Summary dismissal, Serious Misconduct, Workplace Investigations

Summary dismissal, Serious Misconduct, Workplace Investigations – A recent case at the Fair Work Commission (Trialonas v Steric Solutions Pty Ltd) highlighted the need for employers to understand what Summary Dismissal is, how it applies to Serious Misconduct and the importance of thorough professional workplace investigations.

In this case a worker was summarily dismissed for using abusive language towards his supervisor but then allowed back to work to be dismissed 3 days later. After an initial hearing, an appeal and a rehearing DP Sams found in favour of the applicant and awarded three months compensation in the amount of $12,882.60.

DP Sams stated in his decision;
“In my view, there can be no room to doubt that the reasons for the dismissal were not only ‘capricious’ and ‘fanciful’, but were contradictory (serious safety breaches vis-a-vis ‘does not listen’). Despite these alleged safety breaches being raised in Ms Docherty’s statement; see: para [30] above, the respondent has not provided any evidence or details of the allegations. Moreover, I cannot be satisfied that these issues were the same safety breaches Mr James Docherty had in his mind when he directed Ms Docherty dismiss the applicant on 9 December 2016. There was no evidence to this effect and I am led to a conclusion that these issues were ‘cobbled together’ after the event, when it became clear that Mr James Docherty’s desire to have the applicant gone, without any explanation, would not sustain, even a cursory examination, as to its validity.”

Summary dismissal, Serious Misconduct, Workplace Investigations – Lesson for employers

  • Summary dismissal is used to immediately terminated an employee and have them removed from the workplace.
  • It should not be used as a matter of convenience
  • It should not be used to save paying the employee their notice period
  • It is advisable to conduct a thorough workplace investigation to ensure you have the evidence to support your decision

Summary Dismissal

Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal.

An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal. The employee still has a right to procedural fairness.

Serious Misconduct

Under the Fair Work Act, an employer can instantly terminate an employee’s employment, where the employee has engaged in ‘serious misconduct’.  In such circumstances, the employer will have to establish that the employee has in fact engaged in serious misconduct; and the employer will still need to follow a certain procedure to afford the employee procedural fairness

The Fair Work Regulations defines ‘serious misconduct’ as:

  1. willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
  2. conduct that causes serious and imminent risk to:
  3. the health or safety of a person; or
  4. the reputation, viability or profitability of the employer’s business.

The Regulations also list the following conduct as being deemed serious misconduct:

  • the employee, in the course of the employee’s employment, engages in theft, fraud or assault;
  • the employee being intoxicated at work;
  • the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

For more information about Summary Dismissal;
http://awpti.com.au/summary-dismissal/
http://awpti.com.au/summary-dismissal-2/
http://awpti.com.au/unfair-dismissal-workplace-investigations/

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

Workplace Bullying 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/

Workplace Investigator Licence

Workplace Investigator Licence – I was recently asked by as part of our Question Time video series (available on our YouTube channel…more details) “As an external HR consultant I have been asked to do a workplace investigation into a bullying complaint, do I need to have a licence to conduct workplace investigations?”

The answer to this is a most definite YES, A Workplace Investigator Licence must be held to engage in the investigation of persons

You do not require a licence if you are a HR professional conducting an internal investigation for your employer but any external person conducting an investigation into the business or personal activity of a person you MUST hold a Commercial and Private Inquiry Agents (CAPI) Licence for the authorised activity – investigation of persons.

The licencing of private investigators/workplace investigators in relation to the investigation of persons is governed in NSW by the Commercial Agents and Private Inquiry Agents Act (Link to Act) other states have similar Acts/regulations.  The licencing of workplace investigators in NSW is the responsibility of the Security Licencing & Enforcement Directorate (SLED) a division of the NSW Police.  In most states the licencing of workplace investigators is controlled by the state police.

The investigation of persons is considered for the purpose of the Act and licencing to be a ‘private inquiry agent activity’

If you run a business that employs consultants you must hold a Master Licence and if you are the person conducting the investigation you must be employed by a Master Licence holder and also hold an Operator Licence. If you are self employed you are required to hold a Master and Operator Licence. For full details click here

I am aware that a large number of HR Consultants, IR Consultants, mediators and other assorted consultants conduct workplace investigations without being licenced.

