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Exit interview – complaints of bullying,
harassment and sexual harassment

 

An employee tells you during an exit interview that they were bullied, harassed or sexually harassed and that is the reason they are leaving the company, they name the alleged perpetrator but refuse to provide details as they are leaving and say that they want to put the bad experience behind them

What can or should you do?

This is a difficult situation to be faced as a HR professional or manager when conducting an exit interview

Your choice could be;

Do nothing, after all you have no details and no evidence. But remember, the easy way out could come back and bite you later.

Start an investigation, but where to start, if you speak to the alleged perpetrator how will you respond when they ask the usually, what exactly is it claimed that I did, when did this happen.

To conduct an effective investigation you will need to establish lines of enquiry;
• What happened – full details including what was said
• When and where
• Are there any witnesses
• Is there any other evidence

Without further details it is very difficult to conduct an effective investigation, remember you can’t set up a desk in the corner with a sign that reads ‘complain about Mr X here’

Keep records, you may be able to follow up on some information in an informal manner

If you don’t have one establish reporting mechanism for matters of misconduct, bullying, harassment, sexual harassment etc, this will encourage employees to have faith in the process that if they make a complaint it will be addressed.

Ensure that complaints are dealt with in a confidential, timely and professional manner, this will further encourage employees to have faith in the process
Conduct training with purpose;

  • Clearly outline employees behavioural expectations and responsibilities
  • Clearly define what is bullying, harassment, sexual harassment etc and how it will be dealt with by the company
  • Reinforce that the company has a reporting and investigation mechanism to deal with complaints in a confidential, timely and professional manner
  • Provide guidance for employees who feel that they are being bullied, harassed or sexually harassed

If you do not have effective training and investigation processes in place please contact AWPTI so that we can assist you.

AWPTI – workplace investigations in 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/

enquiries@awpti.com.au

 

 Addressing Workplace Bullying

Addressing Workplace bullying, harassment and sexual harassment are common problems faced by many employers and organisations. If not addressed the behaviour of a few can lead the detriment of others and to a large and potentially costly headache for the business.

In recent times there have been a number of very costly judgements being awarded against employers for breaching their duty of care to employees who were the victims of bullying, harassment and sexual harassment in the workplace.

Addressing workplace bullying, harassment and sexual harassment is not a simple fix, however there are things you can and should do.

Here is a four step method to;

  1. Take reasonable stops to respond to and reduce workplace bullying, harassment and sexual harassment in the workplace.
  2. Cover the business if complaints are made
  3. Promote an inclusive workplace culture
  4. Be seen as an employer of choice

Step 1

Have well written and up to date policies and procedures in place.

Be warned however, bullies and harassers ignore policies, but policies are the law in your company and a breach may be grounds for dismissal. If you don’t have the laws in place, bullies and harassers can behave with impunity.

If you don’t have up to date policies in place we can help – http://awpti.com.au/backup/hr-support/

Step 2

Have training in place designed to clearly outline your policies and the behavioural expectations the company has of its employees.

Again be warned, bullies and harassers ignore training, but if they breach a policy they cannot say “I wasn’t told.” If they are recorded and having undertaken the training, especially with face to face training, where they can’t use excuses like ‘the system was down’, or ‘I missed that bit’.

Good training must include the definitions of what is and what is not bullying, harassment and sexual harassment in the workplace and include the sanctions for breaching policy and being a bully or harasser.

If you don’t have effective workplace training in place we can help – http://awpti.com.au/backup/training/

Step 3

Have a robust and impartial investigation process in place. Make sure that if employees breach policy or act in a bullying, harassing and sexual harassing manner they will be dealt with.

Often engaging an external and professional investigator will send the message that you are not mucking around.

Step 4

Follow up on substantiated findings of bullying, harassment and sexual harassment with decisive action, it may be another case of sending a message that bullying, harassment and sexual harassment will not be tolerated and will be dealt with.

A note of caution;

You must ensure that all investigations are carried out in the professional manner affording the alleged perpetrator procedural fairness including;

  • The right to know the allegations made against them
  • The right to be hard and have their version of events taken into consideration
  • The right to a final determination based on the evidence
  • The right to an unbiased decision maker.
  • The right to a support person during interviews and meetings

Other considerations are;

  • The investigation methodology
  • The rules of evidence
  • Timing of the investigation (including how long it took)

Organisations should not fear taking decisive disciplinary action if they follow correct procedure.

