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 Myth Busting

Workplace Bullying Myth Busting – 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.

Workplace bullying myth busting

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

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/

Procedural Fairness – Workplace Investigation Procedural Fairness – Workplace Investigation – When conducting any misconduct workplace investigation, grievance investigation, performance management or any other disciplinary process it is vitally important that employers ensure that employees involved at afforded procedural fairness. Many unfair dismissal applications are successful at the Fair Work Commission due to the absence […]

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

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.

Workplace complaint investigations Sydney – do it yourself or call an expert?

Workplace complaint investigations Sydney- You don’t have to be Sherlock Holmes to conduct a workplace investigation, however as a manager you may be the first port of call for someone making a complaint and it is important that you receive the complaint in a proper manner and take some sort of action, the 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 about and remember failure to take action could result in a breach of a duty of care and a claim of negligence.

As a manager if you have receive a serious complaint. You must decide whether or not to investigate.  While an investigation may be costly and time-consuming; it is likely the cost of NOT conducting one could be substantially greater.

If you dismiss or take disciplinary action against an employee without having properly investigated the incident and establishing relevant facts; it is possible that the Fair Work Commission, Tribunals or Courts could find that the dismissal or disciplinary actions were harsh, unjust or unreasonable and remedies at law could be applied.

If an employer fails to investigate a workplace complaint/incident the following may result:

  • The potential for action under the Work Health and Safety Act for any subsequent injury or illness suffered by the complainant.
  • An inability to defend a legal claim by an employee due to lack of evidence.
  • Being found vicariously liable for the actions of an employee (e.g. “reasonable steps” defence).
  • May give rise to potential penalties under the new Fair Work Act amendments – eg: the commission will be required to take into account what actions the employer took in response to original complaint.
  • Being unable to show circumstances of mitigation to a court or tribunal in response to a legal claim.
  • Failing to meet relevant duty of care to employees.
  • Being subjected to adverse and/or damaging publicity.
  • The loss of, or inability to attract, good employees – creates a poor work culture, (i.e. perception of employer incompetence).
  • Engage and expert or ‘do it yourself’?

Workplace complaint investigations – important considerations

Do we have someone with the necessary expertise and experience to conduct an investigation?

Do we have the time to undertake an investigation which could take between four to six weeks?

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

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

A common sense rule is that if you are not sure about what to do or how to do it or if you can do it properly or if you have the time to do it, call an expert, get some advice, the peace of mind that comes from having a professional investigator handle the issues for you is…….Priceless, really its elementary!

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

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

workplace complaint investigation Sydney