Workplace Investigations Sydney NSW

Workplace Investigations Sydney NSW – Workplace Investigations into complaints and grievances and other issues can be a difficult, time consuming and stressful for the parties concerned.

One of the most common difficulties encountered by HR departments, managers and business owners when conducting internal workplace investigations is that virtually everyone involved knows one another or are connected in some way in the business and at times will have competing agendas. Australian Workplace Training & Investigation can assist – www.awpti.com.au

When making a decision to conduct the investigation internally or to outsource it is wise for an employer to ask the following important questions:

  • Do we have someone with the necessary expertise and experience to conduct an investigation?
  • Do we have the time to undertake an investigation that could potentially take up to six weeks?

If the employer is going to conduct an internal investigation or inquiry does the person/s nominated have:

  • Solid experience conducting investigations?
  • Extensive experience conducting investigative interviews?
  • A full understanding of the rules of evidence?
  • An understanding of procedural fairness?
  • A comprehensive understanding of current legislation as it relates to workplace complaints such as misconduct, bullying, harassment, sexual harassment and discrimination?
  • Experience making finding and recommendations and writing reports that will withstand the scrutiny of an industrial commission, the Fair Work Commission or a court?

Other considerations;

  • Can we ensure;
    • Transparency
    • Independence
    • An absence of Bias
    • An absence of Conflicts of Interest
  • Will the parties involved object to having the matter investigated internally

It is smart business to let an expert handle the workplace investigations for you.

Australian Workplace Training & Investigation can provide investigation services to suit your individual needs and all services are tailored to work within your budget.

Outsourcing a workplace investigation service enables you to concentrate on your business and to allow experienced and qualified investigators handle what we refer to as the ‘dark side of HR’.

Typical area of investigations

  • Complaints and grievances,
  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Misconduct
  • Breach of policy or Code of Conduct
  • Inappropriate use of IT or other resources
  • Misuse of social media
  • Fraud or theft.

Investigation review

Where an internal investigation has been conducted we can provide support and review of:

  • Investigation process
  • Findings & recommendations
  • Final report
  • Procedural fairness

We can also assist in the provision of workplace training – http://awpti.com.au/training/

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

Workplace training national wide

www.awpti.com.au

Swearing in the workplace is it a sackable offence?

While it may be argued that swearing has become more acceptable in general use, swearing in the workplace may not be.

It is important to note that swearing at work may constitute bullying, harassment or discrimination depending on the circumstances.

What do employers need to consider when deciding if they should or are able to take disciplinary action regarding this are;

  • The culture of the workplace, it might be argued that swearing could be more common and or acceptable in a factory or a mine site than in a corporate office and therefore this can will affect the expectations of the employees.
  • The nature of the offence insofar as what was said and to who.
  • The level of offence taken by those subject to the swearing, was it directed at a person or persons or as a general vent.
  • Was it part of a pattern of behaviour
  • Is there a policy or section of a Code of Conduct that outlaws swearing in the workplace?
  • Your policies and your Code of Conduct are the rules, the law in your organisation, they must clearly set out the behavioural expectations for all employees. Do you have them in place?
  • Has swearing been allowed or not in the past, history is very important as a consistent attitude must be shown, one rule for all, all the time.
  • It is equally important that employees found breaching any rules against swearing at work are also treated with consistency.
  • Has there been training conducted outlining the behavioural expectations.
  • Is there a system of recorded warning for breaches?
  • The history of the alleged wrong doer is important, in this a one off, is the employee general well behaved and productive.
  • Does the punishment fit the crime?

The Fair Work Commission has in the past found that an employer was justified in dismissing a worker who swore at his supervisor on the basis that he had been previously warned in writing not to use inappropriate language at work.

But the Commission went on to say it would not have found in favour of the employer if there had been evidence other employees had acted in a similar manner with less or no disciplinary action.

In another case, the Commission found in favour of an employee who was sacked for sending an abusive text message to a colleague during protected industrial action and ordered reinstatement.

The Commission found that while there was a valid reason to terminate the employee, it was disproportionate insofar as it was inconsistent with the approach taken in other similar incidents. Evidence before the Commission suggested there was a culture of workplace swearing, and that previous instances had not been dealt with by dismissal.

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential investigations.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

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 0409 078 322 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.

 

Lorna Jane case.

The Lorna Jane case where an employee is suing her employer over bullying claims is currently before a court in Brisbane.

The company’s head of people and culture, Emily Bourke, addressed the media at lunchtime today saying:

As an employer of more than 2,000 people we take the claims being taken against the company very seriously,” 

“We have conducted a through internal investigation and vehemently deny Ms Robinson’s claims.”

“We have workplace policies and procedures in place that very clearly state the company’s position on workplace bullying and harassment and it was not tolerated in any circumstances.”

“This is the first time in the company’s 27-year history that we have been involved in proceedings of this nature.”

It is worth noting that there is a common perception (true or not) that internal investigations may be biased, subject to conflict of interest and favour the employer.

Whether or not it is your first complaint, to ensure a through independent investigation that is not biased investigation or subject to claims of a conflict of interest, it is recommended that the investigations into complaints of bullying, harassment, sexual harassment and discrimination are outsourced to a professional and experienced investigator – we can help http://awpti.com.au/investigations/

The cost of an external investigation will likely be far less than the cost of defending the matter in court.

