Managers HR Professionals Investigation Training Sydney NSW

We know that bullying, harassment and sexual harassment in the workplace is stressful to the victims, but it is often forgotten that the responsibility for dealing with and/or investigating these matters can also be very stressful on managers and HR professionals.

I wonder if this stress is the cause of investigations either not being done at all or being done in a less than effective manner. Managers and HR professionals are often blamed if they get it wrong, or take to long and you can’t please everyone all the time.

  • As a manager or HR professional you may be the first port of call for someone making a complaint
  • As a manager or HR professional  you may be the person that becomes aware of employee misconduct
  • It is important that you deal with misconduct and/or receive and deal with complaints in a proper manner
  • You must take some sort of action
  • Types of action can include
    • Informal enquiries
    • Formal investigation
    • Dispute resolution
  • Before you take any action, it is important to understand what the complaint is.
  • Failure to act could result in
    • A breach of a duty of care and a claim of negligence
    • Damage to the health and well being of the complainant
    • Unnecessary stress on all parties
    • Damage to the workplace envoronment
    • Damage to the brand image of the organisation

As you can see a lot rides how managers or HR professionals react to complaints in the workplace. So how can organisations take the stress off managers and HR professionals?, It’s not rocket science it’s a matter of training.

Train you managers to enable them to conduct timely and professional workplace investigations or to recognise when it is time to call in an external expert professorial.

To investigation complaints in the workplace you need to have skills in the following areas;

  • Complaint analysis
  • Investigation planning
  • The investigation process
  • Procedural Fairness
  • Planning and conducting interviews including
    • An understanding of the interview process
    • An understanding of reasonable and appropriate interview techniques and questions
    • How to get the best out an interview
  • Drafting allegations
  • Report writing
  • Making recommendations.

As a manager or HR professional in addition to expertise and skill in the investigation process, you will need an up to date knowledge of the law especially the Fair Work Act and the Work Health & Safety Act and how to apply them to your internal matters and also relate the law to your polices and processes, remember a lot rests on the outcome of your investigation including;

  • The heath of the victim
  • The future of the person subject of the complaint it is it substantiated
  • The future of working relationships in the organisation.
  • Potential for court action in the case of a claim of a breach of a duty of care
  • The potential for for unfair dismissal action if someone is terminated.

Getting it right the first time every time is not a ‘nice to have’ it’s an ‘essential to have’.

Don’t let your managers or HR professionals down. How can your organisation help to limit the stress on managers or HR professionals – get them trained.

Managers HR Professionals Investigation Training Sydney NSW

The AWPTI Investigating Workplace Misconduct PLUS is a 2 day course that covers

  • Reasonable Management Action
  • Types of complaints
  • Why do managers get complaints
  • Investigating misconduct and complaint handling
  • Why investigate
  • Investigation fundamentals
  • The investigation process
  • Planning investigations
  • Interviewing complainants and witnesses
  • Evidence
  • Drafting legally complaint allegations
  • Interviewing respondents
  • Making findings
  • Report writing
  • The Investigation toolbox
  • Interview room set up
  • Interview planning
  • Types of questions to ask
  • Investigative interview technique
  • Analysing and evaluating evidence
  • Role plays with facilitators and actors playing the parts of complainants, witnesses and alleged perpetrators

Course provides participants with:

  • Practical skills to enable HR professionals and managers investigate misconduct and employee complaints in the workplace and to understand and identify the type of complaint and to access the best method to deal with the complaint
  • The opportunity to hear and discuss real investigations
  • The opportunity to work through an investigation based on a real world scenario from receipt of the complaint to final report including interviewing all the parties
  • Analyse scenarios to develop skills to identify issue and formulate investigation and interview plans
  • Develop and practice their interviewing skills by interviewing actors in the roles of complainants, witnesses and respondents
  • Receive feedback on their interviews and tips and tactics from professional investigators.
  • Provide you with the experience to know that even with your training it is time to call in an expert

More details of the course can be found here – http://awpti.com.au/investigation-training/

In House courses

Due to current demand we are conducting these courses internally for organisations that want 4 or more managers or HR professionals with our trainer coming to you are a time to suit you.  Please contact us at enquiries@awpti.com.au

Public courses

We are seeking expressions of interest for a public course to be held in the Sydney CBD in December or January. If you would like to know more and/or go onto our waiting list please contact us at enquiries@awpti.com.au

Managers HR Professionals Investigation Training Sydney NSW – AWPTI – Managers HR Professionals Investigation Training Sydney NSW, Workplace investigation training Sydney and through-out NSW and national wide Misconduct training, bullying training, harassment training & sexual harassment training, dispute & grievance resolution training, management training

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

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 getting it right for first time every time – Recently an article appeared in the Brisbane times that alleged that a cadet journalist was dismissed unfairly, the headline reading – ‘This is disgusting’: Seven Network under fire after cadet dismissed”Link to article

Please note, this post is based on the information contained in the article no judgement is made on the validity of the content and to our knowledge the allegation made against Channel Seven have not been tested. Channel Seven has since denied the allegations and the matter was settled out of Court in February.