Problems for the unlicensed investigators

The CAPI Act states in section 5 states that it is an Offence to carry on business without master licence

(1)  A person must not carry on business in relation to any commercial agent activity or private inquiry agent activity unless he or she does so in accordance with a master licence for that activity.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 500 penalty units or imprisonment for 12 months, or both (in the case of an individual). 1 penalty unit = $110.00

 

Section 11 states that it is an Offence to carry on activities without operator licence

(1)  An individual must not carry out any commercial agent activity or private inquiry agent activity unless he or she does so:

(a)  in accordance with an operator licence for that activity, and

(b)  in the course of his or her employment with the holder of a master licence for that activity.

Maximum penalty: 500 penalty units or imprisonment for 12 months, or both.

There are exceptions detailed in schedule 1, however external consultants unless legal practitioners are not exempt.

Problems for employers engaging unlicensed investigators

If a dismissal or litigation result from an employer relying on the findings and/or recommendations made by an unlicensed investigator the entire investigation may be called into question.  The argument could be posed that the investigator was not authorised or licenced to conduct the investigation therefore the report, findings and recommendations should not be considered to be valid and should not be accepted by the court or tribunal.

The employee could bring a claim against the employer for not providing procedural fairness.  For example, an employee may argue that their dismissal was unfair because the employer should not have relied on the findings and report of an unlicensed investigator to effect dismissal.

Duty of Care issues may also arise where perhaps an unlicensed investigator has found found that a sexual harassment complaint is not substantiated and the complainant then sues the organisation in relation to the initial incident and the subsequent flawed investigation.

This may result in the need and cost associated with a second investigation.

Advice for employers

There are many reasons to engage an external workplace investigator including;

  • When the allegations are serious (eg employee misconduct such as alleged discrimination, sexual harassment, bullying, inappropriate use of the internet or social media, theft of company property, fraud and policy breaches);
  • When the stakes are high (when allegations are made against an employee, the employer’s business and reputation may be on the line);
  • The need for impartiality (the parties must feel that they have been treated fairly throughout the process);
  • The need for a high level of expertise and experience (cases can be complex, and the investigator must be adequately trained in interviewing witnesses, gathering relevant documents, and experienced to evaluate the evidence, assess credibility of witnesses, weigh corroborative, circumstantial and similar fact evidence, and reach a conclusion);
  • Timeliness (eg lack of internal resources);
  • Dealing with the media (eg allegations involving discrimination or harassment may attract unwanted media attention, and investigators must ensure that information regarding the investigation is not prematurely disclosed to the public);
  • Maintaining privilege (eg hiring a lawyer as an investigator can help to protect legal professional privilege);
  • Simplifying litigation (eg a comprehensive investigation report, if favourable to an employer, can shut down legal disputes at an early stage, as adjudicators may wish to rely upon the findings of a sound investigation report to determine issues of employer liability);
  • Rebuilding trust and morale (eg complaints of wrongdoing by employees can harm workplace morale and an employer who fails to conduct a fair and thorough workplace investigation into allegations risks creating more toxicity in the workplace.

1. Always ensure that the investigator you engage is qualified and licenced, we are all issued with a driver’s licence size photo ID licence.
2. Ask for the investigator’s licence number, most of us place it somewhere on our web sites, in my case it is 411939151 and located here
3. You can check to verity the licence here

AWPTI is fully licenced and insured to conduct thorough workplace investigations, contact us us should you need assistance.

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/

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/

Workplace Investigation Allegation Letters. The previous post about workplace investigation allegation letters (more details here) addressed the why you should use them. This article addresses the how and the format of allegation letters.

In a workplace investigation allegation letters are used to advise the person subject of the complaint about what has been alleged and also to invite that person to attend an interview to provide their version of events or their side of the story.

There are certain components that I recommend you include in an allegation letter, the section in italics are examples only;

The introduction: This generally tells the person subject of the complaint that a complaint has been made in reference to the alleged behaviour and will often nominate the complainant, for example;

(Name of investigator) has been assigned (if internal) or Investigation company (name) has engaged (in the case of an external investigator) to conduct an investigation and provide a report into complainant made against you by (complainant) that you have engaged in conduct that is inconsistent with (the insert name of company) Code of Conduct and the (insert name of policy potentially breached).

(Name of company) has an obligation to investigate these allegations

The invitation to attend an interview: This section will contain details of the where and when the interview will take place and details of the investigator. 

The investigation will be conducted by name of investigator (in the case of an external investigator)

On (Insert date, time and location) you are invited to meet with (insert name of investigator), to provide your response to the allegations made against you.

Notation about the support person: The Fair Work Act states that an unreasonable denial of a support person during an interview that could result in the dismissal of the employee might be considered to be a breach of procedural fairness guidelines and the dismissal found to be harsh. We recommend always offering a support person.

