Dismissing employees – legitimate reasons but beware you must adhere to the process and afford procedural fairness.

Dismissing employees can be stressful, difficult and complex process. It is a decision that carries legal risks and can take a significant amount of time and resources.

When dismissing employees who earn less than the defined high income threshold currently $138,900 from 1 July 2016 (see http://www.afei.org.au/node/109027 or who are covered by an award or enterprise agreement, care needs to be taken to minimise the risk of an unfair dismissal claim in the Fair Work a state commission

 

To protect your business when dismissing employees in the case of misconduct you must;

  • Ensure that you have a valid reason to terminate an employee.
  • Act in a fair and reasonable manner during the process.
  • Ensure that you have provided the employee procedural fairness.
  • Consider the employees records and circumstances
  • Follow any applicable rules regarding dismissal, notice of termination, and final pay, including accrued outstanding leave.

 

With a legitimate reason, a proper procedure, and quality advice, you can feel secure in terminating an employee with minimised risk.

Below are four valid reasons for dismissing an employee.

1. MISCONDUCT

Misconduct can refer to a range of behaviour including breaching company policy and inappropriate behaviour that leads to Dismissing employees.

Serious misconduct includes theft, fraud, assault, other unlawful activity and any wilful or deliberate conduct that is fundamentally inconsistent with continuation of the employment, and conduct that causes and serious and imminent risk to health and safety or the reputation, viability or profitability of the employer’s business.

Your company policies, procedure or Code of Conduct should be clearly set out so you have grounds to take action. If you do not have these I strongly advise that you seek assistance and HR support, AWPTI can assist – http://awpti.com.au/backup/hr-support/

You must have evidence that misconduct occurred and that efforts were made to formally warn the employee about their misconduct. You don’t need to give any warnings in the case of serious misconduct before you can terminate, but you do need evidence and procedural fairness.

It is recommended that if termination is a likely outcome a thorough investigation is carried out to ensure you have the evidence and that procedural fairness (meaning giving the employee the opportunity to respond to allegations about their conduct) is afforded. AWPTI can assist with investigation services http://awpti.com.au/backup/investigations/

In cases of serious misconduct, employers do not have to provide any notice of termination. However, as this is a drastic measure, you need to be sure you have a sound basis and valid reason, having afforded procedural fairness. If you are unsure the employee may be suspended while and investigation takes place

2. INCAPACITY

Capacity relates to an employee’s ability to carry out the requirements of the job. In order to use incapacity as a legitimate reason to terminate an employee, you need to identify the core duties of the job position and assess the employee’s ability to perform them. In doing so, you must ensure that you are not unlawfully discriminating against the employee by reason of illness or some other incapacity.

Once again, you need evidence that a lack of capacity exists and that reasonable measures were taken to find a solution or provide alternative duties. This is especially important in the case of disability or medical incapacity.

It is very important that you have clearly written position description that clarify that nature of the position and the responsibilities of the employee. If you do not have clear and current position description AWPTI can assist – http://awpti.com.au/backup/hr-support/

3.POOR PERFORMANCE

Managing poor performance can be a risky process. A structured and well-prepared performance management plan or improvement procedure can protect you from ending up on the receiving end of a bullying or unfair dismissal claim.

Identify the performance problem and formally discuss it with the employee. You need to give concrete examples of poor performance rather than general comments about their productivity. Give them the opportunity to respond, advise them on how they can improve their performance and give them time to do so. Most importantly, you need to document the process.

Ensure that you can demonstrate a well-established performance management process in case a claim is made against you. Check contracts, industrial agreements, policies and procedures to ensure you are complying with any relevant rules or procedures. Verify your facts, ensure you have evidence and again, above all, document everything. http://awpti.com.au/backup/hr-support/

4. GENUINE REDUNDANCY

Redundancy is a valid reason for termination. You need to show that the employee’s position is no longer required to be performed by anyone because of changes in the operational requirements of your business.

Protect your business from an unfair dismissal claim by making sure you follow any consultation requirements outlined in an applicable award or registered agreement.

You should also have explored all reasonable opportunity to redeploy the employee in another position. It is best practice to consult employees about redundancy and redeployment regardless of the right to be consulted under an award or enterprise agreement. Affording empathy to employees who are adversely affected by redundancies goes a long way in minimising the risk of claims.

