Workplace Investigation Interviewing Respondents Workplace Investigation Interviewing Respondents – Should you ‘tip you hand’ in regard to evidence you have during a respondent interview. If a respondent is giving you a different version of events than other witnesses have should you say something like, “I have evidence that you………..” or “I have been told that……” […]

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

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