Workplace Bullying Complaint Investigations

Workplace Bullying Complaint Investigations a HR or WHS issues?

Having investigated 100s of workplace bullying complaint investigation and conducted many training sessions. I have found that the requests/engagements have always come from the HR department or another senior manager (if there is no dedicated HR) but never from a manager involved in safety or WHS.

Would a shift in responsibility for the handling of bullying and harassment complaints and training from HR to WHS/HSE affect the process and how bullying and harassment was viewed and dealt with in the workplace?

Should workplace bullying be teat like any other health hazard in the workplace?

An important consideration is how bullying/harassment complaints are addressed by external agencies. In my experience a complaint of bullying/harassment is often accompanied by a WorkCover or Worker’s compensation claim, this I think would tend to indicate that bullying and harassment complaint fall under the jurisdiction of WHS/HSE manager.

Contrary to this complaints that proceed to the Fair Work Commission in the form of anti-bullying orders seem to be the jurisdiction of the HR manager. Either way I think that it is important for employers or organisation to have trusted and effective training, policing and investigation processes in place. I would love to hear opinions from HR/HSE/WHS managers.

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 outsourcing

What the FWC said about workplace Investigation outsourcing

The Fair Work Commission in the case of, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 has highlight the need for employers to consider workplace investigation outsourcing by engaging independent third parties to maintain a level of impartiality and transparency. https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

Workplace investigations especially in the case of bullying, harassment and sexual harassment complaints are complex and in many cases involve legal and cultural issues and risk.

Behaviour that is characterised as “bullying” or “harassment” can lead to claims under the Sex Discrimination Act (Cth) and the Work Health and Safety Act (Cth), and in addition bullying complaints can lead to the FWC issuing an anti-bullying orders under section 789FF of the Fair Work Act https://www.fwc.gov.au/disputes-at-work/anti-bullying

One of the challenges facing employers when dealing with workplace complaints is should the matter be investigated internally or externally by an independent, objective third party.

The Fair Work Commission in, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson held that appointing an objective third party to investigate complaints might be a prudent step to adopt where an employee “vigorously asserts” that an internal investigation would be compromised by bias or a lack of transparency.

The bullying complaint

Ms Cao, an employee of Metro Assist Inc, claimed she had been bullied at work by her manager.

She lodged a formal grievance with Metro’s CEO, alleging that her manager had acted in an aggressive and belittling manner towards her, and had exhibited other unruly behaviour including repeated and persistent undue criticism, demeaning sarcasm and exhibiting “mistrust resulting in [the employee] having a low self-esteem”. This was later followed by further claims of bullying.

Two investigations into Ms Cao’s complaints

Metro conducted two separate investigations into Ms Cao’s complaints. Both investigations were handled internally by Metro’s CEO and Human Resources team, and involved a number of interviews. During the course of the investigations, Ms Cao was afforded opportunities to ventilate her complaints and put her position.

The internal investigations concluded that Ms Cao’s allegations were unfounded. Metro subsequently engaged external meditation sessions with Ms Cao, following which (after submitting medical advice) her reporting arrangements were changed and she was offered sessions with an independent psychologist (to be paid for by Metro).

Ms Cao was dissatisfied with the outcome of Metro’s investigations, and subsequently lodged an application with the Fair Work Commission seeking an order to stop bullying under section 789FC of the Fair Work Act.

When to consider workplace investigation outsourcing?

Deputy President Sams concluded that the Manager had taken reasonable management action in her treatment of the Employee, and that no bullying conduct had occurred. Rather, it was concluded that Ms Cao’s:

“dogged, single-minded belief in the righteousness of her cause of action, no matter what the result of any investigation of her complaints, particularly those conducted by the employer, was [the reason why] she was not prepared to accept any outcome, unless it unequivocally vindicated her complaints”.

Deputy President Sams recommended that:

“where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation”.

Conducting the investigations – internally or bring in external expert?

The decision of whether an investigation is conducted on an internal or external basis must be made against the consideration of an employer’s obligation to ensure that investigations are conducted in an objective, fair, timely and thorough manner.

While there are advantages to conducting an investigation internally, this needs to be balanced against the risk of an employee believing that the investigation process is unfair or biased. In any workplace factors such as personal and professional relationships between staff members, internal political considerations, power imbalances and issues of competence and resourcing may have an effect on an investigation.

Engaging an independent third party to carry out an investigation can assist employers in balancing the interests of all parties to ensure the investigation is not only conducted appropriately, but perceived to be as such. It’s an application of the well-known saying

“not only must justice be done, it must be seen to be done”.

Key points for employers contemplating an investigation

When an investigation is being contemplated, these are some questions to be considered in regard to outsourcing investigations:

If the matter is investigated internally;

  • Can we ensure;
  • Transparency
  • Independence
  • An absence of bias
  • An absence of any conflict of interest
  • Will the parties involved object to having the matter investigated internally

Do we have a person within the organisation who has;

  • Solid experience and expertise conducting investigations?
  • Extensive experience conducting investigative interviews?
  • A full understanding of the rules of evidence?
  • An understanding of procedural fairness?
  • A comprehensive understanding of current legislation as it relates to workplace issues.
  • Experience making finding and recommendations and writing reports that will withstand the scrutiny of an industrial commission, the Fair Work Commission or a court?
  • The time and resources to conduct a thorough investigation

If in doubt I recommend that you call and expert.

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 and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

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

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 Performance Management

Workplace Investigation Performance Management – As a workplace investigator there are times when at least 50% of the complaints I investigate stem from employee disaffection with being performance managed.

