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Email misuse dismissal fair

Email misuse dismissal fair – Email and misconduct – unfair dismissal case confirms the importance of trust and confidence

Where conduct is so poor that it destroys the trust and confidence essential in an employment relationship, the FWC will find that dismissal is not unfair.

The case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 serves as a warning about:

  • Sending an email to the wrong person.
  • Making disparaging or offensive comments in emails
  • Being careful when wording and sending emails.

Accidentally sending an email to the wrong person is not an uncommon event, especially if the recipient is the email is the target of comments best left unsaid or unfiltered thoughts.

Ms Sologinkin employee with a long and previously unblemished employment record did just that and it did not end well

Senior Deputy President Hamberger found against Ms Sologinkin’s unfair dismissal application. In considering the matter, the Commissioner affirmed the importance of trust and confidence in the employment relationship and that it can be destroyed by one act of sufficient gravity

The email

Ms Sologinkin worked for Cosmetic Suppliers since May 2000, as a junior sales representative then Team Leader and then State Sales Manager.  She had never been subject to any issues of misconduct.

On 9 November 2016, she sent an email described as “intemperate and inappropriate” to the Customer Services Team describing them as “totally incompetent”.

As set out in the judgment:

“On the same day, the applicant composed an email to a friend of hers who had commenced working as a contractor for the respondent.  In this email, she made a number of disparaging ‒ and, in at least one case, highly offensive ‒ comments about some of the clients her friend would be dealing with.  This included a reference to one of the clients’ ethnicity and national origin.  The email included the email addresses of the clients.”

As she had intended, the email was sent to her friend and colleague.  Unfortunately, it was also accidentally sent to the clients.  Once she became aware she had sent the email to the clients, she made attempts to retrieve it, her attempts failed.

Upon receiving the email, one of the named clients tried, without success, to contact the employee by telephone.  He then rang the sales director and subsequently sent an email about the matter which said there “needs to be a consequence to this stupidity, await your advice”. 

The following day the client stated that they would no longer deal with any company represented by Ms Sologinkin; adding to this, another disparaged client did the same.

The employer issued a letter to Ms Sologinkin requiring her to attend a disciplinary meeting on 14 November 2016.  The letter advised Ms Sologinkin that sending the email to the clients was highly inappropriate and a breach of the employer’s Code of Conduct and furthermore could amount to serious misconduct. That meeting did not occur as Ms Sologinkin was on work-related stress/sick leave and unfit for work until 18 November.

The employer requested a written response from Ms Sologinkin to the allegations in the letter by close of business 15 November 2016.  To this Ms Sologinkin responded with a detailed email that cited a number of matters, including that her reasons for the mistake include that she had not slept well before the day of the email. She further said she was distracted, having had two others emails open at the same time and was handling complaints about the customer service team’s inability to perform their duties.

She conceded she had found it difficult to cope with her role ‘for some time’ and had been receiving medical treatment for post-traumatic stress disorder since 2015.

In further background, the employee had been placed on an informal performance improvement plan due to failure to meet key performance indicators for sales, and poor time management, which she said was due to a lack of management support and organisational changes. By the end of 2015 her performance had improved and she was no longer on a plan.

The employer considered her explanation but decided to dismiss her, concluding that the seriousness of the conduct was such that the trust and confidence necessary in an employment relationship had been lost.

SDP Hamberger found in at least one case the employee made ‘highly offensive’ remarks. One remark included a reference to a client’s ethnicity and national origin. SDP Hamberger accepted that the email was sent by mistake but given she occupied a management position she must bear the ultimate responsibility for her actions. He found the company had a valid reason to terminate and had conducted a fair investigation into the matter

SDP Hamberger accepted that there was a valid reason for termination and that even though the employee had;

  • a lengthy period of service with the employer,
  • an unblemished employment record
  • was contrite,

Overall the gravity of this misconduct, coming from someone whose job was to “manage relations with key customers”, was such that dismissal was not harsh.

The Commissioner held:

“…whatever the explanation as to how it happened, the ultimate responsibility must be borne by the applicant.  The email not only had the potential to but clearly did in fact damage the respondent’s reputation and its relations with its clients.” 

Not all mistakes destroy trust and confidence

Termination of employment is never a step to be taken lightly by an employer.  A longstanding employee with an unblemished employment record will, in many circumstances, be able to successfully argue that a termination was harsh and that other disciplinary outcomes falling short of termination should have been actively considered and applied.

However, where conduct is so damaging to the business and the trust and confidence necessary in an employment relationship, the Commission will be more willing to find that dismissal was not unfair and an appropriate outcome.

Every unfair dismissal case turns on its facts; it is entirely possible that if the employee was not in a key sales role, where relationships with clients are pivotal, that the outcome may have been different.

It is also an important and timely reminder to be careful and double-check the recipients list of any email that is sent.  And the tone of the email – if in doubt don’t press send

Link to the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1838.htm

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/

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.

 

Anti-bullying laws disciplinary process

Anti-bullying laws disciplinary process – Anti-bullying laws might be used by employees facing a potentially adverse disciplinary process to delay or halt it.

Anti-bullying vs disciplinary process: Fair Work Commission asked to find the balance

A recent Fair Work Commission case demonstrated an inventive way in which the FWC’s anti-bullying jurisdiction can be used by employees facing disciplinary proceedings. It may have opened a can of worms for employers.

In Lynette Bayly [2017] FWC 1886, the FWC issued an interim order preventing her employer from taking any further actions to finalise an investigation into the conduct of an employee or to impose any disciplinary sanction on the employee arising from the investigation or to terminate the employment of the employee.

Ms Bayly had made a section 789FF “stop bullying” application to the Commission alleging she had been subject to bullying at work.  The alleged bullying included the investigation by the employer into her conduct.

Despite the application, the employer continued the investigation and, as part of that process, advised her that draft findings had been made. Ms Bayly was then stood down and directed to attend a meeting to give her response to the draft findings. The investigation would then be concluded and any disciplinary outcomes of the investigation determined.

Ms Bayly’s lawyers wrote to the employer indicating she was unfit for work for a period that extended beyond the date of the proposed meeting.  They sought agreement from the employer that it would not require her to provide a response, attend a meeting or impose any disciplinary sanction in relation of the allegations under investigation.  The employer declined, confirming its intention to proceed with the disciplinary process.

As a result Ms Bayly sought an interim order from the Commission preventing her employer from continuing with the investigation, or from taking any disciplinary action arising from it, pending the determination of the substantive bullying claim.  The interim order was sought under section 589(2) of the Fair Work Act which is in the following (simple) terms:

“The FWC may make an interim decision in relation to a matter before it.”

Can the interim order be made under these circumstances?

The employer opposed the interim order:

  • Ms Bayly had not provided a substantive response to the investigation;
  • the investigation was being conducted in a “reasonable manner”;
  • any interim order made by the Commission in the exercise of its anti-bullying jurisdiction must be directed towards preventing a worker from being bullied at work;
  • the draft findings of the investigation are adverse to Ms Bayly; and
  • if Ms Bayly were to be dismissed, she has other remedies available to her.

The employer claimed that the Commission was being asked to prospectively injunct the employer from dismissing the employee. As stated in the judgment,

 “That is, to essentially use the anti-bullying jurisdiction to step in and prevent a possible adverse action, without consideration as to whether that dismissal is justified.  The orders sought go beyond what would ordinarily be available in relation to an anti-bullying application and should not be made.”

It did not, however, say that the Commission had no power to make the order.

Commissioner Hampton started from the basis that he could only make an interim order if there is a serious issue to be tried and after determining where “the balance of convenience” lies. He then observed:

It also appears to me that the consideration of the prima facie case and the balance of convenience must be assessed having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.

In a matter such as this, I also consider that the nature of the remedy provisions of s. 789FF of the Act [the anti-bullying provisions] should inform the consideration of the request for interim orders and the nature of any discretion to be exercised.  However, the purpose of the interim orders, including to preserve the capacity to advance the substantive application in appropriate circumstances, must also be considered.”

Should the interim order be made?

The next issue was looking at the particular circumstances of this case. The Commission took into consideration:

  • claims made in the substantive anti-bullying application about the retrospectivity of the conduct allegations;
  • the fact preliminary adverse findings had been reached against Ms Bayly;
  • Ms Bayly’s medical condition;
  • concerns expressed about the employer’s process and stated intention to finalise the investigation and make a decision on disciplinary action which could include dismissal of employment.

Commissioner Hampton was satisfied

“… that the s. 789FC application [the anti-bullying provision] has prima facie merit and there is sufficient likelihood of success to justify the preservation of the status quo pending further consideration and determination of the substantive matter by the Commission.  The allegations made by [the employee], if ultimately supported by evidence, would be grounds to support a finding that there was reported unreasonable conduct whilst she was at work within the meaning of s. 789FD of the Act.  Adopting the same caveat, those circumstances would also suggest that a relevant risk to health and safety arose.” 

Interestingly, a key aspect of the anti-bullying jurisdiction ‒ that no orders can be made once the employment relationship is at an end (except in very limited circumstances) ‒ was identified as,

“…a significant factor directly relevant to the balance of convenience and the exercise of any discretion”.

Commissioner Hampton recognised that circumstances might change the balance of convenience, so the interim orders might need to be reviewed.

How does this affect future disciplinary proceedings?

This decision is an interesting and concerning development, one that should be watched carefully by employers. It may well be a warning of what is to come for employers undertaking investigations and disciplinary processes.

The interim order has effectively halted (for the time being) the employer’s disciplinary process. The likely next step is the resolution of the substantive bullying claim.

Does this mean employers and employees will be in a race to the court if there is a potentially adverse disciplinary process? Commissioner Hampton did have some general words of caution for employees (or their representatives):

“given the scheme of the Act, interim orders of the nature being considered here would not be issued lightly.  The direct intervention of the Commission at such an early stage of proceedings should be exercised with considerable caution.  Further, the mere indication that a disciplinary process was involved in the complaints of workplace bullying, without much more, is unlikely to trigger the balance of convenience for such action.  Of course, each application must be considered in its own right and circumstances. 

As [the employer] contended, the Commission should be alert as to the undesirability of permitting the anti-bullying jurisdiction to simply be used to circumvent reasonable disciplinary action and its consequences.  In this case, there are some particular circumstances that have justified the making of the interim order.”

Notwithstanding Commissioner Hampton’s words of caution, it would not be surprising to see many applications of this kind in the context of disciplinary proceedings.

To put themselves in the best position to defend such applications employers should;

  • ensure any investigation is conducted fairly and objectively and does not, in the way it is undertaken, of itself constitute bullying (ie. it is “reasonable management action carried out in a reasonable manner”);
  • Consider out-sourcing bullying investigations to suitably qualified and experienced investigators.
  • Be able to demonstrate adverse consequences if a disciplinary proceeding is delayed by the making of such an interim order (including impact on other staff in the organisation and the integrity and efficacy of disciplinary processes).

Australian Workplace Training and Investigation can assist with professional and timely investigations of workplace issues such a bullying, harassment, sexual harassment, discrimination and other areas of misconduct such as Code of Conduct breaches, IT and email misuse, theft and fraud, please contact us if you require assistance on 02 9674 4279 or enquiries@awpti.com.au

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

Anti-bullying laws disciplinary process

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 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.

Anti-bullying laws disciplinary process

Misconduct Investigations Sydney NSW

Misconduct Investigations Sydney NSW – workplace misconduct comes in many and varied forms, misconduct investigations can be complex requiring experience and expertise.

Common types of misconduct that are investigated are;

  • Inappropriate behaviour leading to complaints and grievances,
  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Breach of policy or Code of Conduct
  • Inappropriate use of IT or other resources
  • Misuse of social media
  • Misuse of IP and confidential information
  • Inappropriate behaviour at work functions (especially Christmas parties) and conferences
  • Fraud, embezzlement or theft.

Misconduct can range from serious to a less serious nature; it may be a number of incidents or a single act.

When investigating workplace sexual harassment 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 conducting misconduct 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 bullying, sexual harassment and sexual harassment investigations.

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

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

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

Workplace Investigations Sydney NSW

Workplace Investigations Sydney NSW – Workplace Investigations into complaints and grievances and other issues can be a difficult, time consuming and stressful for the parties concerned.

One of the most common difficulties encountered by HR departments, managers and business owners when conducting internal workplace investigations is that virtually everyone involved knows one another or are connected in some way in the business and at times will have competing agendas. Australian Workplace Training & Investigation can assist – www.awpti.com.au

When making a decision to conduct the investigation internally or to outsource it is wise for an employer to ask the following important questions:

  • Do we have someone with the necessary expertise and experience to conduct an investigation?
  • Do we have the time to undertake an investigation that could potentially take up to six weeks?