This article considers the general principals of procedural fairness. regardless of whether or not Channel Seven did the right things here are some tips about procedural fairness in dealing with misconduct matters.

Some of the issues raised in the article included;
“When Ms Taeuber asked for the statement of the person making the allegations of bullying against her, the HR manager said: “OK, so how do we want to plan your exit, Amy? I do understand that we don’t want to make it humiliating for you.”

This may fall under the FWA procedural fairness guideline – the right to know

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

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

s387 (b) whether the person was notified of the reason for the allegation of misconduct.

It is important that a person accused of wrongdoing or misconduct has the right to know what it is alleged that they have done. This should be done at the earliest possible opportunity in as much detail as is reasonable.

The right be heard or to respond to an allegation/complaint or performance issue is referenced in the Fair Work Act 2009 – s387 – criteria for considering harshness etc.

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

s387 (C)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

When a complaint or allegation is made against an employee or that an employee’s behaviour or performance is unsatisfactory, that employee has the right to respond or put their side of the story or version of events forward.

In the case of a complaint or allegation, after the employee has been advised of the issue they must be given sufficient time to consider the complaint before being asked to respond. The time will depend on the seriousness and perhaps the number of issues. We recommend putting yourself in their place and provide sufficient time.

The article also stated that;

“The audio recording puts a spotlight on Seven’s treatment of its employees. Early in the meeting, the HR manager had ordered Ms Taeuber’s support person, chief of staff Lesley Johns, leave the room. When Ms Johns began to protest, she was cut off.”

This may fall under the FWA procedural fairness guideline – the right to have a support person present

The right to have a support present during interviews that may result in disciplinary action being taken against the employee is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

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

s387 (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Workplace Investigation getting it right for first time every time – The investigation into workplace misconduct and complaints requires experience and expertise in understanding of the process, investigative interviewing, procedural fairness, the rules of evidence and relevant legislation. If you don’t have this or the time to conduct a thorough investigation we recommend one of three options;

  1. Call an expert – http://awpti.com.au/ or contact us on 02 9674 4279 or enquiries@awpti.com.au
  2. Get some training, we highly recommend – http://awpti.com.au/investigation-training/
  3. If you still want to ‘Do it Yourself’ without training we have a number of products that can assist – http://awpti.com.au/hr-products/

Don’t take the risk of getting in wrong, it can be costly.

AWPTI – Workplace training Sydney and through-out NSW and national wide
Misconduct training, bullying training, harassment training & sexual harassment training, dispute & grievance resolution training, management training.

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

workplace training Sydney, workplace training NSW, workplace training QLD, workplace training Victoria, misconduct training, bullying training Sydney, Workplace training harassment, sexual harassment training, grievance training, management training

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

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

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

Complaint & Misconduct Investigation Training Sydney

AWPTI will be conducting basic Complaint and Misconduct Investigation Training for HR professionals, managers and business owners in the Sydney CBD on 26 & 27 September 2017.

Why do HR professionals, managers and business owners need to have an understanding of how to deal with complaints and misconduct in the workplace?

  • As a HR professional,  manager or business owner you may be the first port of call for someone making a complaint
  • As a HR professional,  manager or business owner you may be the person that becomes aware of employee misconduct
  • It is important that you deal with misconduct and/or receive complaints in a proper manner and take some sort of action
  • Types of action can include
    • Informal enquiries
    • Formal investigation
    • Dispute resolution
  • Before you take any action, it is important to understand what the complaint is
  • Failure to act could result in a breach of a duty of care and a claim of negligence or successful unfair dismissal application by terminated employees

We have designed a course specifically for HR professionals, managers and business owners to help them understand the process and the legalities such as reasonable management action, performance management, procedural fairness, conflict of interest, bias and unfair dismissal.

This course is insurance for your business.

Details

When: Tuesday 26 & Wednesday 27 September, 9am to 4pm
Where: The University of Notre Dame Sydney, Pioneer House 140 Broadway Sydney
How to get there: 10 minute walk from central railway or park in the Broadway shopping centre, 1 Bay Street Broadway (Link)

Cost:
$1250.00, also includes
* The comprehensive resource/workbook.
* Templates investigation documents including letters to parties, interview plans and scripts, investigation plans and statement templates
* The AWPTI Investigation Interview and Procedural Fairness Manuals
* Lunch, morning tea both days

BONUS: 4 staff members for the price of 3.