You are welcome to bring a support person with you, but we remind you this meeting is for you to respond to the allegations personally and present any information you would like taken into account. The role of this support person is as a witness or adviser but not an advocate. The support person must not be involved in the process or be someone that has been or may be interviewed in relation to the matter.

More details: At this point you may insert the details of the policy or section of the Code of Conduct the respondent has allegedly breached.

At the meeting you will be asked to respond to allegation/s that you have behaved in a manner that is not consistent with the (Name of company) workplace bullying policy;

(Name of company) Workplace bullying policy (insert exerts from the Code of Conduct for example).

            Standards of Conduct – The standards expected of employees include, but are not limited to:

Treat all fellow employees, customers and other third parties with courtesy and respect
Not engaging in bullying or harassing behaviour of any nature

To assist in the investigation, please be prepared to respond to each of the allegation/s in the attached table in your meeting with (investigator). The interview will give you an opportunity to provide information in regard to the complaints.

Information about the format of the interview: You should inform the respondent about how you intend to conduct or record the interview. NOTE you CANNOT record a person during an interview or otherwise without their knowledge, to do so may be a breach of the law, please check applicable law in your jurisdiction. In New South Wales it is the Surveillance Devices Act 2007.(full Act here)

The interview will be digitally recorded and a copy of the transcript will be provided to you as soon as it is available (if applicable). As part of the process, you may identify potential witnesses for the purposes of possible interviewing in relation to the complaints.

If you have any documents which you believe may be of assistance, please bring them with you. 

All information obtained during this investigation will assist in determining whether you have engaged in the misconduct as alleged and the making of a recommendation regarding whether or not disciplinary action is appropriate. 

Information about potential outcomes: It is important to advise the respondent of the potential outcomes especially if termination is a possibility,

Disciplinary action, if appropriate can include:

  • A formal apology;
  • counselling;
  • letter of warning
  • transfer/demotion;
  • dismissal;
  • Other forms of disciplinary action such as deductions from salary

Outcome of investigation

You should note no conclusions have been reached regarding the truth or otherwise of the allegations in the attached table.  The process being followed in this investigation is designed to ensure that you have a full and fair opportunity to respond before any conclusions are reached.

Confidentiality, victimisation and counselling: This is also very important to advise the respondent,

This investigation is confidential. You are asked not discuss it with any person who works at (the Company) or is closely connected to (the Company) except any person who is acting as your support person.  You must not discuss or mention the investigation or the complaint in writing or on social media, such as Facebook or Twitter.

The confidentiality restrictions applied to this investigation are to protect all parties involved, and apply to your support person also.  The confidentiality restrictions are also to reduce the likelihood that anyone may be victimised as a result of involvement in the investigation.  Victimisation is unlawful and can include criticising, threatening or abusing someone for making a complaint or being involved in an investigation process.

You can access employee assistance through (the Company) if you would like to – please contact (the Company) HR for further details if feel you require any support in this process.

The table of allegations: This will consist of the exact allegations you are asking the respondent to address during the interview

It is alleged that at 10.30am on Monday 1 January 2018 in the general office area, you behaved in that was inconsistent with the ABCDE (Company) Workplace Bullying policy when you spoke to Mary Co-worker in an intimidating and demeaning manner, when you said in a loud voice “What sort of idiot are you, you need to be sacked”.

More information about drafting allegations can be found here

Workplace Investigation Allegation Letters – How can AWPTI help you:

Drafting letters of allegation is a skill that should not be underestimated.  We have 5 options that may assist you, we can;
1. Conduct the entire investigation for you, that includes drafting the letters of allegation, details here
2. Provide you with comprehensive workplace investigation training, we conduct 1, 2 & 3 day courses to suit your needs, details here
3. Provide you with peer mentoring a guide you through the investigation, details here
4. Conduct an investigation review during the investigation including a review of your letters of allegation details here
5. We can supply you with our Workplace Investigation Document Toolbox that contains 40 documents and manuals including a template letter of allegation, more details and to order here

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/

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 issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

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

Workplace investigations drafting allegations – One of the most important parts of workplace investigations is the drafting of the allegations to be put to the person subject of a complaint. There are a number of important considerations;

Timing: Personally I interview the complainant first, then witnesses and then gather any other available evidence before attempting to draft allegations. I know of others who like to interview the respondent (the person subject of the complaint) earlier, but I prefer to have as much information as possible.