AWPTI With all areas of workplace investigations, training and HR support that are essential when dismissing employees.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

www.awpti.com.au

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 0409 078 322 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.

The importance of position descriptions

www.awpti.com.au/hr-support/

It is important for employers and employees to be very clear as to what are the relevant position descriptions and responsibilities for the employee’s job.

A couple of recent cases before the FWC have highlighted the need for employers to ensure that position descriptions accurately reflect the role and responsibilities of employees especially those who are paid over the high income threshold.

In the recent matter of Mitchell Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 before the Fair Work Commission, Mr Graham’s employment was terminated on 25 November 2015 and on 8 December 2015 he filed an unfair dismissal remedy application.  

On 24 December 2015, Globus filed its Employer Response claiming that Mr Graham’s salary exceeded the high income threshold and that he was not covered by an industrial award or agreement. There was no dispute between the parties that Mr Graham’s annual rate of earnings was above the high income threshold.

In determining the jurisdictional objection argued by Globus, the Senior Deputy President was required to determine if Mr Graham’s employment was covered by an award, which would establish Mr Graham as a person protected from unfair dismissal. Mr Graham asserted he was covered by the Commercial Sales Award 2010 (Award) as a “Commercial Traveller.”

At the hearing in the first instance Senior Deputy President Drake was satisfied on the evidence before her that Mr Graham spent a considerable amount of time away from the Globus office for a multitude of reasons including training, selling, and preparation of surgical equipment and provision of technical support. That evidence is consistent with Mr Graham’s job description.

However, Senior Deputy President Drake was satisfied that Mr Graham’s duties largely concerned the marketing and/or sales of Globus products an explicit or implicit requirement by the enterprise for an employee to give precedence to a particular task does not necessarily change the principal purpose for which that employee is engaged.

After having considered the evidence Senior Deputy President Drake was satisfied that Mr Graham was principally employed in a managerial capacity and therefore that he was not covered by the Commercial Sales Award 2010 when employed by Globus.

Mr Martin sought permission to appeal this decision; permission was refused on 2 September 2016.

A similar situation and outcome arose in Forkes v Amristar Solutions P/L [2016] FWC 5913

Lessons for employers, ensure you have clear and update position descriptions in place that set out the role and responsibility and where necessary unsure that employment contracts are consistent.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

The author Phil O’Brien, Principal of Australian Workplace Training and Investigation – www.awpti.com.au  is a highly experienced and skilled HR professional who can provide assistance with  drafting policies & procedures, position description and employment contracts, performance management and recruitment. www.awpti.com.au/hr-support/

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 a suitability qualified and experienced workplace investigator.

 

 

 

Recently at the Fair Work Commission employers have been penalised as a result of unfair Workplace Investigations.

Ensuring that Workplace Investigations are conducted in a timely matter is an important consideration at the FWC

In Australian Rail, Tram and Bus Industry Union v NSW Trains [2016] the Fair Work Commission found that there were unreasonable delays in the investigations of a safe working incident involving two train drivers.

The incident occurred in June 2014 and the outcome of one of the investigations was determined in May 2015. The Commission found that this period of 11 months was “excessive and unreasonable”.

The Commission found that the circumstances of the case did not justify this amount of time and delay – the drivers had admitted to breaching the employer’s policy from the outset and the Commission found there was little to consider other than responses from the two drivers regarding mitigation. Another investigation took around six weeks despite there being “nothing complex to determine”.

The employer argued that the reason the investigations took so long was because it was complying with its policies and procedures and because of the Christmas period. However, the Commission was critical of these processes, noting that “justice delayed is justice denied”.

The Commission did not accept that the Christmas period as a reason for delay, noting “Trains does not stop its operations over Christmas and nor should investigations affecting the livelihood and wellbeing of employees”.

Lesson for employers: Investigations should be conducted in a timely manner, failure to do so could be considered to be unfair, being investigated is stressful whether or not you are guilty of the alleged behaviour, put yourself in the shoes of the respondent.

In Cherunkunnel v Alfred Health [2015] an employee lodged a grievance under the enterprise agreement concerning his employer’s decision to issue him with a final warning and to demote him following a complaint made against him by a fellow nurse. The employee was stood down while the matter was investigated.

