Workplace bullying building trust – a recent article in HRD reference a A recent study conducted by Bupa that found a not so surprising link between trust and employee retention, with 53% of employees citing it as a major factor in whether they left a role. Article here

A great way to promote or destroy trust can be found in the way employers respond to incidents of bullying, harassment and sexual harassment.  From an employees perspective seeing something done builds trust, watching as nothing is done destroys trust.

I have conducted a number of investigations where I have heard comment such as “there was no point reporting this in the past, nothing ever happens.” when I hear this I consider it to be a systematic failure on the part of the organisation and in such cases it is not uncommon for staff to leave.

Workplace bullying building trust – It is a problem for employers when they are losing good staff only to be left with the bullies.

Workplace bullying building trust – What can employers do to build trust?

  1. Have a policy in place that sets out the behavioural expectations of the organisation.
  2. Have a trusted reporting mechanism in place for workplace bullying, harassment, sexual harassment and other forms of misconduct. It is important to remember, the mechanism will only be result if the reporters see action.
  3. Have a timely process in place to fairly, professionally investigate complaints of workplace bullying, harassment, sexual harassment and other forms of misconduct.

It is important that;

  1. The process to be transparent, remember trust coming from seeing something done
  2. Parties involved are kept up to date with the progress of any investigation.
  3. The person assigned to investigate the complaint has the skill, experience and time to do so in a fair and unbiased manner. If that can’t be achieved consider using an external investigator.

AWPTI can assist you with complete investigation services, however if you wish to DIY we suggest that you purchase our comprehensive Workplace Investigation Toolbox that contains 40 documents and manuals

  1. Step by step workplace investigation instructions (20 documents) (pdf)
  2. Complaint Analysis Chart (pdf)
  3. Investigation Flow Chart (pdf)
  4. Investigation Interview Manual (pdf)
  5. Procedural Fairness Manual (pdf)
  6. Reasonable Management Action Manual (pdf)
  7. Sexual harassment Manual (pdf)
  8. Evidence Manual (pdf)
  9. Template Risk Assessment form (Word doc)
  10. Template investigation plans x 2 (Word doc)
  11. Template letter to the complainant (Word doc)
  12. Template letter to the witnesses (Word doc)
  13. Template initial letter to the respondent (Word doc)
  14. Template letter of allegation to the respondent (Word doc)
  15. Template complainant interview guide/script (Word doc)
  16. Template witness interview guide/script (Word doc)
  17. Template respondent interview guide/script (Word doc)
  18. Sample witness statement (Word doc)
  19. Sample interim report (Word doc)
  20. Sample final investigation report (Word doc)

The word Docs allow you to use the templates and customise them for your investigation. Click here for further details or to purchase for only $795.00

If you don’t wish to purchase the entire toolbox you can purchase the manuals separately – More details

You may be interested in these articles
Drafting allegations – http://awpti.com.au/workplace-investigations-drafting-allegations/
Drafting allegation letters – http://awpti.com.au/workplace-investigation-allegation-letters/
(The templates in the document toolbox can ensure that you get this right)

AWPTI Investigation services – More details

AWPTI can also provide you with Workplace Investigation training – More details

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/

Conducting Internal Workplace Investigations

When conducting internal workplace investigations employers may face accusations such as;

  • The investigation or investigator is bias
  • There is/was a conflict of interest
  • There is/was undue influence from senior management
  • The investigation was not conducted in a proper manner
  • The investigation took too long.

These are common complaints from dissatisfied parties.

To ensure that you avoid such complaints when conducting internal workplace investigations we suggest the following;

  • The investigation or investigator is bias – ensure that the person appointed to conduct the investigation does not have a connection to the parties or an interest in the outcome that will affect their judgment or how they conduct the investigation.
  • There is/was a conflict of interest – similar to the first point it is important to ensure that the person appointed to conduct the investigation does not have any interest in the outcome. Conflicts of interest like bias may be actual or perceived.
  • There is/was undue influence from senior management – It is important to ensure from the outset that management understand that the outcome of the investigation will be based on the evidence and not the wishes of management.  The outcome of the investigation must be be moulded to fit a predetermined outcome.
  • The investigation was not conducted in a proper manner. The use of the correct process to ensure procedural fairness is very important. You must ensure that the person appointed to conduct the investigation has the necessary investigative skill and experience especially in the area of investigative interviewing.
    • The ability to draft and use the following documents are also of paramount importance
      • Investigation plans
      • Risk assessments
      • Letters to the parties
      • Allegation letters
      • Interview plans
      • Interim & final report
  • The investigation took too long – It is important to ensure that the person appointed to conduct the investigation has the ability to conduct the investigation in a timely manner. We all know that everyone is busy and investigations take time, however being involved in an investigation as the complainant, the person subject of the complaints or a witness is stressful, employers should aim to minimise the stress by conducting the investigation in a professional and efficient manner. Failure to do so can result in secondary complaints and legal action due to the stress and a potential breach of the employers duty of care.

