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Post employment restraints

Post employment restraints –  Employee not longer need to photocopy the client list or save it onto a USB in order to poach clients when leave, employees are now “connected” to business customers and key contacts via a number of social media channels.  Connections via platforms such as LinkedIn occur during the course of business, kin most cases with the knowledge and approval of the business.  LinkedIn and other social media platforms provide employee’s with a list of contacts and actual and potential clients.

Social media platforms also provide ex-employees with a powerful marketing tool.  An ex-employee remains in contact with clients more readily and with more immediacy than in the past.  An ex-employee’s active use of social media it may be argues makes it more difficult for an employer to sever or restrict the relationships that have been built up between the former employee and the client.

The use of social media was examined in the case of Tipto Pty Ltd v Yuen [2015] NSWSC 1086. This case involved an ex-employee advertising his new business on LinkedIn. A number of his connection where were clients of his ex-employer. In the lack of detailed evidence, the court drew the conclusion that the employee and his former employer’s clients ‘were simply connected’ on LinkedIn. No adverse inference could be drawn from mere connection.

The Court did not accept Tipto’s justification for a prohibition against mere contact without evidence of actual solicitation, it found that prohibiting mere contact could not be seen as reasonable to protect goodwill.  The Court found that there was a lack of evidence as to LinkedIn and its impact on relationships with clients and that Mr Yuen and his former employer’s clients merely “were connected” on LinkedIn and no adverse inference could be drawn from mere connection.

While it is arguable that a LinkedIn profile update is no different to a general advertisement or announcement, and therefore does not amount to a solicitation, if a former client contacts the ex-employee as a result of seeing his or her updated profile, the likelihood of a solicitation occurring increases.

Dealing with social media post-employment requires careful consideration and strategic thinking. Some suggestions have included requiring employees to disconnect with clients on termination.  Good in theory, but what message does it send to clients and contacts who are disconnected, not knowing that your employee is departing?  Does this approach prevent the ex-employee re-connecting later?

Some more sensible approaches (aside from a well drafted restraint) may include:

  • requiring the employee to provide a copy of all their connections on LinkedIn to the business, so that the business is kept informed of important contacts for its business;
  • having a carefully crafted non-disparagement clause in the employment contract covering remarks on social media concerning the employer’s business, personnel and products post-employment;  and
  • requiring the employee to advise connections on LinkedIn of their departure in terms approved by the business, including requiring the employee during the notice period to advertise and promote the employer’s business and their replacement to all connections.

Smarter use of social media may enable a smooth transition of connections from the employee back to the business.

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/

 

 

 

Sexual harassment myth busting

Sexual harassment myth busting in spite of a number of matters in courts and tribunals sexual harassment in the workplace continues to be an issue.

As a workplace investigator and trainer I come across many opinions, beliefs and myths about what is and what is not sexual harassment and where is the line drawn?

Some of the most common myths around sexual harassment

Myth: I can’t report sexual harassment as no one will believe me

Fact: In many cases sexual harassers are serial offenders, known as the office sleaze, the person to keep away from. Many people especially young women are told early on “look out for him he’s a real sleaze” or similar.

Management and HR are in a much better position to take action if they have information to act upon.

The best way to help stop these people is take a stand, refuse to be the victim and report it HR or management. Not allowing yourself to be a victim is courageous and empowering.

Myth: As a HR professional or manager I can’t do anything about sexual harassment unless someone makes a complaint.

Fact: If you see it, hear about it, know about it or suspect that sexual harassment is occurring you should/must take some action.

You have a duty of care to ensure that all reasonable steps are taken to prevent sexual harassment in the workplace. Don’t make excuses, they may come back to bite you.

Myth: It’s not sexual harassment if “I didn’t mean anything by it” or “I was only joking

Fact: Most, if not all harasses are well aware of what they are doing, do not accept this excuse, especially if the harasser has been told that the behaviour or comment are not acceptable or has been told to stop.

Myth: If I ask a co-worker out on a date she/he can claim that it is sexual harassment

Fact: It is not sexual harassment to ask a co-worker out on a date; HOWEVER if you are asking a co-worker out on a date after being previously refused, ignored or not receiving a definitive answer YES – it can be sexual harassment.

Myth: If I have already dated a co-worker she/he cannot claim that it is sexual harassment if I keep asking them out.

Fact:  Once again it may not be sexual harassment if they consent but it is sexual harassment if they decline further dates, no matter how many you have been on.

Just because they went out with you once, twice or many times does not mean they do not have the right for future refusal.

Myth: It is not sexual harassment if they don’t really say ‘no’ when I keep asking them out or making those sort of suggestions.

Fact: Often the recipient of the request may feel awkward in saying no and may change the subject or avoid answering the question or say something like “I don’t know if I’m free, I’ll get back to you.”

If there is a power imbalance, for example manager and direct report, or manager and other staff member again the recipient of the request/s could be fearful that a direct refusal may harm their career or position in the company.

The golden rule is if they don’t say a clear absolute unambiguous YES then it’s a NO.

Myth: It is not sexual harassment if I am only texting.

Fact: Sexually harassing someone via text, Facebook or any other social media or carriage is still sexual harassment.

Myth: It is not necessarily sexual harassment for a boss or manager to ask a co-worker out on a date.

Fact: It’s not, but using your power or seniority to coerce a co-worker into going out with you – bit of no brainer there, YES of course it is (You would be amazed that the complaints of that nature I have investigated).

Myth: Making a comment about how someone looks is not sexual harassment

Fact:  Commenting   “You look nice today” in a neutral friendly manner, is not sexual harassment.

Commenting   “You look nice today” in a leering looking up and down suggestive or sleazy manner – YES that is sexual harassment.

Myth: I am a tactile person so touching is not sexual harassment

Fact: Seriously, (and yes I have heard that excuse) here is a simple rule, respect other people’s personal space,  don’t do it, don’t touch unless clearly invited to do so.

Myth: Sending or giving a co-worker gifts or tokens of your affection is not sexual harassment

Fact: I have dealt with many complaints where this happens after an initial indication that the attention is unwelcome.

In this case YES this can be construed as sexual harassment.  Remember unless it is a definite YES then assume it’s a NO. In this case persistence is not a virtue

Myth: In the past we have had mutually acceptable sexual conversations and/or a consensual sexual relationship so wanting to continue is not sexual harassment

Fact: These are examples of behaviour that is not generally regarded sexual harassment due to the consensual nature.

HOWEVER should one party decide not to continue the relationship or conversational banter, when the other party is made aware of this should they desist immediately as continuing past this point may constitute sexual harassment.

Myth: I really don’t know what is classed as sexual harassment.

Fact: Here are some examples of sexual harassment that might be helpful to assist in understanding:

  • Staring, leering or unwelcome touching
  • Suggestive comments or jokes
  • Coercive behaviour that is intended to be sexual in nature
  • Sending sexually explicit emails or text messages
  • Repeated unwanted requests to go out on dates
  • Intrusive questions about a person’s private life
  • Requests for sex
  • Displaying posters, magazines or screen savers of a sexual nature
  • Inappropriate advances on social networking sites
  • Accessing sexually explicit internet sites
  • Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications

 Myth: As a business or employer sexual harassment is a matter between the two parties, it’s not a workplace issue.

Fact: Ponder these court cases that clearly illustrate the effects of sexual harassment in the workplace on businesses and employers:

Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues. Link to case

Collins v Smith (Human Rights)[2015] VCAT awarded more than $330,000 as compensation to Ms Collins, an employee who had been repeatedly sexually harassed by her employer, Mr Smith, the owner and manager of the Geelong West Licensed Post Office. Link to case

Tan v Xenos (No 3) [2008] VCAT 584 – a sexual harassment case where Ms Tan was awarded general damages of $100,000. Link to case

Poniatowska v Hickinbotham [2009] FCA 680, a sexual harassment case where the complainant was awarded $90,000 general damages in a total award of $466,000. Link to case

Ewin v Vergara (No 3) [2013] FCA 1311 – a sexual harassment case where Ms Ewin was awarded $110,000 in general damages and $293,000 for loss of past earning capacity. Link to case

GLS v PLP [2013] VCAT 221 – a sexual harassment case where a general damages award of $100,000 was made Link to case

Richardson v Oracle [2014] FCAFC 82 – a sexual harassment case where Ms Richardson was awarded general damages of $100,000 in a total award of $130,000. Link to case

The best way to avoid confusion and to make sure you have complied with your responsibilities is to train your staff. The money you spend on training may save you in the long run, should things ever go wrong.

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me – http://awpti.com.au/employee-training/

If you receive a complaint and are unsure about the process it pays to call in an expert. Once again AWPTI can assist you in this regard – 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 sexual harassment, misconduct, bullying & harassment and other issues facing employers and workplaces.

If you would like to know about tailored training session for your employees and managers including the popular 60 – 90 minute lunch and learn sessions please contact me.

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/trainer 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

Sexual harassment myth busting

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/

Business protection

Business protection – put out the fire with the S.A.F.E method

When is comes to Business protection workplace complaints about misconduct including bullying, harassment, sexual harassment, discrimination, theft or fraud to name a few can be highly damaging to your business, your leaders, employees and your brand.

When these complaints occur most organisations go into a re-active mode often not knowing what to do. This means placing these complex and potentially damaging issues in the hands of someone they just found on Google.

Workplace complaints can end up in courts, tribunals, the AHRC or the FWC and can result in great expense including judgments against you, compensation, legal fees and of course damage to your brand.

You cannot stop workplace complaints, however you can use the S.A.F.E method to protect your business pro-actively and re-actively, here’s how.

Step 1
S
urvey your business and identify the areas that need development;

    • Do you have the policies in place
    • Are your staff trained
    • Do you have Investigation or dispute resolution options in place including having experienced people in place.

After completing your survey take action to fill in the gaps. If you don’t have experienced facilitators and investigators on staff it is highly recommended that you create relationships with people who you can call and who you trust and who will be responsive to your needs in a timely manner.

Step 2
A
ccess your alternatives internal or external for the;

    • Development of policies
    • Development and facilitation of training
    • Conduct of investigations or dispute resolution

Remember, if you are dealing with matter internally, do you have experienced and qualified people on staff who have the time to do the job?

Step 3
Formulate your strategy for dealing with complaints

    • Review complaints with the complaint analysis chart (This can be provided to you)
    • Decide – Internal or external
    • Allocate the resources

Step 4
E
xecute your strategy

Having a strategy in place can save a lot of time, money and stress. Having relationships in place ensures that you can relax and know that your issues are being handled by experienced and qualified professionals.

Or you could just Google it and hope for the best.

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/

 

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

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

Procedural Fairness – Workplace Investigation Procedural Fairness – Workplace Investigation – When conducting any misconduct workplace investigation, grievance investigation, performance management or any other disciplinary process it is vitally important that employers ensure that employees involved at afforded procedural fairness. Many unfair dismissal applications are successful at the Fair Work Commission due to the absence […]

Workplace Investigation

Workplace Investigation – what can you do with uncooperative parties during an investigation.

An issue that may be confronted during a workplace investigation is uncooperative parties, complainants, witnesses and the person subject of the complaint (generally referred to as the respondent).

Workplace Investigation – uncooperative respondents

It is important to be careful not to attribute blame or guilt when a person subject of a complaints or misconduct workplace investigation is uncooperative, you must keep an open mind.

Two crucial components of procedural fairness are:
(a) The respondent has the right to know the nature of the complaint or allegations made against them
(b) The respondent has the right to be heard (the right to respondent to the complaint or allegations made against them)

At times adhering to procedural fairness might mean having to be patient.

Generally responses from the person subject of a complaints or a misconduct workplace investigation will come either in written form or the participation in an interview.

Respondents may;

  • Refuse to respond
  • Delay the response providing various reasons why they have not responded
  • Continually ‘roadblock’ the investigation by being unavailable to be interviewed, cancelling interview appointments or not showing up.

What can employers do?

  • Set reasonable deadlines, but be patient and allow some latitude.
  • Listen and take account of the reasons for the cancellation of interviews or delayed responses
  • Re-schedule interview appointments when needed.
  • Work with the respondent, allow them time to prepare.