Content: An important part of the allegation is to ensure two of the components of procedural fairness are adhered to;
1. The right to know – the allegation must contain enough information so that the respondent knows what has been alleged.
2. The right to be heard – the allegation must contain enough information to allow the respondent to be able to make a response, should they wish to do so.

Format: There are various ways to format the allegation. When I draft an allegation it should consist of (as much as is known)
* Time and date
* Location (if important)
* The parties (complainant and respondent)
* The policy that relates to the behaviour or complaint.
* How the behaviour was inconsistent with the policy

An example of an allegation;

It is alleged that at 10.30am on Monday 1 January 2018 in the general office area, you behaved in that was inconsistent with the ABCDE (Company) Workplace Bullying policy when you spoke to Mary Co-worker in an intimidating and demeaning manner, when you said in a loud voice “What sort of idiot are you, you need to be sacked”.

The details:
* Time and date – Try to be as specific as possible, but you can’t use terms such as “at around”. Often, especially in bullying complaints the reports are delayed and may be historic, you may have to use between dates.  This makes it harder for an accurate response but it may be all you have.
* Location – if it is relevant include it.
* The parties – The complainant must be advised that their identify will be revealed to the respondent as part of procedural fairness.
* The policy that relates to the behaviour or complaint – Be specific. In the letter of allegations that I draft (which I will write about in part two of this article) I often include parts of the policy that the person subject of the complaint will be asked to respond to.
*The behaviour that was inconsistent with the policy – THIS IS VERY IMPORTANT and is an area where I see a lots of mistakes being made. You must be very clear about the terms you use. For example in the allegation about I used the terms “intimidating and demeaning manner.”

Intimidating came from the words used and the statement/interview from the complainant when asked how she felt. In this case there was a power unbalance with the respondent being able sack or have the complainant sacked in addition it was said in a loud voice.
Demeaning also came from the words used and complainant statement and that they were said in the general office in front of other staff.

You should also ask the complainant how they felt, be careful here, if they say “I felt intimidated” don’t put your own views on it and use for example the word ‘”Threatened” as you may not have the evidence to back up the use of that word, consistency is the key

As a side note when I conduct an investigation, I do all the paperwork including letters to the parties and especially the allegations.

Other terms: With any term you use you must be specific about the “how” For example if John Citizen bullied Mark Co-worker, how did he do it, things to consider:
* What was said
* Any contextual issues
* relationships
* The tone of voice (angry, aggressive etc)
* The volume (Don’t use the work yelled for example unless you have evidence.  If someone mentions yelled or raised voice during an interview I will ask this question “If we are now talking at level 3 on a scale of 1 – 10, give a a number for how loud it was ?”
*
Where there any other actions, where were you, such as how close did they stand, were you seated the list can go on, again be specific.

Well written allegations will provide the respondent with enough detail to respond without giving away all of your evidence.

Order: Personally I prefer to list the allegations in date order ranging form the most recent. I may change this process if the more serious allegations are out of that order.  In that case I co-list then allegations in order of seriousness and date.

Quantity: More is not necessarily better, don’t draft 150 allegations if 10 will do.  Don’t draft allegations for the sake of it, have evidence and don’t duplicate. 

Proof: The investigation, the allegations and the respondent interview are designed to help the investigator to prove or disprove the complaint, things to consider;
* You shouldn’t make up you mind about guilt or innocence prior to hearing the respondents version of events.
* Allegations should have evidence to back them up, it is up to the investigator to weight up the evidence at the conclusion of the investigation.
* You may draft an allegations with limited or slim evidence but the weight of that evidence must be considered during the final report.
* In the case of Paulson v Industrial Relations Secretary (Department of Justice) the NSW Industrial Relations Commission found that out of the 42 allegations (Full judgment available on our download page) the majority were not proven to a satisfactory standard and those that were proven did not warrant dismissal.

How can AWPTI help you: Drafting allegations is a skill that should not be underestimated.  We have 5 options that may assist you, we can;
1. Conduct the entire investigation for you as as i mentioned that includes drafting the allegations, details here
2. Provide you with comprehensive workplace investigation training, we conduct 1, 2 & 3 day courses to suit your needs, details here
3. Provide you with peer mentoring a guide you through the investigation, details here
4. Conduct an investigation review during the investigation including a review of your allegations details here
5. We can supply you with our Workplace Investigation Document Toolbox that contains 40 documents and manuals including a template letter of allegation, more details and to order here

Other articles that may interest you

Letters of allegation
Procedural fairness

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/

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 issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

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