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 […]

Workplace Bullying is an issue that is still facing an increasing number of employers and adversely affecting many employees.

To address these issues we recommend the following;
1. Training on what workplace bullying is and what it is not and what the behavioural expectations of the organisation are. AWPTI can assist with a number of programs for mangers, staff and HR professionals – http://awpti.com.au/training/

2. Investigate complaints in a timely and professional manner – Not sure what to do or how to do it, Read more,
AWPTI can assist – http://awpti.com.au/investigations/

What is workplace bullying?

Workplace bullying is any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety.

The principles contained in the anti-bullying provisions of the Fair Work Act also provide assistance in determining whether bullying has occurred. The Fair Work Commission’s Anti-bullying Benchbook provides download here: FWC Anti Bullying Benchbook

Bullying – When is a worker bullied at work?

See Fair Work Act s.789FD – Read more

A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

Bullying can cover behaviours carried out by one or more people.

The definition gives effect to the Government’s response to the House of Representatives Standing Committee on Education and Employment’s report Workplace bullying We just want it to stop”.

Repeated unreasonable behaviour

The Committee noted that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.

There is no specific number of incidents required for the behaviour to be considered ‘repeated’, nor does the same specific kind of behaviour have to be repeated.

Risk to health and safety

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.

The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.

The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

Safe Work Australia – Guide for Preventing & Responding to Workplace Bullying

Safe Work Australia has provided guidelines for the prevention of and response to workplace bullying – download here – Safework Australia Guide to preventing & responding to workplace bullying

Workplace bullying can adversely affect the psychological and physical health of a person. Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it. If effective control measures are put in place to address and resolve workplace issues early, a workplace can minimise the risk of workplace bullying and prevent it from becoming acceptable behaviour in the workplace.

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

Examples of behaviour, whether intentional or unintentional, that may be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include but are not limited to:

  • abusive, insulting or offensive language or comments
  • aggressive and intimidating conduct
  • belittling or humiliating comments
  • victimisation
  • practical jokes or initiation
  • unjustified criticism or complaints
  • deliberately excluding someone from work-related activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources to the detriment of the worker
  • spreading misinformation or malicious rumours, and
  • changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

If the behaviour involves violence, for example physical assault or the threat of physical assault, it should be reported to the police.

Workplace bullying can also be subtle & could include behaviour such as:

  • Deliberately excluding, isolating or marginalising a person from normal workplace activities
  • Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment
  • Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism

Covert behaviour that undermines, treats less favourably or dis-empowers others is also bullying; for example:

  • Overloading a person with work
  • Setting timelines that are very difficult to achieve or constantly changing deadlines
  • Setting tasks that are unreasonably beyond a person’s ability
  • Ignoring or isolating a person
  • Deliberately denying access to information, consultation or resources
  • Unfair treatment in relation to accessing workplace entitlements, such as leave or training or failure to provide adequate training

Workplace bullying can take place in person, through a secondary person or other persons or via remote communications such as telephone, email or the internet.

The use of social media such as Facebook, Twitter, Instagram or online chat forums for bullying purposes in or outside the workplace can constitute workplace bullying if it forms part of a pattern, or is an extension of bullying that has or is occurring in the workplace or is directed at a fellow employee.

Workplace bullying behaviour does not include:

  • Reasonable action taken, in a reasonable manner by an employer to counsel, transfer, demote, discipline, retrench or dismiss an employee
  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit about an employee’s employment
  • Reasonable administrative action taken in a reasonable manner by an employer about an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under the companies Grievance Resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

For assistance with training (we have specialised packages for managers, staff and HR professionals) or investigation please contact us – enquiries@awpti.com.au or 02 9674 4279

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

 

Unfair dismissal serious misconduct workplace investigation – When considering dismissing an employee for serious misconduct, employers must bare in mind the following;

  1. Does the alleged behaviour that resulted dismissal reach the threshold of serious misconduct
  2. Have you conducted an investigation – do yo have the evidence to support the decision to terminate?
  3. Does the punishment fit the crime?

More details of another case there the issue of the punishment fitting the crime was considered by the FWC – http://awpti.com.au/punishment-must-fit-crime/

More details about summary dismissal can be found here – http://awpti.com.au/summary-dismissal-2/

Recently at the fair Work Commission, the depot manager at an Australian courier company was unfairly sacked after he was accused of being responsible for the breach of a worldwide embargo on the J.K. Rowling book Fantastic Beasts and Where to Find Them, the Fair Work Commission has found.

The FWC heard that XL Express Pty Ltd sacked the depot manager for serious misconduct last November when he was told that the delivery of embargoed J.K. Rowling books a day early had damaged the company’s reputation. XL Express blamed the Brisbane depot manager for the embargo breach, a claim he denied.

