by the respondent if they are sacked as a result of your investigation.
  6. The matter may have to be re-investigated at an additional cost to the organisation.
  7. The respondent may now submit worker’s compensation claim in that the interview was bullying as it was not conducted in a reasonable manner, another headache for the organisation

Here are some suggestions for  employers:

  1. If you don’t know how to conduct a workplace investigation – leave it alone and call in an expert.
  2. If you don’t know how to conduct a workplace investigation interview – leave it alone and call in an expert
  3. If you want to save money and DIY, have your people trained.

A full description of the types of questions that are and are not appropriate in a workplace investigation interview can be found in the AWPTI Interview Manual – http://awpti.com.au/investigation-interview-manual/

Workplace Investigators behaving badly – You must be careful when choosing the investigator, if there is no one in your organisation who is suitably qualified, experienced, confident and has the time to conduct the investigation, you may wish to consider appointing an external investigator who has no prior knowledge of the parties and is able to conduct a completely impartial and unbiased investigation. AWPTI can assist – http://awpti.com.au/investigations/

AWPTI can also provide a range of investigation training programs and products that can assist mangers and HR professional to understand the complex task of investigating workplace complaints.

http://awpti.com.au/hr-products/

There are other matters to consider when you are appointing an external workplace investigator are addressed in these articles –
Workplace Investigator who do I choose and why?
What to look for in a workplace investigator
What the Fair Work Commission said about outsourcing investigations
Workplace Complaint Investigations – Do it yourself or call in an expert?

Workplace Investigation biased process – 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 Investigation biased process – The presence of bias be it actual or perceived during an investigation can derail the investigation and undermine any findings and recommendations.

Complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews.

This article will examine the process, part two will examine bias during interviews.

Workplace investigations are defined as “an unbiased gathering of evidence” and to ensure that that a complaint of bias is not raised or substantiated it is important to follow these rules;

  1. Approach the investigation with an open mind.
  2. Do no make any judgements on the parties
  3. Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered.
  4. Gather all the evidence, not just the evidence that supports the complaint
  5. Do not form a theory and then seek evidence to support your theory only
  6. Do not make early determinations
  7. If you feel that you have any sort of conflict of interest declare it, manage it or withdraw from the investigation.

Workplace Investigation biased process actual or perceived is often as a result of an inexperienced investigator who lacks the confidence or competency to understand and carry out the investigative process.

It is important that when all the evidence is gathered to;

  1. Review and analyse all the evidence carefully, this requires a high level of skill and experience, an understanding of evidence and evidence law and the standard of proof in civil matter (on the balance of probabilities)
  2. Make a decision in regard to what weight you place on each persons evidence without taking into account how you feel about the person or the complaint.
  3. Never allow any personal preferences good or bad about anything relevant to the investigation to cloud your judgement.

Once again bias at this point is also usually as a result of  an inexperienced investigator who lacks the confidence or competency to understand the investigative process.

A conflict of interest that could lead to a perception of bias may occur in a number of circumstance including but not limited to;

  1. Your position in the organisation
  2. Your knowledge, personal views about or relationships with any of the parties
  3. Any history you may have with any of the parties
  4. Your personal views on the behaviour complained about
  5. Pressure placed upon you by the parties involved in the investigation or other such as senior managers
  6. Expectations in regard to outcomes

A complaint of bias as a result of a conflicted of interest (actual, potential or perceived) may be hard to avoid if the matter is conducted internally. This is very common problem faced by HR professionals and managers after all you are part of the organisation, you know the people involved, you may have had previous adverse dealings with the person subject of the complaint or grievance.

Respondent may raise a complaint of bias or conflict of interest if the complaints are substantiated and disciplinary action is taken. Complainants may also raise the issue of bias or a conflict or interest if the outcome is not what they expected or desired

In the case of Fitzpatrick v Bunnings [2014] FWC 1869, the Fair Work Commission found that the employee’s dismissal was unfair, in part because the Company’s choice of investigator created the perception of bias, if not actual bias.

You must be careful when choosing the investigator, if there is no one in your organisation who is suitably qualified, experienced, confident and has the time to conduct the investigation, you may wish to consider appointing an external investigator who has no prior knowledge of the parties and is able to conduct a completely impartial and unbiased investigation. AWPTI can assist – http://awpti.com.au/investigations/

There are other matters to consider when you are appointing an external workplace investigator are addressed in these articles –
Workplace Investigator who do I choose and why?
What to look for in a workplace investigator
What the Fair Work Commission said about outsourcing investigations
Workplace Complaint Investigations – Do it yourself or call in an expert?

Workplace Investigation biased process – 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/

 

 

Demotion Unfair dismissal decisions – While a demotion or a reduction in pay in itself may not constitute the manner of implementation or communication can. Always remember procedural fairness.

These two cases illustrate the issues. If you are unsure about procedural fairness you can obtain a copy of our Procedural Fair Manual here – http://awpti.com.au/procedural-fairness-manual/

In the first case of Carter v MSS Security P/L the FWC found that demotion was allowable under the contract of employment and therefore the resignation was not considered to be constructive dismissal.  In the second case of Piggott v Wellpark Holdings P/L t/a ERGT Australia a lack of procedural fairness and no valid reason made the dismissal unfair.

Carter v MSS Security P/L

TERMINATION OF EMPLOYMENT – demotionss.386, 394 Fair Work Act 2009application for unfair dismissal remedy

On 11 May 2016 Mr Scott Carter (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 for a remedy for unfair dismissal against his former employer MSS Security Pty Ltd (the Respondent). The Applicant commenced employment with the Respondent on 2 February 1995.

The Applicant received an email from the Respondent on 2 May 2016 demoting him from the position of “Site Manager” at the Commonwealth Bank Branch at Olympic Park in Sydney. The demotion followed a complaint from another employee. The Applicant was accused of failure to follow company policies, failure to communicate and inability to fulfil the requirements of site manager.

The Applicant refused to accept the demotion on 4 May by letter. He claimed that the dismissal took effect on 2 May as a constructive dismissal.  The Applicant stated that he had also been “acting up” in the position of Acting Regional Manager on a trial basis.

The alleged dismissal arises from an incident in March 2016 involving an incident between two guards under the Applicant’s supervision.

The respondent submitted demotion did not result in dismissal because employment contract permitted demotion and submitted that Mr Carter’s resignation voluntary.

The Commission considered applicant claiming forced resignation must show they had no real choice but resignation [Mohazab] that  demotion of an employee, where that demotion is provided for in contract of employment or industrial instrument, cannot constitute, by itself, a dismissal [Moyle], [Singh] and while applicant’s demotion involved significant reduction in remuneration or duties for purposes of s.386(2)(c)(i) of Fair Work Act, this section is an exception to general definition of dismissal in s.386(1) and will not apply if demotion is provided for in employment contract.

The Commission found that there was no intention to dismiss by respondent and that the respondent did not end employment relationship as it demoted applicant pursuant to employment contract and that the contract provided there was demotion in relation to performance .

The commission held that there was no repudiation of contract by respondent and found that the applicant resigned.

The Commission was satisfied allegations against applicant substantiated and respondent’s investigation process was satisfactory and that the  applicant not forced to resign, his resignation did not satisfy requirements of s.386(1)(b), the applicant not dismissed, the application was dismissed.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc82.htm

Piggott v Wellpark Holdings P/L t/a ERGT Australia

TERMINATION OF EMPLOYMENT – demotions.394 Fair Work Act 2009 – applicant dismissed for refusing to accept reduction in pay

The respondent suffered unforeseen and significant reduction in revenue and cash flow in 2015 that forced expenditure cuts. The respondent was reluctant to reduce labour headcount and engaged with staff by giving a presentation and asked them to take a temporary 10% pay cut, this was accepted by the vast majority.

The Commission held this was a legitimate course of action. At the time the applicant on annual leave when presentation given. He returned to work and was advised he had until close of business the next day to agree to the reduction in pay or be terminated.

The Commission held applicant should have been treated the same way the other staff were treated and found applicant refusing to accept reduction in pay was not a valid reason for termination as case lacked procedural fairness.

The commission found that the dismissal was harsh, unjust or unreasonable, that reinstatement not appropriate in the circumstances – ordered compensation of $3,259.70, taxed according to law.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc3188.htm

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/

 

Why is Reasonable Management Action training important?

Complaints against managers by employees are often as a result of the employee claiming that they were bullied and/or harassed by their manager.

