Misconduct Investigation – employers are often required to conduct investigations into the misconduct of their employees, at times the behaviour of the employee may constitute serious misconduct.

Misconduct Investigation – Serious Misconduct

Under the Fair Work Act, an employer can instantly terminate an employee’s employment, where the employee has engaged in ‘serious misconduct’.  In such circumstances, the employer will have to establish that the employee has in fact engaged in serious misconduct; and the employer will still need to follow a certain procedure to afford the employee procedural fairness

The Fair Work Regulations defines ‘serious misconduct’ as:

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person; or
    • The reputation, viability or profitability of the employer’s business.

The Regulations also list the following conduct as being deemed serious misconduct:

  • The employee, in the course of the employee’s employment, engages in theft, fraud or assault;
  • The employee being intoxicated at work;
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

It is important for employees to be careful when dismissing an employee for serious misconduct to ensure that the alleged behaviour or misconduct reaches the threshold of ‘serious misconduct’.

The recent case of Dai v The Camberwell Grammar School t/a Camberwell Grammar School was an example of where this did not occur. In this case,  the applicant was employed at an independent boys’ school.  She was dismissed for failing to attend meeting concerning previous complaint against respondent.  She notified the school she could not attend the meeting on the day because she was unwell.

Commissioner Ryan considered if there was a valid reason for dismissal in that a valid reason is sound, defensible or well-founded not capricious, fanciful, spiteful or prejudiced.

Commissioner Ryan found that the dismissal harsh, unjustified and unreasonable, that the applicant had a clear reason for not attending the meeting, furthermore to characterise the non-attendance as serious misconduct was egregious.  The commissioner found that  the school imposed a completely unjust outcome on applicant, the dismissal was unfair. At the time of publication consideration was to be given to remedy.

Misconduct Investigation – Serious Misconduct – Lesson for employers

  • Investigate matters of employee misconduct thoroughly
  • Get advice if you are unsure
  • Balance any decision against all of the circumstances
  • Do not make rash decisions

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 bullying workplace harassment – Why has this research been done?

  • To better understand the prevalence of workplace bullying and harassment in Australian workplaces and to identify workplace risk factors associated with the occurrence of bullying and harassment.

What did we find?

  • Bullying was measured using both a widely accepted international definition and the Australian definition used by Safe Work Australia. The prevalence rates using the international and the Australian definitions were similar: 9.7 per cent and 9.4 per cent of Australian workers respectively reported they had been bullied in the last six months.
  • Of the seven types of harassment measured, the most common form of harassment experienced by Australian workers was reported as being sworn at or yelled at (37 per cent), followed by being humiliated in front of others (24 per cent).

What do the findings suggest?

  • Self-reported bullying is common in Australian workplaces and is associated with poor psychological health. Psychosocial Safety Climate (PSC) and psychosocial factors such as job demands, job control and job resources are also related to the occurrence of bullying and harassment.

You can download a copy of the report into Workplace bullying workplace harassment in pdf format – bullying-and-harassment-in-australian-workplaces-australian-workplace-barometer-results

Workplace bullying workplace harassment – Originally published at https://www.safeworkaustralia.gov.au/doc/bullying-and-harassment-australian-workplaces-results-australian-workplace-barometer-201415

A word doc version of the report can be downloaded from the link above.

An understanding Workplace bullying workplace harassment is vitally important for all organisations, failure to take action to prevent or respond can be costly and could constitute a breach of your duty of care. Australian Workplace Training & Investigation can assist with training and investigation of Workplace bullying workplace harassment issues. Please contact us or 029674 4279 or enquiries@awpti.com.au

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 – Why you should have a trusted one on speed dial.

Workplace Investigator – Having a relationship with a workplace investigator that can provide your organisation with benefits when it comes to;

Priority

Complaints, grievances and allegations of misconduct are stressful for everyone, the parties involved and the organisation.  You need to have these matters investigated in a timely and professional manner.  In addition to the disruption to the workplace, courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.

Having a relationship with a qualified and experienced Workplace Investigator will generally see you being given priority.  Recently I conducted interviews with 1 day of receiving instructions and interviewed some of the parties on a Saturday morning.

Quality

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an everyday basis, so in most cases when they engage an external investigator they really don’t know what they are getting.

When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed.

In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connect, please feel free to send me a request).

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationship.

Cost

While I cannot speak for others, I provide special rates for my on-going clients.  It’s worth noting that I have observed, the bigger the investigation company, the more they charge and cost is not actually an indication of quality.

Advise to businesses

If you don’t have a relationship with a qualified and experienced workplace investigator take the time to meet with and get to know one, it could save you a lot of time, stress and money in the long run.

Please feel free to download my professional profile – Professional Profile Phi O’Brien

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/

 

 

Discrimination Investigation Sydney 

Discrimination Investigation Sydney – Discrimination is any behaviour, practice or omission that makes distinctions between individuals or groups, so as to disadvantage some and advantage others.