Performance management is not bullying or harassment if it is reasonable management action that it is conducted in a reasonable manner. The Fair Work Act is clear that a worker is not bullied is they are subject to reasonable management action carried out in a reasonable manner (section 789FD)

There are a number of performance management mistakes that are particularly common,

Not dealing with poor performance when it arises, and hoping it all improves with time.

This is very common, not only does it mean that issues are not addressed, more importantly it gives the employee the sense that everything is OK, they are doing fine.

Unfortunately when that employee is approached by a manager who suggests that their performance is not up to where it should be the reaction is often shock and disbelief which translates in many cases to, you must be wrong, there is nothing wrong with what I am doing, why are you picking on me, this is bullying, this is harassment!!

Performance management is not bullying or harassment it is reasonable management action – when it is conducted in a reasonable manner.

When employers don’t want to confront an employee because they personally find it challenging and anticipate that the employee will also, they tend to give bland mixed messages which don’t convey the full picture to the employee.

Many managers don’t like to deliver bad news, unfortunately many managers are ‘gun shy’and are worried about upsetting people and getting complaints.

If you are a manager you are going to have to manage. If you manage there is a chance you are going to get complaints even if you are in the right and have followed the correct process. You cannot stop employees from complaining, remember in their mind, you are wrong, there is nothing wrong with their performance, so why are you picking on them, this must be bullying, this must be harassment!!

If you have an effective Performance management in place, dive it get it done.

Not acting to terminate employment when it has become clear that performance has gone way below the acceptable level and isn’t improving.

There are many reasons why an employee is reluctant to terminate and I have heard these reasons on a number of occasions;

  • The employee is a good person
  • The employee has a family
  • The employee is trying hard

In these cases an effective performance management process can often resolve the situation but as a manger you have to dive in and get it done.

Other reasons,

  • Fear of a bullying complaint
  • Fear of an unfair dismissal application
  • Fear of legal action.

If you have an effective performance management and a trusted investigation process in place, and assuming you have followed that process you will be able to defend actions against you, so stop worrying and dive in and get it done.

Now, if you don’t have effective performance management and a trusted investigation process in place it’s time to get on the phone and call an expert and start by getting some training in understanding the concept of Reasonable Management Action and how to conduct effective performance management. The money you spend may save you much more in the future, plus not having to worry………….. That’s priceless…… AWPTI can help, details here

So what does an investigator know about performance management?
We see it when it goes wrong, we see the mistakes, and we see it when the proper process has been followed but complaints are still made and of course we investigate the complaints.

Workplace Investigation Performance Management – Don’t get caught fearing performance management.

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/

External workplace investigator – What do you want me to do?

It is important that when you engage an external workplace investigator you are clear about what you want them to do and what final output you are expecting.

From the outset let me explain what I mean by output, it is what type of final report do you want. The options are;

  1. A short report – generally this provides an overview of the evidence, interviews with some basic findings and recommendations.

A short report is often used as a preliminary report or an interim report and may be used to detail the investigation up to a certain stage.

It is generally assumed that the reader has knowledge of the matter and is usually the person who has engaged the investigator in the first place

  1. Full report – This is a report that fully details, considers and evaluates the evidence provided by complainant/s, witnesses and respondents and any other evidence gather during the course of the investigation.

The full or final report are written so that a person, possibly a decision maker who has not previous knowledge of the matter is able to fully understand the who, what, when, when, why and how of the investigation.

Regardless of what type of report you want as an employer engaging an external workplace investigator there are certain additional things to consider, do you want;

  1. Just the facts
  2. The facts plus findings based on the complaint/s or allegations
  3. The facts, finding plus recommendations.

When I am engaged as an external investigator I ask for a letter of engagement and a Terms of Reference (ToR) for the investigation.

The ToR will tell me what you want me to do, for example;

  • Conduct an unbiased investigation into complaints made by X against Y
  • Provide a report (see above re what type of report)
  • Detail the methodology used during the investigation.

The ToR may also set;

  • Timelines, milestones or completion dates.
  • Details of witnesses to be interviewed
  • Details of other evidence known at the time
  • Details of any concurrent investigations that may have a bearing such as IT analysis.

The ToR may include some technical details such as

  • Who is the first point of contact in the organisation during the course of the investigation.
  • Who the report is to be sent to.
  • That the report is required to be signed and dated.

A property constructed ToR gives me as an investigator a clear understanding of what is required.

In many cases when I ask for a ToR my clients do not understand what I need. In those cases, I provide a template and discuss their requirements in detail before they provide me with the final ToR.

Communications problems can occur when a clear ToR is not provided.  At times I am engaged by other investigation firms for various reasons including them are not based in NSW or that they may not have the required skills or capacity to conduct the investigation. In these cases, I have tend to have limited access to the actual clients as they are protecting their interest with the client and in these cases most of my instructions are verbal, often despite requests for a ToR.

In one recent case I received verbal instructions from the investigation company and further verbal instructions from three members of the client HR team and importantly instructions from one member of the HR in regard to only requiring a preliminary report outlining the evidence from the initial round of interview only, but not detailing the witness evidence from transcripts of interview or the provision of the transcript.

No ToR was forthcoming, and the preliminary report was provided as per the instructions.

Following the provision of the report which was clearly marked ‘Preliminary Report’ I received feedback from the client organisation via the investigation company that one of the other HR team members was disappointed in the report. This is a very good reason to have a clear ToR at the start of an investigation.

External workplace investigator – Lesson for employers

  • Be clear about that you want
  • If you are not sure discuss this with the investigator

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

AWPTI can assist you with a range of investigation and training services – www.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 issues 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/
http://awpti.com.au/training/