In general, such complaints are either as a result of;

  1. Actual bullying and harassment
  2. Management action involving performance management or feedback
  3. Other forms of management action or supervision.

Complaints against managers for sexual harassment, discrimination or other forms of misconduct are generally more specifically related to an incident or series of incidents or behaviours.

To assist managers and HR professionals we have created the Reasonable Management Action manual that is concise and easy to absorb as we realise that managers and HR professional do not have all day to read long winded publications.

The manual is not a theoretical publication but rather a guide to be used when dealing with employees and conducting of performance management. For more details or to order – http://awpti.com.au/reasonable-management-action-manual/

As the understanding of Reasonable Management Action is such a critical area for managers and HR professionals, AWPTI offers options in addition to this manual.

Face to Face Training with AWPTI Principal Phil O’Brien – The Management Essentials program is designed to assist managers to deal with employment related issues. It comprises of three sections;

  1. Reasonable Management Action,
  2. Performance Management,
  3. Dealing with Misconduct and Employee Complaint Handling for Managers

This training is recommended for all managers/team leaders/supervisors to help minimise costly and time-consuming complaints against managers – more details http://awpti.com.au/management-training/ – price on application.

Phil has delivered this training session to a large number of corporate, State and Federal government clients.

The benefit of the face to face training is that participants are expertly guided through the learning materials and also get to hear the war stories and ask questions of a highly experienced workplace investigator.

DIY training

It may be the case that you wish to deliver the training yourself but don’t want or can’t find a suitable online package.

We have clients who are based all over Australia and it is more economical for them to purchase the Management Essential Training package and deliver it themselves.

The package includes

  • A comprehensive participant workbook (over 125 pages)
  • A companion trainer workbook with additional notes, including notes on all the case studies
  • A PowerPoint presentation covering the material in the workbook
  • Regular updates to the workbook, as we update cases in Courts and tribunals as they happen

Details of the package and how to order are here – http://awpti.com.au/management-training/

For more details on workplace misconduct including bullying harassment, sexual harassment and discrimination please refer to the AWPTI Workplace Misconduct Manual – http://awpti.com.au/workplace-misconduct-manual/

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 Investigation Document Toolbox 

As an employer or business owner if you are confronted by workplace misconduct you must decide do it yourself or call in an expert. There are a number of reasons for making a decision to do it yourself but often the cost is a major factor, this is where the AWPTI Workplace Investigation document toolbox can assist you at the fraction of the cost of an external investigator.

Using easy-to-follow plain English advice, our DIY investigation toolbox will enable you to conduct a stress-free workplace investigation.  Helpful documents such as our uniquely tailored interview scripts take the hard work out of interviewing complainants, witnesses and the alleged wrongdoers.

The Australian Workplace Training and Investigation toolbox contains full documentation and far more than is offered anywhere else including a full set of workplace instructions, an interview manual, letters, interview scripts and sample investigation reports.

The Workplace Document Investigation toolbox will:

  • Guide you through the entire investigation – from the outset to conclusion
  • Assist you to prepare an investigation plan and draft interview plans
  • Guide you through the process of interviewing with the interview manual and scripts
  • Reduce the fear of being sued by aggrieved employees as a result of a poorly conducted investigation
  • Explain procedural fairness, the rules of evidence, conflict of interest and bias.
  • Tell you the “what”, the “why” and the “how” of workplace investigations

The comprehensive workplace investigation document toolbox contains 35 documents and an Investigation Interview Manual:

  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. Template Risk Assessment form (Word doc)
  6. Template investigation plans x 2 (Word doc)
  7. Template letter to the complainant (Word doc)
  8. Template letter to the witnesses (Word doc)
  9. Template initial letter to the respondent (Word doc)
  10. Template letter of allegation to the respondent (Word doc)
  11. Template complainant interview guide/script (Word doc)
  12. Template witness interview guide/script (Word doc)
  13. Template respondent interview guide/script (Word doc)
  14. Sample witness statement (Word doc)
  15. Sample interim report (Word doc)
  16. Sample final investigation report (Word doc)

For more details and to order the investigation Toolbox check out – http://awpti.com.au/investigation-toolbox/

For your security we only use PayPal for purchases, no personal information is stored on this site. You do not need a PayPal account, you can pay via a credit or debit card using PayPal.

We have a number of other investigation products and training programs coming online soon.

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/

 

Workplace Investigation Procedural Fairness fail.

Workplace Investigation Procedural Fairness fail – employee awarded $40,977.30 in compensation

Employee Dismissal Unfair Because employee was not afforded Procedural Fairness – Michael Ramsey applied for an unfair dismissal remedy (Link to case Ramsey v Trustee for the Roman Catholic Church for the Diocese of Parramatta [2017] FWC 223) following his summary dismissal as an IT Project Manager in CatholicCare Social Services. Mr Ramsey was terminated following an incident where it was alleged that he physically shoved Ms Rashada, the Manager of People & Culture.

Before this incident, other issues had arisen which involved Mr Ramsey, including the disconnection of the NBN service (as a result of administrative errors on documents overseen by Mr Ramsey) and a significant virus attack upon the CatholicCare networks. In addition Mr Ramsey had also taken a period off work after aggravating a neck/back injury that he had sustained during the course of employment in 2013.

At 1pm on 27 April 2016, Mr Ramsey attended the Chancery Office for his scheduled performance review meeting. Ms Rashada, the Manager of People & Culture directed Mr Ramsey to sit down and told him that she would return later. At 4:45pm Mr Ramsey was informed that Ms Rashada was unable to attend the meeting and the meeting was rescheduled. On 29 April 2016, Mr Ramsey attended the Chancery Office for the rescheduled meeting but was told 4 hours later that it was too late for the meeting to be held and it would have to be rescheduled again.

On 2 May 2016, the performance review meeting finally proceeded with Mr Ramsey, Mr Netana (IT Manager), Ms Rashada and Mr Makdessi (HR Manager) present. At this meeting three issues were raised –
1. Mr Ramsey’s neck injury,
2. the administrative error that resulted in the disconnection of the NBN Service
3. the virus attack on the CatholicCare networks.

The outcome of the meeting was that Mr Ramsey was to receive his first warning letter and was required to attend for work at the Chancery Office at Parramatta in the future.

On 6 May 2016, Mr Ramsey received two warning letters. The first warning letter referred to the 2 May meeting. The letter stated that his performance as the CCSS IT Manager had been unsatisfactory, and that immediate improvement was required. The letter stated that Mr Ramsey’s performance would be supported through a formal performance management process.

The second letter referred to Mr Ramsey’s delay in attending the Chancery Office on 4 May 2016. Mr Ramsey had been delayed on this day as he had been requested to assist with a matter in another office. The second letter stated, “failure to improve your attendance to the required standard may result in further disciplinary action or termination of your employment.”

On 6 May 2016, Mr Ramsey was also asked by Mr Netana to sign a performance improvement plan. When Mr Ramsey declined to sign it, Mr Netana told him to take it home and think about it over the weekend.

On 9 May 2016, Mr Ramsey attended for work at the Chancery Office at Parramatta. At about 10.30am a conversation occurred between Mr Netana, Ms Rashada and Mr Ramsey concerning the performance improvement plan. Mr Ramsey persisted in his refusal to sign or engage with the contents of the performance improvement plan. Mr Netana left the room to attend to another matter. Ms Rashada claimed that during the time Mr Netana was absent, the discussion between Mr Ramsey and herself became heated, resulting in Mr Ramsey physically shoving her.

In considering whether Mr Ramsey physically shoved Ms Rashada, Vice President Hatcher noted that he could not be satisfied with the evidence of Ms Rashada, as he did not consider her to be a credible witness. Accordingly, VP Hatcher held that he could not make a positive finding that Mr Ramsey pushed Ms Rashada as a number of possibilities were open in the circumstances.

As VP Hatcher was not satisfied that Mr Ramsey pushed Ms Rashada, he concluded that there was no valid reason for dismissing Mr Ramsey. Further, VP Hatcher noted that Mr Ramsey was denied procedural fairness and was dismissed by a person lacking both impartiality and authority.

The FWC determined that the dismissal of Mr Ramsey was harsh, unjust and unreasonable. The FWC ordered the Trustee for the Roman Catholic Church for the Diocese of Parramatta to pay Mr Ramsey $40,977.30 in compensation.

Lesson for employers

Decisions in regard disciplinary actions taken as a result of misconduct, poor performance or the outcome of an investigation should be made by an impartial and unbiased party.

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/

Workplace investigation substantive fairness

Workplace investigation substantive fairness – When considering whether a dismissal is unfair, the Fair Work Commission will have regard to two types of fairness – procedural fairness and substantive fairness.

Procedural fairness is about natural justice and the procedure followed by an employer when terminating an employee’s employment.

The second limb, substantive fairness, is focused on the objective fairness of the penalty applied in disciplinary action.

Substantive Fairness and the Fair Work Act

Under the Fair Work Act 2009, a dismissal will be unfair if it is “harsh, unjust or unreasonable”.

In deciding whether this is the case, the FWC must take into account a range of factors including whether there was a valid reason for the dismissal.  This evaluation of a valid reason for dismissal is where substantive fairness enters the unfair dismissal equation.

What is a valid reason?

A valid reason is a reason that justifies terminating an employee’s employment.

The case law says that valid reason should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced” (Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371). Furthermore, a valid reason “must be defensible or justifiable on an objective analysis of the relevant facts” (Rode v Burwood Mitubishi Dec 451/99 M Print R4471 AIRC).

In essence, a valid reason can’t be manufactured by an employer, it must be based on objectively ascertainable facts and should be proportionate to the conduct or capacity issue in question.

Hanson v Precepts Services Pty Ltd [2017] FWC 1488 (Precepts Services Decision)

In a recent decision of the FWC, an employee was awarded more than $27,000 in compensation when his employment was terminated for reasons that were over inflated by his employer. The employee was accused of swearing at and intimidating a co-worker to such a degree that he was summarily dismissed.

Evidence before the FWC established that the employer condoned the use of “robust language” in the workplace and the managing director in particular was guilty of using such language and having frustrated outbursts. The employer had not taken action against other employees for their colourful language in the past and consequently, the employee had been judged by a different standard to others.

The FWC held that there was not a valid reason for the dismissal because the employer’s reasons were not justifiable. It had overstated the gravity of the conduct, especially with regards to the workplace culture, and therefore the conduct was not objectively serious enough to warrant summary dismissal.

This case demonstrates that consistency in decision making and a regularly monitored culture in a workplace can impact on the existence of a valid reason.Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1488.htm

Applying objectivity

As mentioned above, affording an employee substantive fairness involves a degree of objective analysis. The reasons for dismissing an employee must be able to be substantiated on objective facts. This can sometimes be a challenge when there is a high degree of tension, emotion and pressure when dismissal is being contemplated.

Before making any final decisions about disciplinary action, employers should take a step back and think critically about the reasons they considering taking that action. Did the conduct alleged actually happen? Was the employee’s behaviour serious enough to warrant dismissal? Does the employee actually lack the capacity to perform their role?

Dawson v Qantas Airways Limited [2017] FWCFB1712 (Qantas Decision)

In this case, the employment of a long serving flight attendant was terminated because he stole miniature bottles of gin from his employer’s stock and lied about how the alcohol came into his possession.

In determining whether there was a valid reason for the employee’s dismissal the Full Bench of the FWC commented that it was required to consider the entire factual matrix,

“The Commission must determine on the evidence before it whether the Applicant did in fact remove the alcohol from the aircraft and whether he subsequently misled and deceived the Respondent as to how and why the alcohol came into his possession. Only if this can be shown on the evidence can the termination be considered valid.”

Ultimately, the Full Bench found that the evidence established that the employee had stolen the alcohol then lied about it and there was, therefore, a valid reason for the termination of his employment that was objectively justifiable.

Applying objectivity is about understanding the reasons for dismissing an employee without emotions or strong opinions getting in the way.

In the Qantas Decision, the reasons were the employee’s theft and dishonesty, which were able to be substantiated by evidence gathered by the employer. The reasons were not capricious, fanciful, spiteful or prejudiced because they were not conflated or manufactured in anyway.

Contrast this to the Precept Services Decision where the reasons for dismissing the employee were overstated and not objectively justifiable, resulting in a finding that the punishment did not fit the crime.
Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb41.htm

Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 4218 (Lion Dairy Decision)

In this case, the employee’s employment was terminated because he could no longer perform the inherent requirements of his role.

The employee was involved in a skydiving accident and sustained some serious injuries. When the employee was ready to return to work, he saw two doctors who gave differing opinions about his fitness to return to his role. The employer preferred the view of the doctor whose opinion was that the employee would not be able to perform all the duties that he had before his injuries. On that basis, his employment was terminated and he later made an unfair dismissal application to the FWC.

