Workplace bullying investigation

Can a performance management or disciplinary process be conducted concurrently with a bullying investigation?

Workplace bullying investigation – One of the most common issues arising from a performance management or a disciplinary process is a complaint of bullying or harassment made by the person subject of the process. The complaint can either be in relation to the person conducting the process, or another person, often a manager.

Complaints of bullying or harassment may occur as a result of the process itself (people don’t like being told that their performance or behaviour is not up to the expected level) or beforehand if an employee senses that their performance or behaviour is unsatisfactory and their position may be on the line.

In either circumstance, employers are not automatically restricted from proceeding with both processes concurrently. There is no specific requirement at law which requires the suspension of the performance management process. However each situation should be assess on its merits, don’t make things harder for yourself if they don’t have to be.

It may be operationally vital that the disciplinary process is undertaken and finalised expediently (for instance, where an employer’s policy requires it), however in most cases I recommend pausing the performance management process while the investigation is being conducted.

When assessing whether it is appropriate to continue both processes concurrently, employers are encouraged to first consider whether the claim of bullying could be related to, or adversely affect the legitimacy of, the disciplinary process.

It is not uncommon however that the performance management or disciplinary process is put on hold until the complaint of bullying or harassment is investigated.

How should HR proceed while handling these two processes?

I recommend that employers wishing to proceed with both processes concurrently should ensure that the following steps are taken:

  • The processes are kept separate and distinct. It is essential that the persons involved in the disciplinary process are not also involved in investigating the complaint.
  • Where HR cannot facilitate this, or where the complaint involves senior management, employers should consider engaging an external expert to investigate the complaint.
  • The investigation of the complaint of bullying or harassment is conducted in a timely and professional manner. Once again it is worth considering engaging an external expert to investigate the complaint.
  • Ensure that internal policies and procedures are followed, make sure your policy allow you to conduct the processes concurrently.
  • Have a clearly and defined process for investigating the complaint in place.
  • If the performance management or disciplinary process are to be conducted concurrently the person that is or was conducting the performance management should not be involved in the investigation.
  • Keep clear and comprehensive documented evidence of the decision-making process.

In addition to further bullying claims, employers also risk a claim under the general protections provisions where disciplinary action has been taken following a complaint of bullying.

If in doubt or you don’t have any of the following; time, experience, expertise or Confidence, Call an expert, the saving in stress will outweigh the cost – AWPTI can assist details here

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.

If I can assist you, please contact me on 02 9674 4279 or via my LinkedIn profile.

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

Workplace Investigations – Mental health: The invisible challenge for business

Workplace Investigations Mental health – An important part of workplace investigations or performance management discussions is to allow the subject to respond to the issues and to listen, you never know what is going on in their life.

The pressures of daily life, financial stress, job insecurity and personal challenges create situations that flow into the workplace and can affect workplace investigations.

The costs of mental ill-health
In Australia, the cost of mental ill-health is said to be approximately $60 billion per annum. That’s roughly $4,000 per taxpayer. Putting aside the human cost, mental ill-health clearly has an economic impact on the growth of the Australian economy. This means it affects businesses, both directly and indirectly.
Managing what you can’t see
Mental health can be difficult for employers to understand. You can’t see the physical injury, so how do you know it exists? And while factors from outside the workplace play a significant role in creating mental health issues, the contributing factor of stress within the workplace can’t be ignored.

The impact of failing to manage mental ill-health in the workplace can include:

  • the loss of good employees
  • workers compensation claims
  • increased sick leave
  • high turnover of staff, and
  • bullying and harassment claims.

Trying to work out what causes mental ill-health in employees is difficult. It is an ‘invisible’ challenge for employers and one that requires a proactive approach for success.

Approaching with suspicion and looking to disprove an individual’s mental ill-health can have negative results for all involved.

Whether the individual is suffering mental ill-health from conditions like bi-polar disorder or schizophrenia, depression, anxiety or stress, they are all manageable conditions that employees (and other members of the Australian public) live with every day.

If a claim arises, having the right support and policies in place is a better strategy than trying to prove the case against the employee.

Implementing a mental health plan in your workplace
With regulatory intervention likely in the near future, 2018 is the year that all businesses need to implement a mental health program in the workplace.

Our top five tips for developing a mental health plan are:

  1. Let go of unhelpful incidents of suspicion against employees claiming mental ill-health. In the absence of reasonable evidence to the contrary, give employees the benefit of the doubt.
  2. Provide managers and supervisors with training about mental ill-health.
  3. Treat employees with mental ill-health as you would any injured employee, by allowing them to take time off to recover from an injury and to seek a safe return to work.
  4. Ensure that employees feel supported and that their mental ill-health circumstances will be kept confidential (where possible).
  5. Provide access to external support (like Employee Assistance Programs and other counselling).
Benefits of a workplace mental health plan
If businesses can implement an effective mental health plan in the workplace in 2018, they will enjoy a range of tangible benefits over the medium term, including:
  • cultural improvements
  • increased productivity
  • fewer workers compensation claims
  • reduced sick leave, and
  • minimised legal liability.