Describing the delivery of embargoed freight as “the pinnacle of its operations”, the company said a November 17, 2016 embargo on the J.K. Rowling novel was breached on November 16.

Under cross-examination, the company agreed it had not lost its contract with the book distributor and had not been financially penalised for the embargo breach. It claimed a forklift driver removed the embargo consignment from the embargo area and that another staff member removed the consignment note from an embargo file. The depot manager was accused of failing to ensure staff followed set procedures for embargo releases.

The depot manager told the FWC that the error with the sorting and handling of the consignment note happened on November 15 when he was on leave.  He said he was unaware that someone had “accessed his office, gained access to the box where the embargo labels were kept and also retrieved the con-note from the embargo con-notes and had labelled the freight”.

He said no fewer than six people had taken these actions on the day he was absent from the depot.

The commission heard that the depot manager claimed the error that resulted in the embargo breach on November 16 “was not through any fault on his part”.

The depot manager, who had been employed from May 2008 until late November last year, was dismissed on the grounds of serious misconduct after a meeting in which he was also accused of workplace bullying. He said it was the first time the allegations had been put to him. He was also accused of wrongly claiming he had received training in the company’s anti-bullying procedures.

Fair Work Commission deputy president Ingrid Asbury’s judgment said XL Express had no documents and called no evidence to support the bullying allegations.

The depot manager told the commission he was not paid his long service leave entitlements because his job was terminated for misconduct.

In finding the dismissal was unfair, Deputy President Asbury ordered XL Express to pay the sacked employee $48,432 in wages, less tax and $6555 in superannuation contributions.

The commission found that although it was not a valid reason for his dismissal, the depot manager’s responsibility for depot operations “meant that he had a role in the series of events that led to the embargo breach”.

It said the dismissal was harsh because it was disproportionate to the misconduct in relation to the embargo breach.

It is important to consider the decision in Rode v Burwood Mitsubishi where is was held a valid reason must be “defensible or justifiable on objective analysis of relevant facts”.

 

Workplace Bullying Myth Busting

Workplace Bullying Myth Busting – Instances of bullying in the workplace are an issue for many employers at some point especially if not managed correctly it can be very costly.  However a lot of the advice and suggestions for dealing with bullying while well-meaning simply do not work.

Let’s have a look at some of the common myths

Myth: You can eliminate bullying in the workplace.

Fact: Bullying is a human behaviour from the playground to the workplace bullies exist.  Is it unrealistic to believe bullying in a workplace can be completely eliminated but there are things you can do, some are effective, some are not.

What employers must ensure that they do is take ‘reasonable steps’ to stop or prevent bullying.

Myth: Having well written policies will stop workplace bullying.

Fact: Bullies ignore bullying policies, if they didn’t, they wouldn’t be a bully.

The well written policy helps to protect the employer should an alleged bullied employee make a negligence claim with regard to a breach of duty to maintain a safe workplace.

A well written policy is part of the ‘taking all reasonable steps’ defence and one of the first questions asked in a court of commission is “can you produce your bullying or workplace behaviour policy”

Not having a policy is a huge mistake, but a policy is not the be all and end all of an employer’s responsibility.

Myth: Conducting regular reviews on any anti-bullying related policies will help.

Fact: See above and again useful when arguing the ‘taking all reasonable steps’defence.

Myth: Communicate anti-bullying policies to all employees to emphasise that compliance is required.

Fact: That works well for those who are not bullies but again is ignored by the bullies.

Of course it does add to the ‘taking all reasonable steps’ defence when an employer is asked, “what have you done?”

Myth: Providing information and training to all employees about bullying will reduce bullying

Fact: That’s bit like saying publicising speed limits will reduce speeding when we all know that a speed camera or marked Highway Patrol car reduces speeding.

While this information and training may be ignored by the bullies it is a good opportunity to clearly define bullying and what is unacceptable conduct.

This works best if you are very clear about the repercussions for those who bully.

Make sure that there is accountability of attendance in the case of face to face training (my preferred method) or completion if it is online.

If a complaint is made having evidence that the bully attended training is very useful when it comes to taking disciplinary action and of course it also add to the ‘taking all reasonable steps’ defence.

So far most of the suggestions that I have seen may help to cover the employer but actually have little effect of the prevalence of bullying in the workplace.

 Myth:  Having a policy that states something like “in the first instance speak to the person bullying you and tell them how they are making you feel”.

Fact: Really, come on, not going to happen.

What you need is;

  • A trusted HR department or person that employees being bullied can come to and discuss the situation, seek help and get it
  • A trusted mechanism through which employees are able to make a complaint and know that action will be taken
  • An effective method of dealing with and investigating complaints
  • Trained HR professionals who can undertake a timely and efficient investigation or
  • A professional workplace investigator on speed dial (My number is below)

Myth:  The bully’s often aggressive persona and attitude makes them hard to deal with when trying to investigate complaints.