The Commission considered whether the investigative procedure adopted by the employer complied with the relevant enterprise agreement. The applicant argued that his employer did not comply with the enterprise agreement because he was not interviewed.

The enterprise agreement contained a number of procedural requirements, including that an employer must take all reasonable steps to give the employee an opportunity to answer the allegations, and to conduct a fair investigation.

The Commission found that providing the employee with a reasonable opportunity to answer any allegations and concerns could “realistically only take place during an interview” which ought to have formed part of the investigation.

The Commission found that if the employee is not interviewed as part of the investigation, then it would not have been conducted in a fair manner as the investigator would be making recommendations based on one side of the story.

Further, the employee was required to respond to a recommendation that he show cause as to why his employment should not be terminated without having been heard in relation to his version of the events prior to the investigator forming a view or making a recommendation.

The Commission found this approach to be procedurally unfair but concluded that the employer, in not terminating the employee’s employment but deciding to issue him with a final warning, took an appropriate approach in dealing with the issues relating to his nursing practice.

Lessons for employers: Procedural fairness especially the right to be heard should be considered as being “set in stone” it doesn’t have to be in the EBA to be a principle to be adhered to.

 

It is often wise to call in an expert to assist with Workplace Investigations, AWPTI can take the stress out of Workplace Investigations –  http://awpti.com.au/backup/investigations/

The author Phil O’Brien is a highly experienced and skilled provider of Workplace Investigator and training who can take the stress out of conducting Workplace Investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

You can contact me on 0409 078 322 or phil@awpti.com.au

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

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.

HR Support – Does your business have up to date and compliant workplace polices in place?

HR Support – In the recent case of Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] Fair Work Commission found that an employee who consumed cannabis before attending work was not unfairly dismissed for breach of the employer’s ‘zero tolerance’ drug and alcohol policy.

The applicant, Mr Clayton was employed by Coles at a distribution centre his job required him to operate manual handling equipment. Coles classed the distribution centre, as a high risk environment, had a ‘zero tolerance’ drug and alcohol policy.

in January 2016, Mr Clayton was involved in a forklift incident, it was accepted that the incident was not his fault; however Mr Clayton underwent an oral fluid drug test that returned a positive result for cannabis. Further testing confirmed the on-site test result.

On 1 February 2016, Coles conducted a disciplinary meeting and provided Mr Clayton with the opportunity to show cause as to why his employment should not be terminated. After considering Mr Clayton’s response, Coles terminated his employment summarily without notice or payment in lieu.

Mr Clayton argued that the dismissal was unfair because;

  1. He was advised during the induction training that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and he had complied with this.
  2. He reasonably believed that he complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work.
  3. His consumption of cannabis was linked to workplace stress and was part of his strategy to manage that alleged stress.

 

The Commission found that Mr Clayton’s dismissal did not constitute unfair dismissal because:

  1. There were valid grounds for Mr Clayton’s dismissal. The Commission concluded that it was reasonable for Coles to have a zero tolerance drug and alcohol policy that should be consistently applied because of:
  2. The nature of the workplace: a busy environment with various vehicles and machinery being operated;
  3. the work health and safety risks associated with employees working under the influence of drugs in this type of environment; and
  4. the lack of an objective test for determining Mr Clayton’s impairment.
  5. Mr Clayton was notified of the reason for his dismissal.
  6. Mr Clayton was afforded a proper opportunity to respond to the allegations. It noted that the meeting on 1 February 2016 was adjourned to allow Mr Clayton time to consider the allegations and provide a response.
  7. Mr Clayton was accompanied by a support person in discussions concerning the matters leading to his dismissal.

The Commission held that while the use of cannabis for pain relief may be considered a mitigating factor, that factor needed to be weighed up in circumstances where Coles had a confidential scheme and policy that encouraged self-reporting problems without sanctions. The Commission also found that the employee used cannabis for recreational purposes.

While the Commission also acknowledged that there were potential dangers for an employer in providing information about detection periods as this may detract from the zero tolerance message, any information provided to Mr Clayton by Coles did not provide a mitigating factor because:

  1. The window of detection was given as an indicative guide only and could not reasonably be expected to represent a guaranteed safe or reliable withholding period given the context in which it was provided.
  2. The responsibility upon an employee not to attend work with any detectable drugs in their system was clear and understood.
  3. Mr Clayton was advised that if in doubt, he should not attend for work.