AWPTI can assist you with complete investigation services, however if you wish to DIY we suggest that you purchase our comprehensive Workplace Investigation Toolbox that contains 40 documents and manuals

  1. Step by step workplace investigation instructions (20 documents) (pdf)
  2. Complaint Analysis Chart (pdf)
  3. Investigation Flow Chart (pdf)
  4. Investigation Interview Manual (pdf)
  5. Procedural Fairness Manual (pdf)
  6. Reasonable Management Action Manual (pdf)
  7. Sexual harassment Manual (pdf)
  8. Evidence Manual (pdf)
  9. Template Risk Assessment form (Word doc)
  10. Template investigation plans x 2 (Word doc)
  11. Template letter to the complainant (Word doc)
  12. Template letter to the witnesses (Word doc)
  13. Template initial letter to the respondent (Word doc)
  14. Template letter of allegation to the respondent (Word doc)
  15. Template complainant interview guide/script (Word doc)
  16. Template witness interview guide/script (Word doc)
  17. Template respondent interview guide/script (Word doc)
  18. Sample witness statement (Word doc)
  19. Sample interim report (Word doc)
  20. Sample final investigation report (Word doc)

The word Docs allow you to use the templates and customise them for your investigation. Click here for further details or to purchase for only $795.00

If you don’t wish to purchase the entire toolbox you can purchase the manuals separately – More details

You may be interested in these articles
Drafting allegations – http://awpti.com.au/workplace-investigations-drafting-allegations/
Drafting allegation letters – http://awpti.com.au/workplace-investigation-allegation-letters/
(The templates in the document toolbox can ensure that you get this right)

AWPTI Investigation services – More details

AWPTI can also provide you with Workplace Investigation training – More details

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/

Misconduct Investigation Allegation Letters. When AWPTI conducts an investigation we provide all the documentation including letters of allegation to our clients however I am often asked “Should we provide some sort of letter or email with the allegations?”
The answer is always YES.

Why: Recently I published an article about allegation letters, procedural fairness and why it is essential…Read more

In the case at the FWC of K v K&S Freighters Pty Ltd [2016] FWC 1555 (24 March 2016) an employee of 30 years was dismissed over misuse of a fuel card.  Commissioner Bissett found there was a valid reason for dismissal but there had been was a lack of procedural fairness.

The commission was satisfied the applicant sent freight without consignment notes, sent freight without charge and used a fuel card while he was on annual leave. Mr Kirkbright’s argument that this was how it had always been was not satisfactory.

Lack of procedural fairness

The Commissioner found that Mr Kirkbright was not advised that his conduct was an issue or were being investigated. In addition he was not provided with an opportunity to consider what was being alleged or the opportunity to respond.

The commission also considered that the HR department should have been better prepared for the meeting where Mr Kirkbright was dismissed:

“Whilst Mr K’s language in the meeting of 17 August 2015 leaves much to be desired; he displayed an appalling lack of respect for his manager and co-worker and this was the first time he had been confronted with the allegations. His reaction was not outside the realm of possibilities and should have been foreseen. The human resource manager, if she had not, should have walked the HR officer through what to do in such a circumstance.”

“The meeting should have been halted, Mr K given the allegations in writing and he should have been given an opportunity to respond either in writing or in a meeting at a future date (which could have been in a couple of days).”

The Commission found that the lack of procedural fairness and long service of the employee were both relevant.

On providing an opportunity to respond the commission said:

“In Crozier v Palazzo Corporation Pty Ltd… the full bench said:  As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified…”

Mr Kirkbright sought reinstatement but it was considered inappropriate. The matter was set down for compensation to be considered.

Later in Kirkbright v K&S Freighters Pty Ltd [2016] FWC 2743 (4 May 2016) the Commission ordered compensation in the amount of $11,624.25 plus superannuation.

Misconduct Investigation Allegation Letters – Lessons for employers

  • Procedural fairness cannot be ignored, it requires an employer to provides any employee accused of misconduct with a chance to respond and put their side or version of events forward before any final decision is made.
  • Don’t take short cuts, it’s not worth it in the long run.
  • If you are not sure what to do, get help, call an expert.