If the employer is going to conduct an internal investigation or inquiry does the person/s nominated have:

  • Solid experience 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 complaints such as misconduct, bullying, harassment, sexual harassment and discrimination?
  • Experience making finding and recommendations and writing reports that will withstand the scrutiny of an industrial commission, the Fair Work Commission or a court?

Other considerations;

  • Can we ensure;
    • Transparency
    • Independence
    • An absence of Bias
    • An absence of Conflicts of Interest
  • Will the parties involved object to having the matter investigated internally

It is smart business to let an expert handle the workplace investigations for you.

Australian Workplace Training & Investigation can provide investigation services to suit your individual needs and all services are tailored to work within your budget.

Outsourcing a workplace investigation service enables you to concentrate on your business and to allow experienced and qualified investigators handle what we refer to as the ‘dark side of HR’.

Typical area of investigations

  • Complaints and grievances,
  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Misconduct
  • Breach of policy or Code of Conduct
  • Inappropriate use of IT or other resources
  • Misuse of social media
  • Fraud or theft.

Investigation review

Where an internal investigation has been conducted we can provide support and review of:

  • Investigation process
  • Findings & recommendations
  • Final report
  • Procedural fairness

We can also assist in the provision of workplace training – http://awpti.com.au/training/

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

Workplace training national wide

www.awpti.com.au

Sexual Harassment Investigations Sydney NSW

Sexual Harassment Investigations Sydney NSW – Complaints of sexual harassment in the workplace are becoming more commonplace and it is recommended that employees respond in a timely and professional manner to avoid expensive legal action and payouts such as that in the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC details here

Sexual harassment is any unwanted or unwelcome sexual behaviour which makes a person feel offended or humiliated. It has nothing to do with mutual attraction or consensual behaviour.

Examples of sexual harassment can include but are not limited to:

  • 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

Sexual harassment can range from serious to a less serious nature; it may be a number of incidents or a single act.  Sexual harassment can be conducted by one person or a group of people, it may be verbal or nonverbal, and it may be subtle or openly hostile.

Sexual harassment does not have to be directed towards a person to be considered sexual harassment.  For example a sexually hostile working environment, where offensive jokes and taunts are part of the accepted culture is a form of sexual harassment.  A person working in such an environment has the right to complain, even if the conduct in question was not specifically targeted at them.

When investigating workplace sexual harassment 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 conducting sexual harassment 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 sexual harassment and sexual harassment investigations.

AWPTI provides professional  sexual harassment investigations in a timely manner within your budget

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

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

Harassment Investigations Sydney NSW

Harassment Investigations Sydney NSW – Like bullying Complaints of harassment in the workplace are commonplace and it is recommended that employees respond in a timely and professional manner.

is when someone is made to feel humiliated, offended or intimidated because of their race, colour, national or ethnic origin, sex, disability, sexual preference or some other characteristic specified under anti-discrimination or human rights legislation.

Harassment can range from serious to a less serious nature. It may be a number of incidents or a single act.  Harassment can be conducted by one person or a group of people. It may be verbal or nonverbal and it may be subtle or openly hostile.

Harassment does not have to be directed towards a person to be considered harassment.  For example a racially hostile working environment where offensive jokes and taunts are part of the accepted culture is a form of harassment.  A person working in such an environment has the right to complain, even if the conduct in question was not specifically targeted at them.

Examples of harassment in the workplace can include but are not limited to:

  • Offensive physical contact or coercive behaviour that is intended to be derogatory or intimidating
  • Making and/or circulating offensive or disparaging remarks to a staff member about their work or capacity for work, personal life, absences, or claims for compensation
  • Persistently or destructively criticising or undermining a staff member publicly or privately
  • Making or sending threatening, offensive or abusive telephone calls, messages, emails or via any other form of communication
  • Teasing or regularly making a staff member the victim of pranks
  • Starting, spreading or failing to stop gossip about a staff member
  • Deliberately excluding a staff member from workplace activities
  • Giving unwelcome gifts
  • Coercing a staff member to resign or transfer
  • Stalking within the workplace, to and from work or outside the workplace
  • Asking intrusive questions about someone’s appearance or personal life
  • Sending explicit or sexually suggestive emails

When investigating workplace harassment 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 conducting harassment 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 harassment and harassment investigations.

