Support person – workplace investigation

Support person – workplace investigation – All you wanted to know about a support person but were too afraid to ask.

It should be noted that under Section 387 of the Fair Work Act, in subsection “(d) any unreasonable refusal by the employer to allow a person to have a support person present to assist at any discussions relating to dismissal may be considered as part of the criteria for considering harshness etc.”

Although the FWA refers to unreasonable refusal, I recommend always offering a support person to an interviewee whether it is in relation to a disciplinary or performance related matter. If they refuse record the refusal.

What is a support person?
Someone who attends the interview to provide emotional support to the interviewee if need be.

What is the role of the support person?
Generally it is to sit down and be quiet. However a support person can ask questions of the interviewer and in most cases can provide advice to the interviewee if appropriate but should not answer for the interviewee. They may also speak on behalf of the interviewee if that interviewee is not able to do so.

Please note under some EBA’s the support person mostly union representatives are provided with the authority to advocate on the employee’s behalf. If that is the case you can rest assured that the union rep will let you know.

Who can be a support person?
An adult not involved in the interview or investigation.

Can you refuse the interviewee a support person?
No, not unless you want to fall foul of s387 ss(d).

Can you decide who the support person can be?
No.

Can you decide who the support is not?
Yes, if the person is a witness in the matter, a co-respondent, a child or if the person is apparently unsuitable. In the case of union officials or other officials, if the proposed support person has been the support person for the other party in an investigation.

What happens if the support person is prompting the interviewee?
This can actually be helpful as they may have discussed the matter beforehand and the support person may be helping the interviewee to recall events. The interviewee may be nervous and could tend to forget certain details during the interview. Listen carefully, if it is getting out of hand stop the interview and ensure the support person is aware of their role and boundaries.

What happens if the support person is disruptive?
It is always wise to ensure that the support person is aware of their role and boundaries before commencing the interview. If the support person is disruptive during the interview I recommend the following:

  1. Stop the interview and ensure the support person is aware of their role and boundaries. You may have to do this more than once
  2. If the interview is becoming unworkable, stop the interview and re-schedule it. It might be wise at this time to discuss the choice of support person with the interviewee

Can I eject a support person from the interview if they are becoming too disruptive?
Yes but I don’t recommend it. It could be considered as falling under s387 FWA ss (d). Stop the interview and re-schedule it, discuss the choice of support person with the interviewee.

Can the interviewer have a support person?
Yes and I recommend it if you have a feeling that the interviewee may be difficult.

What can my support person do?
That depends, if they are a co-interviewer they should be taking notes and then ask questions that you may have not or questions that help to clarify matters.

If they are simply there to support you I recommend that your support person should also be taking notes.

Having a support person can help to ensure that complaints are not made against you in regard to the manner in which the interview was conducted.

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/

 

 

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/

Bullying investigations Sydney

Bullying investigations Sydney – Complaints of bullying in the workplace are commonplace and it is recommended that employees respond in a timely and professional manner.

Workplace bullying is any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine, or threaten and which creates a risk to health and safety.

Workplace bullying can include:

  • Abusive, insulting or offensive language.
  • Behaviour or language that frightens, humiliates, belittles or degrades; including criticism that is delivered with yelling and screaming
  • Teasing or regularly making someone the brunt of practical jokes
  • Displaying material that is degrading or offending
  • Spreading gossip, rumours and innuendo of a malicious nature

Violence, assault and stalking are extreme forms of bullying that constitute criminal offences. Such behaviour should be reported directly to the police, examples include, but are not limited to:

  • Harmful or offensive initiation practices
  • Physical assault or unlawful threats

Workplace bullying can also be subtle & could include behaviour such as:

  • Deliberately excluding, isolating or marginalising a person from normal workplace activities
  • Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment
  • Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism

Covert behaviour that undermines, treats less favourably or disempowers others is also bullying; for example:

  • Overloading a person with work
  • Setting timelines that are very difficult to achieve or constantly changing deadlines
  • Setting tasks that are unreasonably beyond a person’s ability
  • Ignoring or isolating a person
  • Deliberately denying access to information, consultation or resources
  • Unfair treatment in relation to accessing workplace entitlements, such as leave or training or failure to provide adequate training

Workplace bullying can take place in person, through a secondary person or other persons or via remote communications such as telephone, email or the internet.