When it comes to conducting a full, professional, timely and cost effective workplace investigation we can help

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/

For more information:

www.awpti.com.auenquiries@awpti.com.au  or 02 9674 4279

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.

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.

 Recently at the FWC – Anti Bullying matter

Anti Bullying order.

Purcell v Ms Mary Farah and Mercy Education Ltd t/a St Aloysius College

Read decision [2016] FWC 2308.

This application for an anti bullying order was made by a teacher who was also the OH&S representative at the school.

The applicant alleged that she had been bullied at work by the Principal of the College. The Principal was appointed in 2013 with a mandate from the Board of Mercy Education to effect change and arrest declining enrolment; however some staff were resistant to the change and preferred the status quo.

The applicant gave evidence that she became increasingly concerned about Mercy Education’s bullying policy and in May 2013 raised the issue of bullying and the need to update the policy.

The College’s Business Manager agreed to review the bullying policy by the end of the year however this did not eventuate; the applicant raised the issue again in April 2014. The Deputy Principal was listed in the bullying policy as the complaints officer however there was no Deputy Principal at the College, as the previous Deputy Principal had resigned in 2013 after the Principal had been appointed.

The bullying policy was finally revised and re-issued in 2015 after the applicant filed complaints in December 2014. The applicant identified a number of incidents occurring from late 2013, and continuing after her return from long service leave in mid-2015, which she maintained was repeated unreasonable behaviour by the Principal.

The Commission concluded that four of the incidents which the applicant complained about, taken together, amounted to repeated unreasonable behaviour. The Commission found that the conduct was likely to have caused the applicant distress and that the behaviour created a risk to the health and safety of the applicant. The Commission found that the applicant was bullied at work.

Lessons for employers:

  1. Ensure your policies are up to date and compliant, if you don’t have the time or expertise, get help – see www.awpti.com.au/hr-support/
  2. Investigate complaints about bullying in a timely and professional manner, if you are not sure what to do, call an expert – www.awpti.com.au/investigations/

The Commission considered what orders (if any) should be made, finding the relationship between the applicant and the Principal was an mutually tense the Commission held that interpersonal relationship disputes are best resolved through the efforts of the parties, and perhaps assisted by some form of .facilitation, dispute resolution intervention or mediation.

The Commission held that some form of reconciliation was much more likely to produce a lasting, positive improvement in the working relationship between the parties than any order could.

The Commission proposed that the parties engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship, and engaging in a dialogue that would accommodate an ongoing professional working relationship, and a safe working environment. If the parties were unwilling to engage with each other, then the Commission advised that either party could request the expeditious hearing and determination of the question of whether orders should be made.

Lessons for employers and employees

  1. In some cases a dispute resolution invention might better option to deal with complaints than an investigation especially in matters of a she said, he said nature with little of no other evidence. Each matter must be assessed on it merits.
  2. Investigations tend to have winners and losers, a dispute resolution intervention has the potential to create a win win situation.
  3. A a dispute resolution intervention can also be a more cost and time effective solution.

If you have received a complaint and are not sure what to do, go to the Australian Workplace Training & Investigation home page www.awpti.com.au and request our Compliant Analysis Chart. The chart will assist you in deciding the best course of action to take when you have received a complaint.

AWPTI can also assist you with dispute resolution interventions – www.awpti.com.au/disputes/

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 AWPTI – enquiries@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.

 

 

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.

Misconduct – getting the whole story part 3

Misconduct – getting the whole story part 3. Following on from part 1 and part 2, in this case you have received a complaint of sexual harassment, bullying, discrimination or other misconduct from a victim in writing or via email – what should you do?

Written complaints are often filled with emotion and generalisations. The job of an experienced investigator and interviewer is to get to the heart of the issues, to find out what has been going on and find out exactly what the complaint is about.

It is not uncommon for written complaints to have been written over a period of time and to be lengthy.