The FWC Full Bench held that there was a valid reason for employee’s dismissal in that the he could not perform the requirements of his role.

The Full Bench said that employers are entitled to rely on expert medical evidence available to them and that, in this case, the employer was within its rights to prefer the medical evidence of one doctor over another.

The Full Bench commented that a reason based on medical evidence will usually be one that is sound, defensible and well-founded, and thus a valid reason for the purposes of the FW Act.

This case demonstrates that the nature of the material relied upon by an employer can be a significant factor in assessing whether a valid reason exists and whether an employee has been afforded substantive fairness. Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4218.htm

Lessons for employers

Substantive fairness should be applied by employers when making any decision about a disciplinary penalty. Those making the decision, including whether to terminate employment, should consider whether there are objectively ascertainable facts to justify the penalty and whether the “punishment fits the crime”.

Originally published by Shane Koelmeyer  – Director at Workplace Law

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/

Business protection

Business protection – put out the fire with the S.A.F.E method

When is comes to Business protection workplace complaints about misconduct including bullying, harassment, sexual harassment, discrimination, theft or fraud to name a few can be highly damaging to your business, your leaders, employees and your brand.

When these complaints occur most organisations go into a re-active mode often not knowing what to do. This means placing these complex and potentially damaging issues in the hands of someone they just found on Google.

Workplace complaints can end up in courts, tribunals, the AHRC or the FWC and can result in great expense including judgments against you, compensation, legal fees and of course damage to your brand.

You cannot stop workplace complaints, however you can use the S.A.F.E method to protect your business pro-actively and re-actively, here’s how.

Step 1
S
urvey your business and identify the areas that need development;

    • Do you have the policies in place
    • Are your staff trained
    • Do you have Investigation or dispute resolution options in place including having experienced people in place.

After completing your survey take action to fill in the gaps. If you don’t have experienced facilitators and investigators on staff it is highly recommended that you create relationships with people who you can call and who you trust and who will be responsive to your needs in a timely manner.

Step 2
A
ccess your alternatives internal or external for the;

    • Development of policies
    • Development and facilitation of training
    • Conduct of investigations or dispute resolution

Remember, if you are dealing with matter internally, do you have experienced and qualified people on staff who have the time to do the job?

Step 3
Formulate your strategy for dealing with complaints

    • Review complaints with the complaint analysis chart (This can be provided to you)
    • Decide – Internal or external
    • Allocate the resources

Step 4
E
xecute your strategy

Having a strategy in place can save a lot of time, money and stress. Having relationships in place ensures that you can relax and know that your issues are being handled by experienced and qualified professionals.

Or you could just Google it and hope for the best.

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

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/

 

Workplace Investigation

Workplace Investigation – what can you do with uncooperative parties during an investigation.

An issue that may be confronted during a workplace investigation is uncooperative parties, complainants, witnesses and the person subject of the complaint (generally referred to as the respondent).

Workplace Investigation – uncooperative respondents

It is important to be careful not to attribute blame or guilt when a person subject of a complaints or misconduct workplace investigation is uncooperative, you must keep an open mind.

Two crucial components of procedural fairness are:
(a) The respondent has the right to know the nature of the complaint or allegations made against them
(b) The respondent has the right to be heard (the right to respondent to the complaint or allegations made against them)

At times adhering to procedural fairness might mean having to be patient.

Generally responses from the person subject of a complaints or a misconduct workplace investigation will come either in written form or the participation in an interview.

Respondents may;

  • Refuse to respond
  • Delay the response providing various reasons why they have not responded
  • Continually ‘roadblock’ the investigation by being unavailable to be interviewed, cancelling interview appointments or not showing up.

What can employers do?

  • Set reasonable deadlines, but be patient and allow some latitude.
  • Listen and take account of the reasons for the cancellation of interviews or delayed responses
  • Re-schedule interview appointments when needed.
  • Work with the respondent, allow them time to prepare.

If the ‘stalling’ is without good reason and continues;

  • Set a final deadline, again be reasonable, (don’t rush the process) but remember that other people may be affected by the investigation and courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.
  • Advise the respondent that if they fail to respond or attend an interview by the deadline, the investigation will continue and that findings may be made on the information that you currently have on hand.