Discrimination is unlawful on the grounds of:

  • Age
  • Carers’ responsibilities
  • Disability – physical or intellectual disability, HIV/AIDS
  • Gender
  • Irrelevant criminal record
  • Marital status, including occupation of spouse or partner
  • Parental status and carer/family responsibilities
  • Physical appearance
  • Political conviction
  • Pregnancy or potential pregnancy
  • Race, nationality or ethnic origin
  • Religious belief
  • Sexuality or sexual orientation
  • Social origin
  • Trade union activity
  • Transgender

Unlawful discrimination can take two forms:

1) Direct

2) Indirect

Direct discrimination

Is any action that excludes a person or a group because of an irrelevant personal characteristic, for example, an individual is treated less favourably on the basis of an attribute that the person may possess, such as race or disability.  Direct discrimination can include:

  • Not giving someone a promotion because of their gender
  • Forcing an employee to retire at 60 years of age
  • Employment advertising that has requirements, such as minimum age, which is not critical to the job

 Indirect discrimination

Occurs where a condition, requirement or rule is imposed, which on the surface is neutral or equal, but in fact operates in a way that discriminates against particular groups that have some characteristic in common (such as gender or national origin).  For example:

  • An advert that requires candidates to be 180cm tall for a certain job may be indirectly discriminating against most women
  • A requirement that everybody has to wear a company cap could be indirect discrimination on the grounds of religion. This is because members of some religions are required, as part of their faith to cover their head with particular headwear and wearing a cap would not be appropriate. This does not apply to appropriate and necessary safety wear
  • Removing the flexibility in start and finish times may discriminate against parents who are required to pick up children from school

Discrimination does not include

  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under a dispute resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

When investigating workplace discrimination it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conductingdiscrimination investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about discrimination investigations.

AWPTI provides professional discrimination investigations in a timely manner within your budget

AWPTI – workplace investigations 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

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

Anti-bullying laws disciplinary process

Anti-bullying laws disciplinary process – Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.

Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case demonstrated an inventive way in which the FWC’s anti-bullying jurisdiction can be used by employees facing disciplinary proceedings. It may have opened a can of worms for employers.

In Lynette Bayly [2017] FWC 1886, the FWC issued an interim order preventing her employer from taking any further actions to finalise an investigation into the conduct of an employee or to impose any disciplinary sanction on the employee arising from the investigation or to terminate the employment of the employee.

Ms Bayly had made a section 789FF “stop bullying” application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Despite the application, the employer continued the investigation and, as part of that process, advised her that draft findings had been made. Ms Bayly was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Ms Bayly’s lawyers wrote to the employer indicating she was unfit for work for a period that extended beyond the date of the proposed meeting.  They sought agreement from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in relation of the allegations under investigation.  The employer declined, confirming its intention to proceed with the disciplinary process.

As a result Ms Bayly sought an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

“The FWC may make an interim decision in relation to a matter before it.”

Can the interim order be made under these circumstances?

The employer opposed the interim order:

  • Ms Bayly had not provided a substantive response to the investigation;
  • the investigation was being conducted in a “reasonable manner”;
  • any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
  • the draft findings of the investigation are adverse to Ms Bayly; and
  • if Ms Bayly were to be dismissed, she has other remedies available to her.

The employer claimed that the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,

 “That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified.  The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where “the balance of convenience” lies. He then observed:

It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

  • claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
  • the fact preliminary adverse findings had been reached against Ms Bayly;
  • Ms Bayly’s medical condition;
  • concerns expressed about the employer’s process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.

Commissioner Hampton was satisfied

“… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  The allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.” 

Interestingly, a key aspect of the anti-bullying jurisdiction ‒ that no orders can be made once the employment relationship is at an end (except in very limited circumstances) ‒ was identified as,

“…a significant factor directly relevant to the balance of convenience and the exercise of any discretion”.

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is an interesting and concerning development, one that should be watched carefully by employers. It may well be a warning of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer’s disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the court if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

“given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly.  The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution.  Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences.  In this case, there are some particular circumstances that have justified the making of the interim order.”

Notwithstanding Commissioner Hampton’s words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should;

  • ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is “reasonable management action carried out in a reasonable manner”);
  • Consider out-sourcing bullying investigations to suitably qualified and experienced investigators.
  • Be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).

Australian Workplace Training and Investigation can assist with professional and timely investigations of workplace issues such a bullying, harassment, sexual harassment, discrimination and other areas of misconduct such as Code of Conduct breaches, IT and email misuse, theft and fraud, please contact us if you require assistance on 02 9674 4279 or enquiries@awpti.com.au

AWPTI – workplace investigations 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

Anti-bullying laws disciplinary process

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 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.

Anti-bullying laws disciplinary process

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

Misconduct Investigations Sydney NSW

Misconduct Investigations Sydney NSW – workplace misconduct comes in many and varied forms, misconduct investigations can be complex requiring experience and expertise.

Common types of misconduct that are investigated are;

  • Inappropriate behaviour leading to complaints and grievances,
  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Breach of policy or Code of Conduct
  • Inappropriate use of IT or other resources
  • Misuse of social media
  • Misuse of IP and confidential information
  • Inappropriate behaviour at work functions (especially Christmas parties) and conferences
  • Fraud, embezzlement or theft.

Misconduct can range from serious to a less serious nature; it may be a number of incidents or a single act.

When investigating workplace sexual harassment it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conducting misconduct investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about bullying, sexual harassment and sexual harassment investigations.

AWPTI provides professional  misconduct investigations in a timely manner within your budget

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

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