 Fact: Workplace bullies like the feeling of power and will often try to ‘Lord it over’and intimidate HR professionals.

In many cases I have been told by HR managers who have engaged me to conduct investigations that the perpetrator will be aggressive and difficult to deal with.  It’s funny how when I interview them in a formal manner they are often the opposite, often nervous, compliant and timid when they are out of their comfort zone and not able to flex their bullying muscles.

When bullies know that an employer is going to deal with them in a professional and formal manner the word gets out that bullying will not be tolerated and bullies will be dealt with.

Many workplace investigators are former police officers and are used to dealing with difficult people and they are not easily intimidated.

We refer to workplace investigations as the dark side of HR, as a manager or HR professional if you don’t want to walk on the dark side, call in an expert and save yourself the stress and know that we get it right the first time.

Workplace bullying myth busting

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.

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

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/

 

Workplace Investigator – Why you should have a trusted one on speed dial.

Workplace Investigator – Having a relationship with a workplace investigator that can provide your organisation with benefits when it comes to;

Priority

Complaints, grievances and allegations of misconduct are stressful for everyone, the parties involved and the organisation.  You need to have these matters investigated in a timely and professional manner.  In addition to the disruption to the workplace, courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.

Having a relationship with a qualified and experienced Workplace Investigator will generally see you being given priority.  Recently I conducted interviews with 1 day of receiving instructions and interviewed some of the parties on a Saturday morning.

Quality

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an everyday basis, so in most cases when they engage an external investigator they really don’t know what they are getting.

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.

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 connect, 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 relationship.

Cost

While I cannot speak for others, I provide special rates for my on-going clients.  It’s worth noting that I have observed, the bigger the investigation company, the more they charge and cost is not actually an indication of quality.

Advise to businesses

If you don’t have a relationship with a qualified and experienced workplace investigator take the time to meet with and get to know one, it could save you a lot of time, stress and money in the long run.

Please feel free to download my professional profile – Professional Profile Phi O’Brien

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/

Support person – workplace investigation

Support person – workplace investigation – All you wanted to know about a support person but were too afraid to ask.

It should be noted that under Section 387 of the Fair Work Act, in subsection “(d) any unreasonable refusal by the employer to allow a person to have a support person present to assist at any discussions relating to dismissal may be considered as part of the criteria for considering harshness etc.”

Although the FWA refers to unreasonable refusal, I recommend always offering a support person to an interviewee whether it is in relation to a disciplinary or performance related matter. If they refuse record the refusal.

What is a support person?
Someone who attends the interview to provide emotional support to the interviewee if need be.

What is the role of the support person?
Generally it is to sit down and be quiet. However a support person can ask questions of the interviewer and in most cases can provide advice to the interviewee if appropriate but should not answer for the interviewee. They may also speak on behalf of the interviewee if that interviewee is not able to do so.

Please note under some EBA’s the support person mostly union representatives are provided with the authority to advocate on the employee’s behalf. If that is the case you can rest assured that the union rep will let you know.

Who can be a support person?
An adult not involved in the interview or investigation.

Can you refuse the interviewee a support person?
No, not unless you want to fall foul of s387 ss(d).

Can you decide who the support person can be?
No.

Can you decide who the support is not?
Yes, if the person is a witness in the matter, a co-respondent, a child or if the person is apparently unsuitable. In the case of union officials or other officials, if the proposed support person has been the support person for the other party in an investigation.

What happens if the support person is prompting the interviewee?
This can actually be helpful as they may have discussed the matter beforehand and the support person may be helping the interviewee to recall events. The interviewee may be nervous and could tend to forget certain details during the interview. Listen carefully, if it is getting out of hand stop the interview and ensure the support person is aware of their role and boundaries.

What happens if the support person is disruptive?
It is always wise to ensure that the support person is aware of their role and boundaries before commencing the interview. If the support person is disruptive during the interview I recommend the following:

  1. Stop the interview and ensure the support person is aware of their role and boundaries. You may have to do this more than once
  2. If the interview is becoming unworkable, stop the interview and re-schedule it. It might be wise at this time to discuss the choice of support person with the interviewee

Can I eject a support person from the interview if they are becoming too disruptive?
Yes but I don’t recommend it. It could be considered as falling under s387 FWA ss (d). Stop the interview and re-schedule it, discuss the choice of support person with the interviewee.

Can the interviewer have a support person?
Yes and I recommend it if you have a feeling that the interviewee may be difficult.

What can my support person do?
That depends, if they are a co-interviewer they should be taking notes and then ask questions that you may have not or questions that help to clarify matters.

If they are simply there to support you I recommend that your support person should also be taking notes.

Having a support person can help to ensure that complaints are not made against you in regard to the manner in which the interview was conducted.

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.

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