As I mentioned when we conduct investigations we ensure that all the documentation is legally complaint and that procedural fairness is afforded. If you wish to conduct investigations into misconduct internally I recommend;

  1. Have your people, HR professionals or managers trained. AWPTI can provide 1 and 2 day investigation training courses for HR professionals or managers – Read more
  2. If you have an understanding of the investigative process make sure all your documentation is complaint. For those that wish to DIY we have created an Investigation Document Toolbox – Read more
  3. Read our TOP TEN tips for workplace Investigations Misconduct, Complaints and Grievances – Read more

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 Misconduct Complaints Grievances – When faced with issues of workplace misconduct or complaints or grievances employers have a duty of care to respond in a manner that ensures a safe working environment. – Read more about the duty of care Generally when you receive a complaint you have 3 choices; 1. Outsource to an […]

Workplace Investigation Allegations and Procedural Fairness- The importance of ensuring correct procedure when it comes to advising a person subject of a complaint what the actual allegations against them are.

During the course of an investigation there comes a point where you must ensure that the person subject of a complaint is afforded procedural fairness.

Failure to afford an employee Procedural Fairness can result in;

  • Successful unfair dismissal action by terminated employees at the Fair Work Commission
  • Orders for compensation against the employer
  • Orders for reinstatement of the terminated employee
  • Negative publicity and damage to brand image
  • Negative impact on the business in general

General rules of Procedural Fairness – the rights of the employee   

The right to know the nature of the allegation/complaint against them in cases of behaviour issues

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;
(b) whether the person was notified of that reason

The right to respond to the allegation/complaint or performance issue

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:
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

The excerpt above is from the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/

Important questions are:

Q1. How do you advise the person subject of a complaint what the allegations are?
Q2. What information do you need to provide?

A1. You can advise the person verbally or in writing, (includes via email)

I always recommend providing the allegations in writing, why?

  1. You are able to clearly outline the allegations, verbal allegations can be poorly expressed and/or misunderstood and may be subject to argument at a later date
  2. The person subject of the complaint has the letter or email to refer to when formulating their response.  Full details of a verbal allegation can be forgotten, was the person fully listening at the time, how would you be able to tell?
  3. There can be no argument as to the nature of the allegation. A respondent can dispute the content of a verbal allegation, how can you prove it?
  4. providing verbal allegation only could be considered by the Fair Work Commission as poor process
  5. Using verbal allegations can lead to complaints of a lack of procedural fairness

In the case of Mr Michael Fitzpatrick Bunnings Group Ltd T/A Bunnings

The commissioner found (at 85)
In addition to not providing Mr Fitzpatrick with the basis of the allegation, in a written form, the Commission was not provided with a written record of the disciplinary investigation. The Commission was not provided with a written record of what actions were taken against Mr Fitzpatrick or provided with an adequate written record of the reasons why he was dismissed for serious misconduct. The only evidence provided to the Commission was a very abridged record of a disciplinary discussion/meeting on 2 October 2013 at the time of Mr Fitzpatrick’s dismissal

and at (91)
the Employer should have reduced to writing the allegations regarding Mr Fitzpatrick’s conduct which could lead to his dismissal. This would have enabled Mr Fitzpatrick to respond to the specific allegations and supporting evidence, rather than Mr Vitler and Mr Cherry making a choice regarding the “facts” based on the initial statement

The commission found in favour of Mr Fitzpatrick
Link to case here – Fitzpatrick v Bunnings Group Ltd T/A Bunnings

A2. What information do you need to provide?

If you are going to take the sensible (in my opinion) course it is important that your letter of allegation is complete and contains carefully worded allegations.  For full details of the content of a letter and the construction of allegations please see the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/

Your allegations must contain enough information to allow the person subject of the complaint to respond, ideally including the time, date and place where the behaviour or misconduct took place.  The actual behaviour subject of the allegation, The person/s subject of the behaviour (victim) and what policy the behaviour breached.

AWPTI can assist to take the headache of workplace investigations from you.  When we undertake an investigation we draft and provide to you all the letters to parties including comprehensive and legally compliant letters of allegation.

Should you wish to do it yourself we have a comprehensive Investigation Document Toolbox available at – http://awpti.com.au/investigation-toolbox/ and other products to assist HR professional and managers at – http://awpti.com.au/hr-products/

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/

Warnings, termination, unfair dismissal – It is important if as an employer you are going to rely on past warnings when terminating a employee, that the warning/s are relevant to the reasons for termination, failure to do so could see the Fair Work Commission hold the the termination was unfair as it did in the case of Taylor v Qube Ports P/L t/a Qube Ports (See below)

“The issue of tolerance of poor behaviour or performance is among the most delicate issues that managers and HR managers will face with employers weighing up questions of fairness, due diligence, productivity and workplace harmony – as well as legal aspects.