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

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

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

 

 

Bullying investigations Sydney

Bullying investigations Sydney – Complaints of bullying in the workplace are commonplace and it is recommended that employees respond in a timely and professional manner.

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

Workplace bullying can include:

  • Abusive, insulting or offensive language.
  • Behaviour or language that frightens, humiliates, belittles or degrades; including criticism that is delivered with yelling and screaming
  • Teasing or regularly making someone the brunt of practical jokes
  • Displaying material that is degrading or offending
  • Spreading gossip, rumours and innuendo of a malicious nature

Violence, assault and stalking are extreme forms of bullying that constitute criminal offences. Such behaviour should be reported directly to the police, examples include, but are not limited to:

  • Harmful or offensive initiation practices
  • Physical assault or unlawful threats

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

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

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

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

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

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

When investigating workplace bullying 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 conducting bullying investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

AWPTI provides professional investigations of bullying complaints in a timely manner within your budget

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

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

 

 

 

Busted – Myths workplace bullying

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

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

Myth: You can eliminate bullying in the workplace.

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

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

Myth: Having well written policies will stop workplace bullying.

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

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

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

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

 

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

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

 

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

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

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

 

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

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

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

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

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

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

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

 

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

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

What you need is;

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

 

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

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

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

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

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

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

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

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

Workplace complaint investigations Sydney – do it yourself or call an expert?

Workplace complaint investigations Sydney- You don’t have to be Sherlock Holmes to conduct a workplace investigation, however as a manager you may be the first port of call for someone making a complaint and it is important that you receive the complaint in a proper manner and take some sort of action, the types of action can include

  • Informal enquiries
  • Formal investigation
  • Dispute resolution

Before you take any action it is important to understand what the complaint is about and remember failure to take action could result in a breach of a duty of care and a claim of negligence.

As a manager if you have receive a serious complaint. You must decide whether or not to investigate.  While an investigation may be costly and time-consuming; it is likely the cost of NOT conducting one could be substantially greater.

If you dismiss or take disciplinary action against an employee without having properly investigated the incident and establishing relevant facts; it is possible that the Fair Work Commission, Tribunals or Courts could find that the dismissal or disciplinary actions were harsh, unjust or unreasonable and remedies at law could be applied.

If an employer fails to investigate a workplace complaint/incident the following may result:

  • The potential for action under the Work Health and Safety Act for any subsequent injury or illness suffered by the complainant.
  • An inability to defend a legal claim by an employee due to lack of evidence.
  • Being found vicariously liable for the actions of an employee (e.g. “reasonable steps” defence).
  • May give rise to potential penalties under the new Fair Work Act amendments – eg: the commission will be required to take into account what actions the employer took in response to original complaint.
  • Being unable to show circumstances of mitigation to a court or tribunal in response to a legal claim.
  • Failing to meet relevant duty of care to employees.
  • Being subjected to adverse and/or damaging publicity.
  • The loss of, or inability to attract, good employees – creates a poor work culture, (i.e. perception of employer incompetence).
  • Engage and expert or ‘do it yourself’?

Workplace complaint investigations – important considerations

Do we have someone with the necessary expertise and experience to conduct an investigation?

Do we have the time to undertake an investigation which could take between four to six weeks?

If the employer is going to conduct an internal investigation or enquiry does the person/s nominated:

  • Have solid experience conducting investigations?
  • Have solid experience conducting investigative interviews?
  • Have a full understanding of the rules of evidence?
  • Have an understanding of procedural fairness?
  • Have an understanding of current legislation as it relates to workplace complaints such as misconduct, bullying, harassment, sexual harassment and discrimination?
  • Have experience making finding and recommendations and writing reports that will withstand the scrutiny of an industrial commission, the  Fair Work Commission or a court.

A common sense rule is that if you are not sure about what to do or how to do it or if you can do it properly or if you have the time to do it, call an expert, get some advice, the peace of mind that comes from having a professional investigator handle the issues for you is…….Priceless, really its elementary!

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

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

workplace complaint investigation Sydney