The use of social media such as Facebook, Twitter, Instagram or online chat forums for bullying purposes in or outside the workplace can constitute workplace bullying if it forms part of a pattern, or is an extension of bullying that has or is occurring in the workplace or is directed at a fellow employee.

When investigating workplace bullying 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 bullying investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

AWPTI provides professional investigations of bullying complaints 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/

 

 

 

Unfair dismissal flawed investigation

Unfair dismissal flawed investigation – Workplace investigations may be necessary part of business but are often complex and difficult to conduct, especially for the untrained and inexperienced.

A question that is generally raised after a complaint has been lodged is whether to conduct the investigation internally or to obtain external investigation assistance.

Before relying on the findings of an investigation especially when terminating an employee, employers must consider whether the investigation itself and its findings are sound and can be supported by the facts.

In the case of Jennifer Walker v Salvation Army (NSW) [2017] FWC 32 the internal investigation was found flawed due to reliance on false assumptions.

Link to case: http://www.austlii.edu.au/au/cases/cth/FWC/2017/32.html

In this unfair dismissal case at the Fair Work Commission, the applicant Ms Walker was the manager of the Salvation Army’s store in Lidcombe, Sydney. She had been an employee of the Salvation Army for 11 years and during that time had an unblemished employee record.

In July 2016, Ms Walker served a customer who wished to purchase items of furniture. Ms Walker did not enter a sale and provided the customer with a handwritten document indicating she had set aside certain items.

The customer arrived later in the week to pick up the furniture. The customer claimed he had paid $200 in full for the furniture, however, there was no record of sale. The Salvation Army subsequently investigated the issue. The investigation consisted of a review of the CCTV footage and discussions with Ms Walker and the customer.

The Salvation Army believed the customer’s account and that the CCTV showed Ms Walker had received $200 cash from a customer as payment for furniture he was purchasing.

The CCTV footage showed that while dealing with the customer, Ms Walker had at least $50 in her hand. Ms Walker denied receiving any money from the customer. The Salvation Army terminated her employment for serious misconduct (theft).

In considering the case, Senior Deputy President Hamberger noted that the more serious the alleged conduct the higher the standard of reasonable satisfaction is needed to be applied when determining whether the conduct occurred.

SDP Hamberger found that the evidence demonstrated that Ms Walker was holding a $50 note in her hand, but it did not establish that she had received that money from the customer. SDP Hamberger concluded the customer had not paid Ms Walker for the furniture and as a result held that Ms Walker had not engaged in serious misconduct and that her termination was unfair

SDP Hamberger was surprised at the lack of rigour in the internal investigation and that the Salvation Army so readily accepted the customer’s claims that he had paid ahead of the account of Ms Walker.

In finding that the dismissal was unfair, SDP Hamberger considered the criteria in section 392 of the Fair Work Act 2009 and awarded the Store Manager the maximum available compensation of twenty six weeks’ pay equating to $22,404.50.

Lessons for employers

When conducting a workplace disciplinary investigation, employers should undertake the following:

  • Ensure that the employee is afforded procedural fairness especially the right to be heard
  • Ensure that the employee is provided with an opportunity to respond to the allegations. This involves providing the employee with sufficient details of the alleged conduct in writing.
  • In the case of CCTV evidence, it is recommended that employers, ensure that the employee are permitted to view the footage prior to providing a response.
  • Genuinely consider different or alternative explanations for the alleged conduct, and ensure all available evidence is gathers from witnesses and duly considered.
  • Consider any mitigating circumstances prior to making a determination in regard to disciplinary action such the length of service or employment record and past behaviour of the employee.
  • Ensure impartiality and avoid making assumptions of guilt prior to the completion of a fair and thorough investigation;
  • Provide the employee with the opportunity to have a support person present, including providing the employee with sufficient opportunity to find an appropriate support person; and
  • When in doubt, consider other opinions before terminating.