Not only will you contribute to strengthening the Australian economy, you will be on the front foot when regulations start to roll in.

Originally published at

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

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

Workplace Investigation Employers duty of care.

Workplace Investigation Employers duty of care – Do employers owe a duty of care to employees during a workplace investigation? This question will be examined this year in an appeal to the High Court. The decision could have significant and widespread implications for employers, employees and HR professionals when conducting a workplace investigation.

The High Court granted an employee special leave to appeal the decision in the case of Govier v The Uniting Church in Australia Property Trust. This decision concerned the liability of a disability services provider when one of its employees Ms Govier who was attacked by a colleague. Ms Govier required hospitalisation and claimed that she feared that she would die during the attack, she subsequently developed chronic post-traumatic stress disorder and depressive disorder.

Immediately after the Incident, Ms Govier telephoned her supervisor and advised him that she had been attacked by a colleague, that she had telephoned the police, and that she was going to hospital.

The employer immediately commenced an investigation on the same day preparing and delivering a letter to the Ms Govier’s home that required her to attend an investigative interview on the following day and directed her not to discuss the incident with any other person. The letter also outlined that Ms Govier was stood down on full pay pending the determination of the investigation. Ms Govier received the letter while she was still in hospital as a result of the Incident.

Ms Govier did not attend the interview, she provided her employer with a medical certificate that advised that she was unfit for work. Two weeks later, the employer wrote another letter to Ms Govier claiming that she had refused to attend the interview and that its preliminary finding was that she had engaged in violent and inappropriate behaviour against her colleague. Ms Govier was given five days to show cause as to why termination of her employment was not warranted. Ms Govier did not return to work and her employment was ultimately terminated.

Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier argued that the decision by her employer to issue the letters in connection with the workplace constituted a breach of a duty of care owed by the employer. Ms Govier was unsuccessful and appealed to the Queensland Court of Appeal . The QCA ultimately agreed with the District Court, finding that no damages were payable because the employer did not have a duty to avoid such harm in the course of investigating the incident. The QCA followed the authority of State of New South Wales v Paige. In that case, the NSW Court of Appeal found that the appellant did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to the respondent.

In the High Court, it will be alleged that the employer knew or ought to have known that sending the first letter immediately after the incident would aggravate Ms Govier’s psychiatric injuries. It will also be argued that Ms Govier’s injuries were reasonably foreseeable in the circumstances. The appeal seeks to clarify the application of the rule in Paige to workplace investigations in which the employer has control over the investigative process, as distinct from the facts in Paige where the issue turned on a disciplinary regime governed by statute.

The High Court is expected to hear the appeal early this year.

Workplace Investigation Employers duty of care – Lessons for employers

  • When conducting a workplace investigation it is important that employers and HR professionals act in professional and time appropriate manner.
  • Whether the High Court finds that employers owe a duty of care to employees during a workplace investigation or not it is wise for employers and HR professionals to take am approach that minimises the dangers of harm.

Workplace Investigation Employers duty of care – How can we help

AWPTI can provide workplace investigation training programs to help HR professionals to master the skills associated with the conduct of a workplace investigation – more details

Should you wish to conduct the investigation internally we provide and investigation review service or Investigation Peer Mentoring – More details

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

Some details of this article was originally published at

Sexual Harassment Investigation Sydney NSW/ACT

With the increasing publicity surrounding sexual harassment in Hollywood and the #MeToo campaign it may only a matter of time before there is an increase in the reporting of sexual harassment complaints in the workplace, is your organisation ready to deal with complaints?

Responding promptly and correctly is in the best interests of victims and the organisation.  For the organisation or business failing to deal with complaints can result in costly litigation, the loss of good staff, a toxic workplace culture, adverse publicity and damage to your brand image and reputation.

If you receive a complaint of sexual harassment it is vitally important that;

  1. You respond in a timely and professional manner with a thorough investigation of the complaint.
  2. Your response is fair and balanced taking into accounts the needs of all the parties.
  3. Your investigation is carried out in a professional manner taking into account the investigative procedure, procedural fairness, the rules of evidence and is legislatively compliant.

When you receive a complaint you have three choices;

  1. Conduct an internal investigation
  2. Engage an external investigator
  3. Do nothing and hope for the best (We DO NOT recommend option 3)

Sexual Harassment Investigation Sydney NSW/ACT  – Option 1 – Conducting an internal investigation

If you are going to choose this option make sure that the person conducting the investigation has the skill, experience and the time to conduct an investigation that is;

  • Fair
  • Thorough
  • Unbaised
  • Timely

It is important that your investigator understand the principals of procedural fairness, the rules of evidence and the investigation process.

An important part of your internal investigation is the documentation that will help to get the process right and ensure procedural fairness. AWPTI can assist you with our Investigation Document Toolbox and Procedural Fairness Manual.

We can also assist by training your HR professionals and managers in the investigation process –

Sexual Harassment Investigation Sydney NSW/ACT  – Option 1 – Engaging an external investigator

The biggest question when engaging an external investigator is, who do I call? 

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so when an external investigator is required 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, contact us for details

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. Investigative skill may be an issues especially when it comes to interviewing.