If the respondent continues to be uncooperative proceed with the investigation.

DOCUMENT EVERYTHING

Workplace Investigation – uncooperative complaints

Although less common than uncooperative respondents I have encountered situations where the complainant is uncooperative, this has been in cases where a written complaint has been made and then the complainant refuses to provide further information and/or be involved in the investigation.

This situation presents a number of problem, please refer to this article that reviews what to do when an employee does not want an investigation into their complaint? http://awpti.com.au/employee-investigation/

In this case I recommend that you proceed with the information you have and advise the complainant that the investigation will continue and that findings may be made on the information that you currently have on hand.

This can cause some difficulties in providing the person subject of the complaint with full details of the complaint or allegation, each case is different, please contact me for assistance phil@awpti.com.au

DOCUMENT EVERYTHING

Workplace Investigation – uncooperative witnesses

Unless you have something in your policy or Code of Conduct that compels employees (which I suggest would be rare) there is little you can do with uncooperative witnesses other than to discuss the reasons why they do not wish to cooperative and reassure them in relation to their concerns if you can.

Bottom line is generally you really can’t compel witness to be part of a workplace investigation.

Support people

Support people themselves are usually not uncooperative however 2 issues can arise usually from the perspective of the respondent;

(1) I can’t get a support person
(2) My support person is not available at…..

It is recommended that you are flexible and have some patience and understand that the support person may also need reasonable notice, however is it not reasonable to unduly hold up the investigation, it may be the case that the party will have to get a different support person.

As I previously stated it is important to remember that courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner and the Fair Work Commission will only take into account unreasonable refusal to allow for a support person.

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

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/

 

 

Workplace Harassment Training Sydney NSW

Workplace Harassment Training Sydney NSW – AWPTI can assist you with training sessions that address Workplace Harassment and Sexual Harassment

Incident and complaints of Harassment and Sexual Harassment in the workplace are commonplace and it is recommended that employees respond in a timely and professional manner. Employers have a duty of care to provide a workplace that is free from Harassment and Sexual Harassment. Having effective and up to date training in place can assist you to satisfy your duty of care.

Harassment is when someone is made to feel humiliated, offended or intimidated because of their race, colour, national or ethnic origin, sex, disability, sexual preference or some other characteristic specified under anti-discrimination or human rights legislation.

Harassment can range from serious to a less serious nature. It may be a number of incidents or a single act.  Harassment can be conducted by one person or a group of people. It may be verbal or nonverbal and it may be subtle or openly hostile.

Harassment does not have to be directed towards a person to be considered harassment.  For example a racially hostile working environment where offensive jokes and taunts are part of the accepted culture is a form of harassment.  A person working in such an environment has the right to complain, even if the conduct in question was not specifically targeted at them.

Sexual harassment is any unwanted or unwelcome sexual behaviour which makes a person feel offended or humiliated. It has nothing to do with mutual attraction or consensual behaviour.

COURSE AIMS

The session aims to provide practical skills to help enable your staff and managers to recognise what is and what is not harassment and sexual harassment and to offer strategies to deal with harassment and sexual harassment in the workplace.

 LEARNING OUTCOMES

At the end of the workshop participants should be able to:

  • Understand and identify what is and what is not harassment and sexual harassment in the workplace
  • To gain an insight in to why people harass and sexually harass and what you can do about it
  • Provide examples of workplace harassment and sexual harassment.
  • Understand the legal ramifications of harassment and sexual harassment in the workplace

Workplace Harassment Training Sydney NSW

The course is divided in six parts;

Part One: What is workplace harassment and sexual harassment

Part Two: What should you do

Part Three: Behaviours in the workplace

Part Four: Power Emotion and Self Control

Part Five: Legal Responsibilities

The course can be run and a time and location to suit you and your employees, a method preferred by a number of our clients is to run it as a ‘Lunch & Learn’ session.

AWPTI can also assist you with training sessions that address Workplace bullying and discrimination. Check out our blog and other pages for more information about workplace bullying and how we can assist with bullying investigations –  http://awpti.com.au/investigations/

If you would like more details, please contact us – enquiries@awpti.com.au

AWPTI – Workplace training Sydney and through-out NSW  and national wide
Misconduct training, bullying training, harassment training & sexual harassment training

www.awpti.com.au