The Commission found that Mr Clayton had consumed cannabis on the morning before his shift, and could not be confident that his system would be clear of the drug when he attended work. He was therefore, at best, recklessly indifferent to his potential to breach the zero tolerance policy, and any confidence to the contrary could not be soundly based.

While the Commission held that the lack of notice or payment in lieu of notice would usually be a factor strongly supporting a finding that the dismissal was unfair, this was not decisive here. This was because Mr Clayton had misled Coles about the timing of his consumption of cannabis and could not have legitimately relied upon the indicative window of detection.

Lessons to be learned for employers

  • This case highlights the importance of having a comprehensive drug and alcohol policy that is consistently applied.
  • It is advisable to provide employees with training that clearly outlines their responsibilities in relation to workplace expectations and behaviours
  • Get good HR Support

If you organisation does not have up to date and complaint workplace polices in place and training for your employees, please contact AWPTI and allow us to assist you with HR Support – http://awpti.com.au/hr-support/

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

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 0409 078 322 or phil@awpti.com.au for HR Support

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.

Employee Investigation

What if the employee does not want an investigation into their complaint?

Employee investigation – This is a common question that I am asked and one that many HR professional are face with when an employee does not want an investigation into a complaint that they have made to you.

Remember people change their minds, people listen to other people and have their minds changed

In some circumstances, an employee may raise a workplace issue with their employer or make an “informal” complaint but does not wish for any formal action to be taken, as was the case in Swan v Monash Law Book Co-operative (Swan v Monash).

Remember that it is the responsibility (duty of care) of the employer to protect its employees against unlawful behaviour and conduct in the workplace.

As a result, sometimes irrespective of an employee’s views on how their workplace issue should be managed, once an employer or HR professional becomes aware of an issue, it is imperative that the employer considers the potential risks arising from the complaint, and makes an assessment about the extent to which the issue should be investigated and the process for doing so.

Time for a shift in thinking

Think about it this way, once an employee has made a complaint the ownership of that complaint now rests with the HR professional or manager who received the complaint. What happens with or to the complaint will rest with you as will the consequences of not doing anything.

The case of Swan v Legibook – Supreme Court of Victoria – 26 June 2013 illustrates what can happen and can result in a breach of duty of care due to a failure to investigate a bullying complaint.

The applicant made complaints of workplace bullying in 2003 (the informal complaint) and formal complaints in 2005, she left Legibook in 2007 had not worked since.

The employer in Swan v Monash failed to promptly act on the employee’s workplace bullying complaint because when the issue was first raised by the employee, the employee did not wish for any formal action to be taken.

This delay (and of course the underlying conduct complained of) ultimately resulted in the employer being ordered to pay damages to the employee for the severe psychological injuries that she suffered

The applicant claimed anxiety, depression, and other physical conditions, she was awarded $600,000.00

Lessons for employers;

  1. In matters of bullying, harassment, sexual harassment and discrimination you have to make a decision to investigate, consider the risks to the business, YOU own the complaint now.
    (If you are not sure contact me for a copy of the AWPTI Risk Assessment Chart and Complaint Analysis Chart.)
  2. If things hit the fan, the buck stops with YOU.
  3. Just like pass the parcel, when you are holding the complaint and the music stops if you haven’t done anything about it you may be out.
  4. Just because an employee says I don’t want anything done it doesn’t mean that they won’t change their mind.
  5. Ensure that your managers are aware of their duty of care to employees and understand the need to investigate complaint matters.
  6. Investigate complaints of this nature thoroughly and in a timely manner.
  7. If in doubt call an expert

Don’t be caught out, for assistance with complaint investigation contact us www.awpti.com.au/investigation  or training www.awpti.com.au/training

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

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.

 

 

 

Beware of vicarious liability

Employers have a duty of care to ensure that they take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness this includes taking reasonable steps to eliminate and/or respond to workplace bullying, harassment and sexual harassment. Failing to do so could mean that employers may be vicarious liability  for the bullying behaviours of an employee toward another employee.

vicarious liability as a result of a breach of  the duty of care can have serious consequences for employees and expensive consequences for employers.

The case of Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 illustrates a breach of duty of care in a workplace bullying matter. The Qld Court of Appeal found that an aged care facility had breached its non-delegable duty by failing to take steps to minimise the risk of a former employee developing a psychiatric illness due to managerial pressure.