This decision in this case demonstrates the disadvantages of undertaking an internal investigation which was not thorough and made assumptions (that is, the customer’s account was truthful), rather than taking a more open minded approach to all asserted facts.

If in doubt call an expert, getting a workplace investigation wrong can be costly both in terms of money and reputation.

AWPTI – workplace investigations 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 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.

 

Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/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/

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.

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 investigation

social media unfair dismissal

Unfair dismissal recently at the FWC

On 10 January 2017 an unfair dismissal hearing at the FWC in Melbourne upheld the summary dismissal of a worker who tested positive for cannabis after a car accident, despite the arguments that the employee was denied procedural fairness.

In Albert v Alice Springs Town Council, Commissioner Wilson found that the employee was fairly dismissed after having failed the drug test despite the employer not providing Mr Albert with the opportunity to respond to the drug test results.

The Commissioner’s held that the employee’s misconduct outweighed any procedural faults in his dismissal , in addition that it wasn’t obvious that failing to provide the worker with procedural fairness would lead to a finding he was unfairly dismissed.

Facts

In July 2016, Mr Albert was involved in a motor vehicle accident while driving a council truck, he was required to undergo a urine test which identified THC in his system that was 73 times higher than the Council’s ‘cut off’ level of 15 micrograms per litre.

The extremely high reading led the Council to summarily dismiss Mr Albert cited that his behaviour was serious misconduct in that it represented a danger to himself, other workers and the public.

Mr Albert filed an application for unfair dismissal arguing the Council had not provided him with the relevant paperwork when he took the urine test, and refused to give him copies of his results.

Although Commissioner Wilson found the Council had not provided the worker with procedural fairness, he held the dismissal was justified as the Council had a valid reason to dismiss the worker because his job involved safety-critical work.

Despite these defects in the Council’s internal disciplinary process, Commissioner Wilson held the dismissal was not harsh, unjust or unreasonable because the outcome of the disciplinary process would have been the same even if there had been no such defect.

As such Commissioner Wilson found that the seriousness of the worker’s actions outweighed the procedural faults of the Council in its decision to dismiss the worker. Further, had the procedural faults been remedied, and the Council formally put the test result to the worker, it would have been unlikely to affect or alter the ultimate outcome of the matter.

Lesson for employers

In most cases in relation to unfair dismissal, failure to afford procedural fairness before dismissing an employee will, result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation.

In very clear cases of serious misconduct, a lack of procedural fairness might save you from liability on an unfair dismissal claim, it is recommend that you still ensure that you provide procedural fairness and save yourself the argument later.

Have a well drafted drug and alcohol policy which clearly states what is acceptable behaviour and the consequences of any unacceptable behaviour will assist employers with disciplinary outcomes should an employee record a positive test result

Full decision – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc73.htm.

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/

Australian Workplace Training & Investigation can assist you 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. http://awpti.com.au/about-awpti/

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.

Unfair dismissal

Punishment must fit the crime

It is important for employers to remember when managing misconduct issues to ensure that the punishment fits the crime.

For example in the case of In Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2016] a matter involving the alleged misuse of internal communication a terminated employee was reinstated after it was found by the FWC that a reference to the Director of the Catholic Mission as “Mission Impossible” in internal emails was a misguided attempt at humour and not sufficiently serious to warrant termination.

The Fair Work Commission ordered the reinstatement after finding that “the punishment did not fit the crime”.

It is often the case that employers are unsure as to what course of action to take when dealing with misconduct, I advise the following;

  • Investigate the matter thoroughly ensuring that you gather and consider all the available evidence.
  • Ensure that you always afford the person subject of the complaint procedural fairness, the right to know what they are being accused of and the right that their response is heard and considered.
  • Take into account
    • o The nature and overall effect of the misconduct to the parties and to the organisation
    • o The employees history, length of time with the organisation and previous if any misconduct issues
  • Review options other than termination

Still not sure, contact AWPTI, we can take the stress out of dealing with misconduct issues for you.