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 an applicable licence 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.

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

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 –

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 and via LinkedIn (if we are not connected, please feel free to send me a request).

Sexual Harassment Investigation Sydney NSW/ACT  – Option 3 – Do noting and hope for the best

DO NOT TAKE THIS OPTION. It will be damaging for all the parties involved especially the victim and could be very costly for your organisation

Sexual harassment may lead to litigation as a result of an action in negligence for personal injuries as it did in the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC where Ms Mathews was awarded 1.3 millions dollars in compensation

Sexual Harassment Investigation Sydney NSW/ACT

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

Unfair Dismissal Fair Work Commission Recently

The recent case of Amanda Olesen v Needlework Tours Pty Ltd illustrates some importance considerations for employers when dismissing employees

In this case, applicant Ms Olesen expressed an intention to start own business in meeting with respondent. Ms Olesen used social media and business networking sites to promote new business.  The respondent Needlework Tours stated that they believed applicant was working for new business during work hours.

The Commission found no evidence that suggested that applicant was operating own business or not working as directed and therefore found no valid reason for termination.  In evidence the applicant contented that her employment was terminated via text message and was not notified of reason until after termination and was also not given the opportunity to respond to reason for dismissal.

The Commission considered the Small Business Fair Dismissal Code and found that the fraud allegations were without substance, It also held that a lack of HR expertise and small size of business no excuse for failure to give applicant opportunity to respond

Commissioner Ryan held

“Having taken into account each of the matters referred to in paragraphs (a) to (g) of s.387 and being satisfied that there are no other relevant matters needing to be considered under s.387(h) the Commission decides that the dismissal of Ms Olesen from her employment with the Respondent was harsh and unjust and unreasonable. It was harsh because Ms Olesen had not engaged in the alleged misconduct. It was unjust because Ms Olesen was denied procedural fairness by Mr Laughlin and was given no opportunity to defend herself. It was unreasonable because it was the result of a significant exercise of prejudging an outcome without making any reasonable attempt to apply the principals of a fair go all round.”

Lesson for employers

  • In matters of fraud, potential fraud a careful investigation is recommended to ensure that the misconduct occurred and that the employer is in possession of sufficient evidence to support their claims.
  • Procedural fairness and the right to respond to allegations should be considered to be ‘set in stone’
  • A professional and timely investigation by an expert can save time, money and stress
  • If in doubt call an expert –

Unfair Dismissal Fair Work Commission Recently

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

Workplace Investigation Terminations Unfair dismissal

The recent decision of Jay Higgins Coles Supermarkets Australia Pty Ltd T/A Coles at the Fair Work Commission highlighted the importance for employers about being clear about the reason for the dismissal.

In this matter, Coles submitted that the explicit text messages sent by Mr Higgins resulted in a serious breach of the Code and Equal Opportunity Policy (EO Policy). Specifically, that by sending the explicit text messages to his supervisor Mr Lacey, Mr Higgins engaged in behaviour that was considered to be harassment due to its offensive and sexual nature. Coles submitted this resulted in a serious breach of his duty to treat everyone with dignity, courtesy and respect.

Mr Higgins submitted that when taking into account the context in which the text messages were sent, it could not be satisfied that he engaged in conduct amounting to sexual harassment towards Mr Lacey. Mr Higgins relied on the section of the Equal Opportunity Policy that states as follows:

“Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment, as long as the interaction is consensual, welcome or reciprocated.”

Mr Higgins submitted that he and Mr Lacey had a personal friendship outside of work, and that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours. Mr Higgins submitted he had sent messages of a similar nature to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins submitted that the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. Mr Higgins also submitted that Mr Lacey’s response to the first text message on 5 September encouraged him to send further text messages.

When the manager responded negatively to the image of a penis in a bike chain, Mr Higgins did not sent any further images.

As a result, the commissioner found the conduct did not fall within Coles’ definition of sexual harassment, which excluded behaviour based on friendship as long as it was “consensual, welcome or reciprocated”.

But he found sending such explicit images was “clearly conduct inconsistent with the requirement of the code to treat others with dignity, courtesy and respect”.

Together with Mr Higgins’ lack of contrition and aggressive comments to his supervisor after he was warned over the images, he concluded Coles had a valid reason for dismissal and found the dismissal was not unfair.

Commissioner Simpson held that “The fact that Mr Higgins refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles’ submission that it cannot reasonably hold confidence in Mr Higgins’ ability to comply with its core values. I am satisfied Mr Higgin’s misconduct was serious.”

In this case it was found that Coles had a valid reason for the dismissal other than the initially alleged sexual harassment. Had Cole gone alone with the sexual harassment allegation the outcome may have been different.

Lesson for employers

  • Be careful when investigating matters such as sexual harassment that the behaviour is consistent with the definition of sexual harassment.
  • Be careful that organisational policies reflect the accepted or legislated definition of misconduct, bullying, harassment and sexual harassment.
  • If you are unsure call in an expert –
  • Ensure that all employees undertake training in what is and what is not misconduct, bullying, harassment and sexual harassment –

Workplace Investigation Terminations Unfair dismissal

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