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/

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.

Misconduct Investigation – employers are often required to conduct investigations into the misconduct of their employees, at times the behaviour of the employee may constitute serious misconduct.

Misconduct Investigation – 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:

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person; or
    • 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.

It is important for employees to be careful when dismissing an employee for serious misconduct to ensure that the alleged behaviour or misconduct reaches the threshold of ‘serious misconduct’.

The recent case of Dai v The Camberwell Grammar School t/a Camberwell Grammar School was an example of where this did not occur. In this case,  the applicant was employed at an independent boys’ school.  She was dismissed for failing to attend meeting concerning previous complaint against respondent.  She notified the school she could not attend the meeting on the day because she was unwell.

Commissioner Ryan considered if there was a valid reason for dismissal in that a valid reason is sound, defensible or well-founded not capricious, fanciful, spiteful or prejudiced.

Commissioner Ryan found that the dismissal harsh, unjustified and unreasonable, that the applicant had a clear reason for not attending the meeting, furthermore to characterise the non-attendance as serious misconduct was egregious.  The commissioner found that  the school imposed a completely unjust outcome on applicant, the dismissal was unfair. At the time of publication consideration was to be given to remedy.

Misconduct Investigation – Serious Misconduct – Lesson for employers

  • Investigate matters of employee misconduct thoroughly
  • Get advice if you are unsure
  • Balance any decision against all of the circumstances
  • Do not make rash decisions

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 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 – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4630.htm

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

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

Choosing a Workplace investigator – You don’t have to be Sherlock Holmes with a trusted Doctor Watson at your side to conduct a workplace investigation, however to conduct professional, fair, timely and legally compliant investigations you need the right background, skill, experience and a high degree of patience.

As a manager or HR professional if you receive a complaint of bullying, harassment, sexual harassment or any other form of misconduct including misuse of IT/internet/email or other resources, breaches of policy or Code of Conduct, fraud just to name a few your first decision is do it yourself or outsource.

Here is What the Fair Work Commission said about outsourcing investigations

If you decide to outsource, what are you options. Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so in most cases when they engage an external investigator they really don’t know what they are getting. Here are some suggestions;

A smaller investigation firm.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service.

Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting?

Law firms
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.

Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications.

Qualifications and licences required

If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and a an applicable licence. In NSW Failure to do so could render the investigator in breach of the  Fair Trading Amendment (Commercial Agents) Act 2016, other states have similar provisions.

Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.

You can check is an investigator is licenced here

To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.

Insurance

It is wise to ensure that the investigator has public liability and professional indemnity insurance.

Background

The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.

How do you find an investigator?

When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/

In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connected, please feel free to send me a request).

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationships.

Choosing the right investigator can save you time, money and worry. getting it right the first time every time is essential.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

Misconduct Investigations avoiding bias

Misconduct Investigations avoiding bias. It is not uncommon especially when the outcome is disputed, for an employee subject of a complaint or grievance to claim that the investigation was unfair or investigator was bias or perhaps a conflict of interest existed, especially if there is an adverse finding.

How do you counter an employee’s claim that you may be bias in the investigation if you have prior knowledge of the parties and there is no one else that can conduct the investigation?

This is very common problem faced by HR professionals and managers after all you are part of the organisation, you know the people involved, you may have had previous adverse dealings with the person subject of the complaint or grievance.  Complainants may also raise the issue of bias or a conflict of interest if the outcome is not what they expected or desired.

Choosing an appropriate investigator is an important part of the investigation process. Where the proposed investigator has prior knowledge of the parties, even if there is no actual bias or conflict of interest it may give rise to a perception of bias, and this  perception by the employee might be hard to combat.

In the case of Fitzpatrick v Bunnings [2014] FWC 1869, (link to case) the Fair Work Commission found that the employee’s dismissal was unfair, in part because the Company’s choice of investigator created the perception of bias, if not actual bias.

You must be careful when choosing the investigator, if there is no one in your organisation who is suitably qualified, experienced, confident and has the time to conduct the investigation, you may wish to consider appointing an external investigator who has no prior knowledge of the parties and is able to conduct a completely impartial and unbiased investigation. AWPTI can assist – http://awpti.com.au/investigations/

Another issues that is well worth considering is that as a manager or HR manager you will still have to deal with the parties after the investigation. Investigations by their nature often appear to have winners and losers, if the complaint is substantiated the complainant wins, if it is not the person subject of the complaint of grievance (the respondent) wins and you then have to deal with and manager the loser.  It could be argued that telling the loser that the matter was investigated by an external expert gets you off the hook.

External investigators are independent they don’t have a vested interest in the outcome of the investigation. Such independence obviously doesn’t exist when professionals investigate activities of people within their own team or of someone they report to.

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 via phil@awpti.com.au or on 09 9674 4279

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 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/

Misconduct Investigations avoiding bias.

Stopping workplace bullying harassment sexual harassment – what can you do?

Stopping workplace bullying harassment sexual harassment, firstly it is important to accept that you can’t stop it 100%, but what you can do is take all reasonable steps to reduce the risk of workplace bullying harassment and sexual harassment to your employees and your business.

Workplace bullying, harassment and sexual harassment is damaging to those who experience it, those who witness it and can be very damaging and costly to the organisation.

Reasonable steps to reduce the risk

Stopping workplace bullying harassment sexual harassment is something that all organisations should aspire to, here are some suggestions;

  1. Have policies and procedures in place that clearly set out the behavioural expectations of your organisation. Policies and procedures alone will not stop the bullies and harassers they will however give you the mechanisms and ammunition to deal with complaints and grievances.
  2. Conduct training that re-enforces your policies and procedures and the behavioural expectations of your organisation. Once again training alone is not a magic pill but combined with your policies and procedures it will give you further mechanisms and ammunition to deal with complaints and grievances.
  3. Have a trusted reporting mechanism in place, make sure the key parties, managers, HR managers and team members or other delegated persons understand their role when a complaint or grievance is raised and how they should respond effectively. This may require training in how to respond to and manage complaints and grievances.Your employees must be able to have faith in the process, if complaints are not treated seriously and acted on in a timely manner employees will lose faith in the reporting process and it may be seen that bad behaviour is tolerated.
  4. Take action if something comes to your notice even if it hasn’t been officially reported. Everyone in a workplace has a duty of care to take all reasonable step to protect the health and safety of others, (see the Work Health and Safety Act sections 19 – 29 on duties and sections 30 – 33 on penalties – http://www.austlii.edu.au/au/legis/nsw/consol_act/whasa2011218/)An organisation or individual may be found to have breached the Act and it’s Duty of Care if it does not take all reasonable steps to eliminate and/or respond to workplace bullying harassment or sexual harassment and if that breach puts a person (the victim) at a risk of death or serious injury or illness (such as depression, anxiety, PTSD) serious consequences can follow by way of action under the act or being sued for negligence.
  5. Have an effective complaint and grievance investigation process in place. Ensure that matters are investigated in a timely, professional and fair manner to all involved. If the matter is complex and you don’t feel that you have internal expertise or experience consider outsourcing to an expert.
  6. Have an understand procedural fairness, the rules of evidence, effective interviewing technique, report writing requirements at law, the standard or proof in civil matters and the test applied at the Fair Work Commission in regard to unfair dismissal it might be worth considering engaging the services of a qualified and experienced workplace investigator. If you don’t have an on-going relationship with a workplace investigator I suggest you have a look at this article – http://awpti.com.au/workplace-investigator/

If you organisation is not able to tick ALL the above boxes;

  1. Check your policies and procedures, if necessary, update or re-draft the existing ones or draft new ones.
  2. Review your training;
    * All employees and managers should undertake bullying, harassment and sexual harassment training.
    * All managers should undertake reasonable management action, performance management and complaint handling training
    * All HR professionals should undertake complaint handling and investigation training.
  3. Review your reporting mechanism, do you have one?, is it effective?, do the employees trust and use it?
  4. Review your processes in regard to the reporting of matters should they become known
  5. Review your complaint and grievance investigation process, do you have the necessary internal expertise or experience or the time to deal with complex matters*.
  6. Call an expert.

* On complex matter, in my opinion all workplace bullying harassment sexual harassment complaints and grievances should be treated as complex matter, if they are not at the start they usually end up being that way by the time the matter is concluded.

If you take the actions listed above, while never been able to guarantee that you have eliminated bullying harassment or sexual harassment in your workplace, you can say that you have taken all reasonable steps.

AWPTI is able to help you at every step of the way with;
HR support – http://awpti.com.au/hr-support/
Training for managers – http://awpti.com.au/management-training/  staff – http://awpti.com.au/employee-training/ and HR team members – http://awpti.com.au/investigation-training/

We are currently offering 25% off the cost of all training programs for courses booked by organisations before the end of the financial year. Courses can be undertake at any time within the next 12 months

We also offer a range of investigation services that will ensure that complaints and grievances are dealt with in a timely and professional manner.

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

Stopping workplace bullying harassment sexual harassment – 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/