A former employee of the nursing home claimed that she developed depression and anxiety as a result of her excessive workload and the conduct of her manager. She claimed that, from 2009 when the particular manager joined the facility, she was subject to offensive, intimidating and humiliating behaviour causing her to become withdrawn, preoccupied, worried and noticeably depressed within the workplace.

The former employee claimed damages for loss of earnings as a result of her inability to work due to her psychiatric illness.

Being overworked, of itself, would not have been sufficient to establish breach. However, the manager’s constant belittling, yelling, aggression and general disregard for the former employee, coupled with the excessive workload, was sufficient to amount to breach.

There was evidence to suggest that the manager (and therefore the facility) should have foreseen the former employee’s particular vulnerability and her risk of developing a psychiatric disorder. Awarded over $430,000.00 in damages

 

Lessons for employers:

  1. Ensure that your managers are aware of their duty of care to employees and understand the difference between management and bullying.
  2. Don’t ignore complaints or reasonably foreseeable situations
  3. Investigate complaints of this nature thoroughly and in a timely manner.
  4. If in doubt call an 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 a suitability qualified and experienced workplace investigator.

 

 

Some good reasons to ensure you investigate thoroughly

An examples of where a lack of investigation case was costly, this is why you should investigate thoroughly

When a complaint is made employers should investigate thoroughly in a professional and timely manner to ensure that they satisfy their duty of care especially when considering the termination of an employee.

The case of Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62 illustrates an example of an unfair dismissal and the consequences of a lack of a proper investigation

The applicant Mr Harley was employed as a Business Development Executive at Aristocrat Technologies Pty Ltd (Aristocrat).

He had resigned after receiving a show cause letter from Aristocrat who claimed that he was under performing on sales targets and that there had been complaints about him from customers.

The applicant brought an unfair dismissal claim, claiming that he had been forced to resign as a result of a course of bullying and harassment engaged in by Aristocrat’s State Manager.

Commissioner Deegan agreed that the applicant had been constructively dismissed and that the dismissal was unfair.

He found that he had performed as well, or better, than most of the other business development executives during a difficult financial period and that he had been treated badly by the State Manager.

Significantly, he was highly critical of Aristocrat for failing to respond to the applicant’s harassment claims made against the State manager prior to his dismissal. He found that the human resources manager was “either uninterested in investigating the complaints properly or had no idea how to conduct such an investigation”.

 

The applicant was awarded 6 months’ salary in lieu of reinstatement.

This case is a strong reminder to HR professionals and managers to deal with employee complaints seriously and to conduct thorough investigations into complaints.

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 a suitability qualified and experienced workplace investigator.

What the FWC said about outsourcing investigations in the workplace

The recent case at the Fair Work Commission of, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 has highlight the need for employers to consider engaging independent third parties and consider outsourcing investigations in the workplace 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 both 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 outsourcing investigations?

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.

 

Why do managers get complaints and what can be done to minimise the risk?

What is Reasonable Management Action, why do managers get complaints, as a manager or employer you can run the risk of having complaints made against you by virtue of your position and the decisions you make involving employees on a daily basis. As a HR professional you may have to deal with these complaints

The quarterly reports (2015 – 2016) for anti-bullying order applications made at the Fair Work Commission showed the following based on information provided by the applicant in the application;

Applications based on complaints of unreasonable behaviour by a manager or group of managers often as a result of Reasonable Management Action

January to March 2016 – 65% of total applications
October to December 2015 – 65% of total applications
July to September 2015 – 75% of total applications
April to June 2015 – 72% of total applications

Full details of the reports are here – https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports

 

Why is this so?

In my experience having investigated 100s of workplace complaints I have found that complaints against managers usually fall into three categories

  1. What the manager did
  2. How the manager did it
  3. What the manager didn’t do

 

Sounds very broad let me narrow it down.

 

  • What the manager did.

Managers make decisions and take actions that affect employees on a daily basis. Often decisions and actions the most common of which is providing feedback that is not positive and/or conducting performance management result in complaints of bullying or harassment.

 

The Fair Work Act s789FD (2) tell us;

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

This exclusion is comprised of three elements:

  • The behaviour must be management action
  • It must be reasonable for the management action to be taken, and
  • The management action must be carried out in a manner that is reasonable.