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 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.

 

 

 

 

Busted – Myths workplace bullying

Busted – Myths workplace bullying – Instances of bullying in the workplace are an issue for many employers at some point especially if not managed correctly it can be very costly.  However a lot of the advice and suggestions for dealing with bullying while well-meaning simply do not work.

Let’s have a look at some of the common myths

Myth: You can eliminate bullying in the workplace.

Fact: Bullying is a human behaviour from the playground to the workplace bullies exist.  Is it unrealistic to believe bullying in a workplace can be completely eliminated but there are things you can do, some are effective, some are not.

What employers must ensure that they do is take ‘reasonable steps’ to stop or prevent bullying.

Myth: Having well written policies will stop workplace bullying.

Fact: Bullies ignore bullying policies, if they didn’t, they wouldn’t be a bully.

The well written policy helps to protect the employer should an alleged bullied employee make a negligence claim with regard to a breach of duty to maintain a safe workplace.

A well written policy is part of the ‘taking all reasonable steps’ defence and one of the first questions asked in a court of commission is “can you produce your bullying or workplace behaviour policy”

Not having a policy is a huge mistake, but a policy is not the be all and end all of an employer’s responsibility.

 

Myth: Conducting regular reviews on any anti-bullying related policies will help.

Fact: See above and again useful when arguing the ‘taking all reasonable steps’ defence.

 

Myth: Communicate anti-bullying policies to all employees to emphasise that compliance is required.

Fact: That works well for those who are not bullies but again is ignored by the bullies.

Of course it does add to the ‘taking all reasonable steps’ defence when an employer is asked, “what have you done?”

 

Myth: Providing information and training to all employees about bullying will reduce bullying

Fact: That’s bit like saying publicising speed limits will reduce speeding when we all know that a speed camera or marked Highway Patrol car reduces speeding.

While this information and training may be ignored by the bullies it is a good opportunity to clearly define bullying and what is unacceptable conduct.

This works best if you are very clear about the repercussions for those who bully.

Make sure that there is accountability of attendance in the case of face to face training (my preferred method) or completion if it is online.

If a complaint is made having evidence that the bully attended training is very useful when it comes to taking disciplinary action and of course it also add to the ‘taking all reasonable steps’ defence.

So far most of the suggestions that I have seen may help to cover the employer but actually have little effect of the prevalence of bullying in the workplace.

 

Myth:  Having a policy that states something like “in the first instance speak to the person bullying you and tell them how they are making you feel”.

Fact: Really, come on, not going to happen.

What you need is;

  • A trusted HR department or person that employees being bullied can come to and discuss the situation, seek help and get it
  • A trusted mechanism through which employees are able to make a complaint and know that action will be taken
  • An effective method of dealing with and investigating complaints
  • Trained HR professionals who can undertake a timely and efficient investigation or
  • A professional workplace investigator on speed dial (My number is below)

 

Myth:  The bully’s often aggressive persona and attitude makes them hard to deal with when trying to investigate complaints.

Fact: Workplace bullies like the feeling of power and will often try to ‘Lord it over’ and intimidate HR professionals.

In many cases I have been told by HR managers who have engaged me to conduct investigations that the perpetrator will be aggressive and difficult to deal with.  It’s funny how when I interview them in a formal manner they are often the opposite, often nervous, compliant and timid when they are out of their comfort zone and not able to flex their bullying muscles.

When bullies know that an employer is going to deal with them in a professional and formal manner the word gets out that bullying will not be tolerated and bullies will be dealt with.

Many workplace investigators are former police officers and are used to dealing with difficult people and they are not easily intimidated.

We refer to workplace investigations as the dark side of HR, as a manager or HR professional if you don’t want to walk on the dark side, call in an expert and save yourself the stress and know that we get it right the first time.

AWPTI – workplace 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/

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.