Workplace Investigations – Mental health: The invisible challenge for business

Workplace Investigations Mental health – An important part of workplace investigations or performance management discussions is to allow the subject to respond to the issues and to listen, you never know what is going on in their life.

The pressures of daily life, financial stress, job insecurity and personal challenges create situations that flow into the workplace and can affect workplace investigations.

The costs of mental ill-health
In Australia, the cost of mental ill-health is said to be approximately $60 billion per annum. That’s roughly $4,000 per taxpayer. Putting aside the human cost, mental ill-health clearly has an economic impact on the growth of the Australian economy. This means it affects businesses, both directly and indirectly.
Managing what you can’t see
Mental health can be difficult for employers to understand. You can’t see the physical injury, so how do you know it exists? And while factors from outside the workplace play a significant role in creating mental health issues, the contributing factor of stress within the workplace can’t be ignored.

The impact of failing to manage mental ill-health in the workplace can include:

  • the loss of good employees
  • workers compensation claims
  • increased sick leave
  • high turnover of staff, and
  • bullying and harassment claims.

Trying to work out what causes mental ill-health in employees is difficult. It is an ‘invisible’ challenge for employers and one that requires a proactive approach for success.

Approaching with suspicion and looking to disprove an individual’s mental ill-health can have negative results for all involved.

Whether the individual is suffering mental ill-health from conditions like bi-polar disorder or schizophrenia, depression, anxiety or stress, they are all manageable conditions that employees (and other members of the Australian public) live with every day.

If a claim arises, having the right support and policies in place is a better strategy than trying to prove the case against the employee.

Implementing a mental health plan in your workplace
With regulatory intervention likely in the near future, 2018 is the year that all businesses need to implement a mental health program in the workplace.

Our top five tips for developing a mental health plan are:

  1. Let go of unhelpful incidents of suspicion against employees claiming mental ill-health. In the absence of reasonable evidence to the contrary, give employees the benefit of the doubt.
  2. Provide managers and supervisors with training about mental ill-health.
  3. Treat employees with mental ill-health as you would any injured employee, by allowing them to take time off to recover from an injury and to seek a safe return to work.
  4. Ensure that employees feel supported and that their mental ill-health circumstances will be kept confidential (where possible).
  5. Provide access to external support (like Employee Assistance Programs and other counselling).
Benefits of a workplace mental health plan
If businesses can implement an effective mental health plan in the workplace in 2018, they will enjoy a range of tangible benefits over the medium term, including:
  • cultural improvements
  • increased productivity
  • fewer workers compensation claims
  • reduced sick leave, and
  • minimised legal liability.

Not only will you contribute to strengthening the Australian economy, you will be on the front foot when regulations start to roll in.

Originally published at

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

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

AWPTI can assist you with a range of investigation and training services –

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

Workplace Misconduct – Things to consider when terminating an employee

Recently an employee who was terminated for workplace misconduct as as result of drinking too much alcohol on Anzac Day and was awarded $8229.00 after the Fair Work Commission found that her dismissal was valid but none the less harsh under the circumstances.

Avril Chapman was employed by the Tassal Group. Her job  involved scaling, slicing, weighing and packing fish.  She had  been employed since 1 August 2012 and was terminated for workplace misconduct on 1 May 2017.

On 25 April 2017, Chapman telephoned Tassal at 4.56 p.m. and left the following message:

“Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.”

The next morning the message was heard by a Tassal senior manager, Duane Baker, who was concerned that Ms Chapman was using a golden safety rule to excuse or justify her behaviour in consuming alcohol to an extent that she anticipated she would be unable to work the next day. Mr Baker felt that the behaviour was likely to amount to misconduct in that Ms Chapman had breached the Tassel’s Code of Conduct by not being responsible for her actions and accountable for its consequences.

Tassel provided a letter was given to Ms Chapman in relation to the workplace misconduct when she arrived at work on 27 April 2017. It read, “You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”

Ms Chapman responded to the allegation of workplace misconduct by email on 27 April at 7.06 a.m.
“Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day,” read the email.

“It was by BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got.

“As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work.

“Would it have been wiser for mw (sic) to call at 6 am on the 26th and plead illness? I think if I had done that then I wouldn’t be writing this letter now, but it wouldn’t have been the honest thing to do in my opinion.

“It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”

FWC Deputy President Barclay found the company had a valid reason for terminating Ms Chapman. DP Barclay found, “It makes no sense to me that a person at 4.46pm, some 13 hours before having to work, and before being involved in any activities which might result in impairment for work would decide to predict that she will be unfit to work the next day,’’ 

“Here the Applicant “took a sicky” in circumstances where she had voluntarily embarked upon a course of conduct that resulted in incapacity for work, the situation is perhaps made worse by the Applicant’s acknowledgement that she could have gone to bed early and been fit for work the next day.”

DP Barclay added that the case is not dissimilar to the situation of an employee “taking a sicky” without being ill. DP Barclay held that because this is the first time that Chapman has conducted herself in that manner in five years of working for Tassal her termination of employment was harsh under the circumstances, he stated “I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate,”

DP Barclay found that Ms Chapman’s lack of awareness, acceptance and commitment to meeting Tassal’s expectations demonstrates that the trust and confidence required for an employment relationship had been “destroyed”

Even though it was found reinstatement was not suitable, Ms Chapman was awarded $8,229 in compensation.

Workplace Misconduct – Lessons for employers

* Employers should consider all options before moving to termination of an employee
* Employers should consider things such as the length of a persons service and their previous employment record especially if unblemished
* If you are unsure about misconduct, call an expert and save yourself the headache.

Link to case –

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