It is important during the interview to find out what the victim meant when they used words like bullying, intimidated, humiliated, harassment, threatened etc. I have read complaints that used words like blackmailed and extorted. When I interview the complainant the behaviour alleged was not actually consistent with those words. I have also reviewed complaints from respondents who identified that the words used in an allegation framed only using the written complaint did not match the behaviour actually alleged. This trap should be avoided as it has the potential to derail the investigation.

It is very important that any allegation put to a respondent matches the behaviour alleged in a complaint. For example if a victim said that the perpetrator yelled and threatened them in front of other employees when they said “I am sick of having to tell you over and over how to do this, you’re useless, just get it right will you.”

This may be classed as humiliating or belittling, however it is not threatening even if the victim claimed that is was threatened. The job of the investigator/interviewer is to get full details and to be able to determine the nature of the complaint.

The conversation could go like this

Interviewer – “You said in your email that he threatened you, can you tell me about that?”

Victim- “ Yes he said, I am sick of having to tell you over and over how to do this, you’re useless, just get it right will you.”

Interviewer – “Did he say anything else?”

Victim – “No that’s all.”

This may be  a case of humiliating or belittling behaviour, however it is not threatening. If the complainant was not interviewed you may be proceeding to make allegations against the respondent based on the complainant’s understanding of what certain terms such as bullying actually mean.

When interviewing the complainant:

Obtain details and record;

  • What happened – in as much detail as possible (events?)
  • Who was the perpetrator – name, role/position?
  • What were said – exact words if possible?
  • When it happened – in as much detail as possible, time, date, day etc
  • How the perpetrator behaved
  • What they meant by word like bullying, intimidated, humiliated etc
  • How the victim responded
  • Was anyone else there – additional witnesses, who?
  • What they did – did they have any conversation with the perpetrator or witnesses?
  • Explain the need for confidentiality

Review the information from person/s reporting to see what other information you need to fill in the gaps and who else other than the alleged victim you made need to interview.

Interview witnesses – be careful not to give the witnesses too much information or lead evidence form them but you need to clearly establish;

  • Who was the victim?
  • Who was the perpetrator – name, role/position?
  • What they saw
  • What they heard – exact words if possible
  • When it happened – in as much detail as possible, time, date, day etc
  • Was anyone else there – additional witnesses, who?
  • What they did – did they have any conversation with the victim, perpetrator or witnesses
  • Explain the need for confidentiality

By now you should be in full possession of the facts from the position of the victim and witnesses.

As I previously mentioned this is a time consuming and often difficult process. It is wise that prior to starting you decide, do we have the time, do we have the expertise and experience or would be it be better from a time and cost saving perspective to have a professional come in and take the stress away?

Part 4 of this post will examine the next steps and what you should do before interviewing the respondent to ensure procedural fairness.

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

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

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

Misconduct – getting the whole story part 2

Misconduct – getting the whole story part 2. Following on from part 1 – In this case you have received a complaint of sexual harassment, bullying, discrimination or other misconduct from a person other than the victim – what should you do?

Thoroughly interview the person providing the information. Record as much detail as possible.

1. Who was the victim?
2. Who was the perpetrator – name, role/position?
3. What they saw
4. What they heard – exact words if possible
5. When it happened – in as much detail as possible, time, date, day etc
6. Was anyone else there – additional witnesses, who?
7. What they did – did they have any conversation with the victim, perpetrator or witnesses?
8. Explain the need for confidentiality

Review the information from the person reporting to see what other information you need to fill in the gaps and who else other than the alleged victim you may need to interview

At this time you can choose to speak to witnesses. Be careful not to give the witnesses too much information or lead evidence from them.

After establishing that they were or may have been present at the time ask open questions like “last Monday do you recall anything unusual happening in the hallway on the fourth floor at around 11am?”

Repeat 1- 8 above for all witnesses

Speak with the alleged victim, advise the victim that you have a duty of care to investigate the matter.

Interview the victim to obtain and record full details of the incident/s, see above 1 – 8

By now you should be in full possession of the facts from the position of the victim and witnesses.

Of course this is a time consuming and often difficult process. It is wise that prior to starting you decide, do we have the time, do we have the expertise and experience or would be rather have a professional come in and take the stress away?

Part 3 of this post will examine what you should do if the complaint is made the victim in writing or via email.

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

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

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

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