If the ‘stalling’ is without good reason and continues;

  • Set a final deadline, again be reasonable, (don’t rush the process) but remember that other people may be affected by the investigation and courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.
  • Advise the respondent that if they fail to respond or attend an interview by the deadline, the investigation will continue and that findings may be made on the information that you currently have on hand.

If the respondent continues to be uncooperative proceed with the investigation.

DOCUMENT EVERYTHING

Workplace Investigation – uncooperative complaints

Although less common than uncooperative respondents I have encountered situations where the complainant is uncooperative, this has been in cases where a written complaint has been made and then the complainant refuses to provide further information and/or be involved in the investigation.

This situation presents a number of problem, please refer to this article that reviews what to do when an employee does not want an investigation into their complaint? http://awpti.com.au/employee-investigation/

In this case I recommend that you proceed with the information you have and advise the complainant that the investigation will continue and that findings may be made on the information that you currently have on hand.

This can cause some difficulties in providing the person subject of the complaint with full details of the complaint or allegation, each case is different, please contact me for assistance phil@awpti.com.au

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Workplace Investigation – uncooperative witnesses

Unless you have something in your policy or Code of Conduct that compels employees (which I suggest would be rare) there is little you can do with uncooperative witnesses other than to discuss the reasons why they do not wish to cooperative and reassure them in relation to their concerns if you can.

Bottom line is generally you really can’t compel witness to be part of a workplace investigation.

Support people

Support people themselves are usually not uncooperative however 2 issues can arise usually from the perspective of the respondent;

(1) I can’t get a support person
(2) My support person is not available at…..

It is recommended that you are flexible and have some patience and understand that the support person may also need reasonable notice, however is it not reasonable to unduly hold up the investigation, it may be the case that the party will have to get a different support person.

As I previously stated it is important to remember that courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner and the Fair Work Commission will only take into account unreasonable refusal to allow for a support person.

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/

 

 

Discrimination Investigation Sydney 

Discrimination Investigation Sydney – Discrimination is any behaviour, practice or omission that makes distinctions between individuals or groups, so as to disadvantage some and advantage others.

Discrimination is unlawful on the grounds of:

  • Age
  • Carers’ responsibilities
  • Disability – physical or intellectual disability, HIV/AIDS
  • Gender
  • Irrelevant criminal record
  • Marital status, including occupation of spouse or partner
  • Parental status and carer/family responsibilities
  • Physical appearance
  • Political conviction
  • Pregnancy or potential pregnancy
  • Race, nationality or ethnic origin
  • Religious belief
  • Sexuality or sexual orientation
  • Social origin
  • Trade union activity
  • Transgender

Unlawful discrimination can take two forms:

1) Direct

2) Indirect

Direct discrimination

Is any action that excludes a person or a group because of an irrelevant personal characteristic, for example, an individual is treated less favourably on the basis of an attribute that the person may possess, such as race or disability.  Direct discrimination can include:

  • Not giving someone a promotion because of their gender
  • Forcing an employee to retire at 60 years of age
  • Employment advertising that has requirements, such as minimum age, which is not critical to the job

 Indirect discrimination

Occurs where a condition, requirement or rule is imposed, which on the surface is neutral or equal, but in fact operates in a way that discriminates against particular groups that have some characteristic in common (such as gender or national origin).  For example:

  • An advert that requires candidates to be 180cm tall for a certain job may be indirectly discriminating against most women
  • A requirement that everybody has to wear a company cap could be indirect discrimination on the grounds of religion. This is because members of some religions are required, as part of their faith to cover their head with particular headwear and wearing a cap would not be appropriate. This does not apply to appropriate and necessary safety wear
  • Removing the flexibility in start and finish times may discriminate against parents who are required to pick up children from school

Discrimination does not include

  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under a dispute resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

When investigating workplace discrimination it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conductingdiscrimination investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about discrimination investigations.

AWPTI provides professional discrimination investigations in a timely manner within your budget

AWPTI – workplace investigations 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

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