One potentially awkward scenario is when an employee has received official warnings that are dated or have expiry dates, that the employee duly sees out, only for the sub-par behaviour or performance to return soon after these dates.

The question is, how viable is it for an employer to refer back to expired warnings or a letter dated older than six month as grounds for further action or even dismissal?

It is important to remember if terminating or disciplining an employee not to confuse the purpose of warning letters, for example;

  • Previous warning letters that relate to behavioural issues or misconduct cannot relied on in cases of poor performance and vice versa.
  • If an employee breaches a safety guideline, process or procedure you cannot rely on a previous warning letters for unrelated behavioural or poor performance issues.”

Excerpt from the AWPTI Reasonable Management Action manual – http://awpti.com.au/reasonable-management-action-manual/

Warnings, termination, unfair dismissal – Taylor v Qube Ports P/L t/a Qube Ports

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for relief from unfair dismissal

The applicant Mr Taylor was terminated for breach of a lawful and reasonable direction given by employer regarding loading of ship on 1 July 2016.

Evidence was provided that the applicant had received three prior warnings for threatening behaviour and failing to follow company procedure.

Mr Taylor submitted that on 1 July 2016 the breach was not deliberate and that he was under a lot of pressure that day. In response Qube argued that applicant’s submissions in relation to nature or quality of breach was irrelevant to question of valid reason and stated that that applicant knew about procedure and decided consciously and wilfully not to follow it.

The Commission found applicant breached company procedure and that he was familiar with it but as it was an isolated event and that it did not constitute a valid reason for dismissal and that the prior warnings were not relevant as they were dubious factually with dubious processes.

The Commission found in favour of the respondent that applicant’s previous warnings should be taken into account but only to the extent of whether or not the incidents (relating to the warning) had occurred but not relevance to the dismissal.  The Commission found dismissal was harsh, unjust or unreasonable, that reinstatement inappropriate. Compensation of $18,225.80 less taxation was ordered.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2238.htm

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 Document Toolbox 

As an employer or business owner if you are confronted by workplace misconduct you must decide do it yourself or call in an expert. There are a number of reasons for making a decision to do it yourself but often the cost is a major factor, this is where the AWPTI Workplace Investigation document toolbox can assist you at the fraction of the cost of an external investigator.

Using easy-to-follow plain English advice, our DIY investigation toolbox will enable you to conduct a stress-free workplace investigation.  Helpful documents such as our uniquely tailored interview scripts take the hard work out of interviewing complainants, witnesses and the alleged wrongdoers.

The Australian Workplace Training and Investigation toolbox contains full documentation and far more than is offered anywhere else including a full set of workplace instructions, an interview manual, letters, interview scripts and sample investigation reports.

The Workplace Document Investigation toolbox will:

  • Guide you through the entire investigation – from the outset to conclusion
  • Assist you to prepare an investigation plan and draft interview plans
  • Guide you through the process of interviewing with the interview manual and scripts
  • Reduce the fear of being sued by aggrieved employees as a result of a poorly conducted investigation
  • Explain procedural fairness, the rules of evidence, conflict of interest and bias.
  • Tell you the “what”, the “why” and the “how” of workplace investigations

The comprehensive workplace investigation document toolbox contains 35 documents and an Investigation Interview Manual:

  1. Step by step workplace investigation instructions (20 documents) (pdf)
  2. Complaint Analysis Chart (pdf)
  3. Investigation Flow Chart (pdf)
  4. Investigation Interview Manual (pdf)
  5. Template Risk Assessment form (Word doc)
  6. Template investigation plans x 2 (Word doc)
  7. Template letter to the complainant (Word doc)
  8. Template letter to the witnesses (Word doc)
  9. Template initial letter to the respondent (Word doc)
  10. Template letter of allegation to the respondent (Word doc)
  11. Template complainant interview guide/script (Word doc)
  12. Template witness interview guide/script (Word doc)
  13. Template respondent interview guide/script (Word doc)
  14. Sample witness statement (Word doc)
  15. Sample interim report (Word doc)
  16. Sample final investigation report (Word doc)

For more details and to order the investigation Toolbox check out – http://awpti.com.au/investigation-toolbox/

For your security we only use PayPal for purchases, no personal information is stored on this site. You do not need a PayPal account, you can pay via a credit or debit card using PayPal.

We have a number of other investigation products and training programs coming online soon.

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/