Please note – Places are limited

Enquiries and further details

enquiries@awpti.com.au

Course details

    • Reasonable management Action
    • Types of complaints – definitions of bullying, harassment, sexual harassment and discrimination
    • Why do managers and business owners get complaints
    • Performance management to avoid complaints
    • Dealing with misconduct & complaint handling
    • Investigation fundamentals
    • Planning investigations
    • The Complaint Analysis Chart
    • Interview room set up & building rapport
    • Types of questions to ask and not to ask
    • Interview planning
    • Interviewing complainants and witnesses
    • Evidence
    • Drafting legally complaint allegations
    • Interviewing respondents
    • Making findings
    • Report writing
    • The Investigation toolbox
    • Legal responsibilities
  • The course includes role plays with facilitators and actors playing the parts of complainants, witnesses and alleged perpetrators
  • This course provides participants with:
    • Practical skills to enable HR professionals, managers and business owners to investigate misconduct and employee complaints in the workplace and to understand and identify the type of complaint and to access the best method to deal with the complaint
    • The opportunity to hear and discuss real investigations
    • The opportunity to analyse scenarios to develop skills to identify issue and formulate interview plans
    • The opportunity to develop and practice their interviewing skills by interviewing actors in the roles of complainants, witnesses and respondents
    • Feedback on their interviews and tips and tactics from professional investigators.

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

www.awpti.com.au

Workplace Bullying Harassment Training NSW ACT – Australian Workplace Training & Investigation (AWPTI) provides workplace training tailored to suit your business requirements through-out NSW and the ACT in the areas of;

  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Reasonable Management Action
  • Performance management
  • Other forms of misconduct including
  • Misuse of IT, internet and email
  • Misuse of resources
  • Breaches of Code and Conduct and policies
  • Social media
  • Acceptable behaviour at work functions
  • Fair Work Act – unfair dismissal

All of our courses are reality based, our case studies are taken from actual complaints and actual investigations.  Our facilitators are workplace investigators and lawyers who have investigated every type of complaint and grievance imaginable.

We have found that listening to the ‘war stories’ makes the training highly engaging and enjoyable for the participants. Our programs all come with a comprehensive resource workbook.

Workplace Bullying Harassment Training NSW ACT – Our training is designed to help employees at all levels to understand what is and what is not workplace misconduct and to help managers and HR professionals to deal with complaints and take all reasonable stop to eliminate and address misconduct in the workplace in a fair and timely manner.

Our courses provide participants with practical skills to enable employees to recognise what is and what is not bullying, harassment and discrimination and offer strategies to deal with bullying and sexual harassment effecting people at events in the workplace and also the opportunity to analyse and discuss real complaints and investigations

For more details about our
Employee training – http://awpti.com.au/employee-training/
Management training – http://awpti.com.au/management-training/
HR Professionals training – http://awpti.com.au/investigation-training/

Workplace Bullying Harassment Training NSW ACT – Contact us now to book your program 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 Bullying Training – What are you doing?

Workplace bullying can be costly to employers and organisations thought the loss of valuable staff, loss or productivity and the potential for legal cost and compensation payouts. For employees it can lead to psychological trauma and life life mental health issues.

Addressing workplace bullying is essential and one way of doing this is Workplace Bullying Training.

WorkSafe Victoria will conduct a series of workshops over the next three years to give business owners information about how to recognise, prevent and manage workplace bullying, and how to better help employees return to work after suffering mental health injuries associated with bullying behaviour.

Targeted inspections will also be conducted in the local area focusing on industries with the higher number of mental injury claims lodged due to workplace bullying.

Workplace bullying is a serious breach of workplace health and safety laws and employers tolerating it risk prosecution.

“Of the 26,000 injury claims lodged with WorkSafe in 2016, more than 3100 were for mental injuries, and 1260 of those mentioned bullying as a cause,” said WorkSafe’s Executive Director of Health and Safety, Marnie Williams.

“The insidious nature of bullying means that often the damage is done long before an injured worker makes a WorkCover claim, which is why it is essential employers have prevention measures in place and work with employees to identify unacceptable behaviour and deal with it immediately.”

Ms. Williams said workplace bullying will never be acceptable under any circumstances.

“Workplace bullying is characterized by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety,” said Ms. Williams.

“WorkSafe is committed to helping employers and workers manage these types of risks, and to take action where it is appropriate to do so.”