For more details of the article relating to this case – http://www.abc.net.au/news/2017-02-15/former-lorna-jane-employee-amy-robinson-break-down-in-court/8271576

More details about this case –http://www.9news.com.au/national/2017/02/14/14/04/qld-lorna-jane-bullying-trial-begins?

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

 

Evidence 2

Evidence rules

Evidence rules – When conducting a workplace investigation there are rules relating to evidence that you need to be aware of and adhere to.

The laws of evidence prescribe standards to which a fact must be proved, in workplace investigations that are generally classed  as civil proceedings in nature whether or not they end up in a court or tribunal, facts must be proved on the balance of probabilities. If the matter is of a criminal nature the facts must be proved beyond a reasonable doubt.

The civil burden of proof is considered to be a lower standard

Rule of evidence

Relevance:
Evidence obtained during an investigation or interview should be relevant to the matters under investigation.

Hearsay:

The hearsay rule is complex, however basically hearsay evidence is third party evidence for example John tells you that Julie told him that she was being bullied by Mike.

The evidence provided by John is hearsay. You need to interview Julie to obtain the information.

Hearsay evidence is unlikely to be admitted if the matter goes to court.

Best evidence:
It is better to rely on original documents, direct evidence from the parties and witnesses.


Corroboration:
It is wise to seek multiple sources of evidence.

Similar fact:
Be wary, just because you have evidence that a respondent behaved in a certain manner in the past does not mean they behaved in the same manner during the events that lead to the current investigation

Chain of evidence
You may have to show that the evidence you are relying upon is the actual evidence that you discovered during the course of the investigation for example documents or physical objects.  I will cover the chain of evidence in part 3.

If you intend to conduct internal investigations I highly recommend that you consider purchasing our Investigation Toolbox http://awpti.com.au/investigation-toolbox/

or the Investigation Interview Manual.  http://awpti.com.au/investigation-interview-manual/

If you require assistance with the investigations of workplace misconduct issues such as bullying, harassment, sexual harassment of any other issues please contact us at enquiries@awpti.com.au http://awpti.com.au/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

 Evidence

Responding to sexual harassment complaints – Part 1

Responding to sexual harassment complaints can be a daunting task for managers and HR managers, if you get it wrong there can be very costly consequences.

In the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC illustrates a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues.

In part 1 I will discuss outsourcing complaint investigations, in part 2 I will discuss conducting investigations internally (more details)

When you are faced with a complaint of sexual harassment the first decision you should make is should this be investigated, bit of a no brainer here, YES of course it should.

The second decision is, do we handle the matter internally or bring in an external expert.

Here is what the Fair Work Commission said about outsourcing workplace investigations, http://awpti.com.au/outsourcing-investigations/

When making the decision I recommend that you ask the following questions,

  1. Who will conduct the investigation?
  2. Do we have someone, or do I have the necessary expertise and/or experience to conduct the investigation.
  3. Is the nominated person or am I comfortable conducting the investigation.
  4. Does the nominated person, or do I have the time to conduct the investigation. This question is often overlooked, however investigations take time, time away from all your other work.

If the answer is NO to any of the questions it is recommended that you considering outsourcing the investigation.

A catch phrase that comes to mind is used by a Sydney conveyancer in radio ads,

“When all you do is conveyancing,
you get very good at it”

That statement very much applies to workplace investigations.

So you have decided to outsource the investigation, what now?

Unless you have a previous relationship with a workplace investigator it is likely that you will turn to Google where you will find a number of listings, so who to choose and why?

A Lawyer might be a good choice, after all they understand the law as it relates to workplace issues, but do they have the experience in conducting investigations, conducting investigative interviews and drafting investigation reports.

In face many law firms actually outsource investigations to professional investigators, I have worked for a number of law firms, this allows the lawyers to be able to provide advice based on the investigation report without bias or any suggestion of a conflict of interest. See http://awpti.com.au/law-firms/

A workplace investigation firm is also a good choice, however you must ensure that whoever is nominated to conduct the investigation has relevant expertise in the particular type of complaint you are dealing with.

Many  workplace investigation firms employ investigators with a policing background who have experience in interviewing, evidence gathering and brief (in this case an investigation report) preparation but remember policing may be different skill set to workplace investigation.

As an employer or HR professional you are able to ‘shop around’ for the investigator you want and who you feel comfortable with and also a price you are happy to pay.

While outsourcing may take away the stress of the day to day handling of the matter, you should still maintain a level of control, this is achieved by setting out a clear ‘terms of reference’ at the start and discussing and approving the investigation plan, see http://awpti.com.au/investigations/engage-awpti/

During the course of the investigation it is also important to establish points of contact, milestones and communicate with the investigator on an on-going basis through-out the investigation to ensure that the investigation is carried out in a timely manner.

Finally the investigator should be available to disuses their final report and debrief the parties  should you wish them to do so.

In part 2 I will discuss how to conduct the investigation internally.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

AWPTI can assist you with by conducting misconduct investigations, the Principal Phil O’Brien is a highly experienced and skilled workplace investigator, Lawyer and former member of the NSW Police who can guide you through the minefield of sexual harassment investigations.

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 investigator.

responding sexual harassment complaints