 

The challenge for managers is to ensure that their actions fulfill the three point criteria.

Be warned – If bullying and/or harassment is occurring you cannot call it a management action.

Assuming that bullying has not occurred and the complaint has resulted following some form of performance management when I investigate these types of matters I look at,

  • Is the action able to be justified?
  • Was the action warranted?
  • What was the reason or cause for the action to be taken in the first place?
  • Was the action carried out in a fair and reasonable manner?

 

I recommend that all managers, employers and HR professionals have a sound understanding of what is and what is not reasonable management action and how to implement management action in a reasonable manner.

  1. How the manager did it.

In many cases managers fulfil the what part of the criteria but fall down on the how.

Many managers do not like providing adverse feedback and/or conducting performance management meetings and as result it is conducted poorly and in many cases leads to a complaint.

Having a sound understanding of how to conduct performance management meetings and the associated process is essential.  Being aware of the concepts of procedural fairness and unfair dismissal is equally as essential and can save a lot of money in the long run.

      3. What the manager didn’t do.

Managers are often the first port of call for someone making a complaint; in addition they may be the person that becomes aware of employee misconduct.

It is important that managers deal with misconduct and/or receive the complaints in a proper manner and take some sort of action.

It is also important that managers deal with misconduct and/or handle complaints in a proper, timely and professional manner as the outcome may result in the termination of an employee.

When the termination of an employee is a possibility it is essential that correct procedure is followed, failing to do so can lead to the potentially costly legal action by that employee.

It must be noted that taking no action when a problem is apparent or a complaint is made can also lead to potentially high cost legal action involving claims of negligence and a breach of the duty of care to the employee/s involved.

Reasonable Management Action – What can you do?

To address these issues I have developed a training program for managers, employers and HR professionals called “Management Essentials”  http://awpti.com.au/backup/training/

It is a full day program that consists of;

  • Understanding reasonable management action
  • Performance management to avoid complaints.
  • Dealing with misconduct and complaint handling

Having effective training in place in these critical areas is essential and a means of ensuring you have taken all reasonable steps to satisfy your duty of care to both managers and employees.

If you are a manager who wants to understand these concepts and minimise to the risk of having complaints made against you or if you are a HR professional that wants to train your managers and also minimise to the risk of complaints against your organisation please contact me for more details or check out our workplace training page.

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.

Misconduct – getting the whole story part 1

This is an interesting article (linked) from an English news outlet relating to the Chelsea football club where the alleged victim of sexual harassment severely criticised the Football Association for failing to interview her in the course of its investigation – http://www.dailymercury.com.au/news/fa-feeling-heat-over-sex-abuse-inquiry/2795505/

It is not unheard of in workplaces that alleged victims of sexual harassment, bullying, discrimination or other forms of misconduct are not interviewed as part of the investigation process especially when the complaint is made by someone other than the victim.

In other cases where the victim makes a written, (these days mostly email) complaint it is also not uncommon for HR departments to conduct an enquiry/investigation based only on the written complaint without further interviewing of the victim/complainant.

In both cases this is a really bad idea – why?

As a manager or HR manager you have a duty of care. That duty of care in my opinion extends to ensuring complaints are fully and professionally investigated when there are allegations of behaviours that have the potential to cause the victim to suffer an illness or injury. In the case of bullying, harassment or sexual harassment the common illness or injuries are related to anxiety and depression.

Failure to conduct a thorough investigation can result further in complaints, litigation and falling foul of sections 31 – 33 of the Work Health and safety Act 2011, (worth a read if you are not familiar). http://www3.austlii.edu.au/au/legis/cth/consol_act/whasa2011218/

In the first case, second hand reports may contain only part of the information, only part of the complaint and only part of what has been going on. You cannot reasonably make a decision with only part of the evidence. Speaking to the complainant is the first part of getting the whole story.

In the second case, the written complaint is often filled with emotion and generalisations. The job of an experienced investigator and interviewer is to get to the heart of the issues, to find out what has been going on and find out exactly what the complaint is about – you know the old: Who What Where When and Why

Sounds easy? – it’s not.

Part 2 of this post will examine what you should do if the complaint is made by a person other than the victim.

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 you should seek advice from suitability qualified and experienced qualified workplace investigator.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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