If your organisation does not have access to the type of programs offered by WorkSafe, AWPTI can assist with programs tailored to suit your need and your budget – http://awpti.com.au/employee-training/

We can also provide a range of training for managers and HR Professionals – http://awpti.com.au/training/

Don’t take the risk of doing nothing or getting it wrong.

 

Workplace Bullying is an issue that is still facing an increasing number of employers and adversely affecting many employees.

To address these issues we recommend the following;
1. Training on what workplace bullying is and what it is not and what the behavioural expectations of the organisation are. AWPTI can assist with a number of programs for mangers, staff and HR professionals – http://awpti.com.au/training/

2. Investigate complaints in a timely and professional manner – Not sure what to do or how to do it, Read more,
AWPTI can assist – http://awpti.com.au/investigations/

What is workplace bullying?

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.

The principles contained in the anti-bullying provisions of the Fair Work Act also provide assistance in determining whether bullying has occurred. The Fair Work Commission’s Anti-bullying Benchbook provides download here: FWC Anti Bullying Benchbook

Bullying – When is a worker bullied at work?

See Fair Work Act s.789FD – Read more

A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

Bullying can cover behaviours carried out by one or more people.

The definition gives effect to the Government’s response to the House of Representatives Standing Committee on Education and Employment’s report Workplace bullying We just want it to stop”.

Repeated unreasonable behaviour

The Committee noted that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.

There is no specific number of incidents required for the behaviour to be considered ‘repeated’, nor does the same specific kind of behaviour have to be repeated.

Risk to health and safety

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.

The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.

The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

Safe Work Australia – Guide for Preventing & Responding to Workplace Bullying

Safe Work Australia has provided guidelines for the prevention of and response to workplace bullying – download here – Safework Australia Guide to preventing & responding to workplace bullying

Workplace bullying can adversely affect the psychological and physical health of a person. Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it. If effective control measures are put in place to address and resolve workplace issues early, a workplace can minimise the risk of workplace bullying and prevent it from becoming acceptable behaviour in the workplace.

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

Examples of behaviour, whether intentional or unintentional, that may be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include but are not limited to:

  • abusive, insulting or offensive language or comments
  • aggressive and intimidating conduct
  • belittling or humiliating comments
  • victimisation
  • practical jokes or initiation
  • unjustified criticism or complaints
  • deliberately excluding someone from work-related activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources to the detriment of the worker
  • spreading misinformation or malicious rumours, and
  • changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

If the behaviour involves violence, for example physical assault or the threat of physical assault, it should be reported to the police.

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 dis-empowers 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.

Workplace bullying behaviour does not include:

  • Reasonable action taken, in a reasonable manner by an employer to counsel, transfer, demote, discipline, retrench or dismiss an employee
  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit about an employee’s employment
  • Reasonable administrative action taken in a reasonable manner by an employer about an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under the companies Grievance Resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

For assistance with training (we have specialised packages for managers, staff and HR professionals) or investigation please contact us – enquiries@awpti.com.au or 02 9674 4279

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

 

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 Procedural Fairness

Workplace Investigation Procedural Fairness – Decisions at the Fair Work Commission where a lack of procedural fairness has proved is costly once again

Two cases before the Fair Work Commission once again highlight that organisations are still having dismissal found as unfair due to a failure to afford an employee procedural fairness

In Schneider v Eliana Construction and Developing Group P/L [2016] FWC 5748  23 August 2016, the applicant Mr Schneider was employed as finance manager; he was dismissed for unsatisfactory conduct. The respondent claimed actions of applicant in submitting BASS statements without Director’s approval caused significant harm to company.

The Commission found that there was no valid reason for dismissal, that the applicant was not put on notice that employment at risk concerning either conduct or performance, he received no written or verbal warnings made and that there was an absence of procedural fairness. It was held that the dismissal unfair and compensation of $16,816 was ordered.

In Moore v Specialist Diagnostic Services P/L t/a Dorevitch Pathology [2016] FWC 5910 23 August 2016, the applicant Ms Moore was employed from July 2003 until April 2016 as pathology collector and promoted to collections co-ordinator. According to a termination letter she was dismissed for failing to follow reasonable directions

The commission found that the applicant not given clear and unambiguous opportunity to respond to reasons for dismissal and that the respondent’s decision maker not given all information to make decision.

In finding that there was no valid reason for dismissal, that the dismissal harsh, unjust and unreasonable and that the applicant was unfairly dismissed the Commission found there was lack of procedural fairness and uncertainty regarding respondent’s reasons for dismissal compensation of $27,900 was ordered.

The lesson for employers

If termination is being contemplated as an option, employers should consider an investigation to establish the full facts of the matter and provide the employee with the opportunity to respond in a timely manner.

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 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
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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/