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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

Employee Investigation

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

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

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

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

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

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

Time for a shift in thinking

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

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

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

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

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

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

Lessons for employers;

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

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

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

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

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator.

 

 

 

Some good reasons to ensure you investigate thoroughly

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

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

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

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

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

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

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

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

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

 

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

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

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from a suitability qualified and experienced workplace investigator.

 

Duty of care – Sexual harassment – 1.3 million reasons to get it right

Everyone in a workplace has a duty of care to ensure that they do all that is reasonable practicable to ensure the safety of all others in the work place, including reacting to complaints of sexual harassment.

Employers have a duty of care to ensure that they take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness this includes taking reasonable steps to eliminate and/or respond to workplace bullying, harassment and sexual harassment.

Business owners, employers and managers must ensure that they do all that they can to ensure that the duty of care is not breached as it can have serious consequences for employees and expensive consequences for employers.

Courts have found that workplace bullying, harassment and sexual harassment can lead to the development of psychological injuries such as anxiety, stress, depression, PTSD and in the worse cases lead to suicide.

The case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC illustrates 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.

Ms Kate Mathews was employed by Winslow Constructors, a large construction company specialising in civil engineering projects, as a labourer for two years. During her employment, Ms Mathews was subjected to repeated abuse, bullying and sexual harassment from Winslow employees and subcontractors.

Ms Mathews provided evidence that she endured daily sexual harassment, which included being shown pornographic material and being asked if she would do what she was being shown, being called a “spastic”, “bimbo” and “useless”, being repeatedly questioned over her sex life and having a colleague grab her hips and act out a sexual act on her.

Ms Mathews was unable to complain to her foreman as he was responsible for some of the offensive comments himself.

In July 2010 a colleague of Ms Mathews stated to her that he was “going to follow you home, rip your clothes off and rape you.” Following this comment, Ms Mathews was frightened and scared. She telephoned a person who she thought was responsible for Human Resources, with their comment being “come to my place… and we will have a drink and talk about it.”

Judge Forrest found that as a direct consequence of the bullying, abuse and harassment Ms Matthews was subjected to by employees and subcontractors of Winslow Constructors, she had suffered chronic and significant psychiatric injuries that have and will continue to diminish the quality of her life.

Judge Forrest awarded Ms Matthews $380,000 in general damages to compensate her for her psychiatric injuries and jaw injury, $283,942 for economic loss she suffered between 2010 and 2016 and $696,085 for her future loss of earning capacity until she reached retirement age of 65. The total damages awarded was $1,360,027.

 

Lessons for employers:

1.  Don’t ignore it

2. Don’t make it worse

3. Investigate thoroughly, it would have cost a lot less that 1.3 million.

4.   Ensure that your managers and HR professional are trained to deal with complaints.

5.   If in doubt call an expert

 

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from a suitability qualified and experienced workplace investigator.

 

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

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

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

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

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

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

 

Why is this so?

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

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

 

Sounds very broad let me narrow it down.

 

  • What the manager did.

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

 

The Fair Work Act s789FD (2) tell us;

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

This exclusion is comprised of three elements:

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

 

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

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

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

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

 

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

  1. How the manager did it.

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

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

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

      3. What the manager didn’t do.

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

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

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

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

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

Reasonable Management Action – What can you do?

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

It is a full day program that consists of;

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

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

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

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator.