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Workplace Investigations – Mental health: The invisible challenge for business

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

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

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

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

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

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

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

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

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

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

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

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

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

Originally published at hramag.com
https://www.hcamag.com/hr-news/mental-health-the-invisible-challenge-for-business-247849.aspx

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/
http://awpti.com.au/training/

Workplace Investigation Employers duty of care.

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

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

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

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

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

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

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

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

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

Workplace Investigation Employers duty of care – Lessons for employers

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

Workplace Investigation Employers duty of care – How can we help

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

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

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

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

Some details of this article was originally published at Mondaq.com

Workplace Investigations – Do it yourself or call in an expert

Conducting workplace investigations into employee misconduct or complaints such as bullying, harassment or sexual harassment should be fairly straight forward and not beyond the skill set of managers or generalist HR professionals or is it?

Consider the case of Paulson v Industrial Relations Secretary (Department of Justice) heard at the NSW Industrial Relations Commission to final decision in July 2017.

The case involved 42 allegations of misconduct made against the applicant a NSW Sheriff’s Officer. The investigation found that 34 of the 42 allegations were substantiated and as a result the department made the decision to terminate applicant’s employment after giving him the opportunity to resign.

At the hearing, that lasted 3 days the IRC found that the majority of substantiated allegations were not proven on balance of probabilities and the proven allegations were not sufficiently serious to justify dismissal. It should be noted that the investigator was subjected to extensive cross examination during the hearing.

This matter involved an extensive and lengthy investigation the full copy of the report which, with annexures ran to 429 pages involved interviews with 11 witnesses and the respondent.

At any hearing whether it be at the IRC or Fair Work Commission the investigators findings, methodology and decisions made during the investigation  may be subject to examination by the tribunal.

In this matter the IRC found that the dismissal harsh however reinstatement and re-employment was impracticable, compensation of 13 weeks pay was ordered.

During the course of workplace investigations the analysis of evidence with a view to making findings as to whether or not any allegations are substantiated is a critical part of the investigation process and requires a comprehensive understanding of the concepts of the burden of proof and the balance of probabilities and the ability to back up your findings with the evidence and reasoning that will satisfy both.

A good investigator must be able to analyse the circumstances of the misconduct or complaint, gather all of the available evidence to support findings and to be able to report the findings in a clear and concise manner.

In many cases the final decision to terminate the employment is based on the final investigation report, it is therefore paramount that workplace investigations are carried out by highly skilled professional and experienced investigators.

Who should you call to conduct workplace investigations

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

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so when an external investigator is required they really don’t know what they are getting. Here are some suggestions;

A smaller investigation firm -The highly recommended option.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service, contact us for details enquiries@awpti.com.au

Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting, who is actually going to do the investigation?

Law firms
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.

Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications. Investigative skill may be an issues especially when it comes to interviewing.

Qualifications and licences required
If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and an applicable licence other states have similar provisions.

Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.

You can check is an investigator is licenced here

To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.

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

Background
The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.

How do you find an investigator?
When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/

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 connected, 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 relationships.

Choosing the right investigator can save you time, money and worry, getting it right the first time every time is essential.

Another option

Workplace Investigations Peer Mentoring – there may be a number of reasons why you wish to conduct an internal workplace investigation such as the cost of outsourcing or the opportunity provide you and/or your team with valuable experience.

If you intend to conduct a workplace investigation internally AWPTI can assist by peer mentoring you before, during or after the process, including helping you to plan the investigation, acting as your support person during interviews, reviewing evidence with you and providing guidance as required during the report writing process. Please contact us for details and costing enquiries@awpti.com.au

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/
http://awpti.com.au/training/

Sexual Harassment Investigation Sydney NSW/ACT

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

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

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

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

When you receive a complaint you have three choices;

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

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

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

  • Fair
  • Thorough
  • Unbaised
  • Timely

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

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

We can also assist by training your HR professionals and managers in the investigation process – awpti.com.au/investigation-training/

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

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

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so when an external investigator is required they really don’t know what they are getting. Here are some suggestions;

A smaller investigation firm.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service, contact us for details enquiries@awpti.com.au

Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting?

Law firms
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.

Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications. Investigative skill may be an issues especially when it comes to interviewing.

Qualifications and licences required
If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and an applicable licence other states have similar provisions.

Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.

You can check is an investigator is licenced here

To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.

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

Background
The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.

How do you find an investigator?
When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/

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 connected, please feel free to send me a request).

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

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

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

Sexual Harassment Investigation Sydney NSW/ACT

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationships.

Choosing the right investigator can save you time, money and worry. getting it right the first time every time is essential.

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

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

Unfair Dismissal Fair Work Commission Recently

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

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

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

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

Commissioner Ryan held

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

Lesson for employers

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

Unfair Dismissal Fair Work Commission Recently

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

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

Workplace Investigation Terminations Unfair dismissal

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

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

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

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

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

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

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

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

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

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

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

Lesson for employers

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

Workplace Investigation Terminations Unfair dismissal

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

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

 

 

Workplace Misconduct – Things to consider when terminating an employee

Recently an employee who was terminated for workplace misconduct as as result of drinking too much alcohol on Anzac Day and was awarded $8229.00 after the Fair Work Commission found that her dismissal was valid but none the less harsh under the circumstances.

Avril Chapman was employed by the Tassal Group. Her job  involved scaling, slicing, weighing and packing fish.  She had  been employed since 1 August 2012 and was terminated for workplace misconduct on 1 May 2017.

On 25 April 2017, Chapman telephoned Tassal at 4.56 p.m. and left the following message:

“Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.”

The next morning the message was heard by a Tassal senior manager, Duane Baker, who was concerned that Ms Chapman was using a golden safety rule to excuse or justify her behaviour in consuming alcohol to an extent that she anticipated she would be unable to work the next day. Mr Baker felt that the behaviour was likely to amount to misconduct in that Ms Chapman had breached the Tassel’s Code of Conduct by not being responsible for her actions and accountable for its consequences.

Tassel provided a letter was given to Ms Chapman in relation to the workplace misconduct when she arrived at work on 27 April 2017. It read, “You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”

Ms Chapman responded to the allegation of workplace misconduct by email on 27 April at 7.06 a.m.
“Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day,” read the email.

“It was by BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got.

“As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work.

“Would it have been wiser for mw (sic) to call at 6 am on the 26th and plead illness? I think if I had done that then I wouldn’t be writing this letter now, but it wouldn’t have been the honest thing to do in my opinion.

“It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”

FWC Deputy President Barclay found the company had a valid reason for terminating Ms Chapman. DP Barclay found, “It makes no sense to me that a person at 4.46pm, some 13 hours before having to work, and before being involved in any activities which might result in impairment for work would decide to predict that she will be unfit to work the next day,’’ 

“Here the Applicant “took a sicky” in circumstances where she had voluntarily embarked upon a course of conduct that resulted in incapacity for work, the situation is perhaps made worse by the Applicant’s acknowledgement that she could have gone to bed early and been fit for work the next day.”

DP Barclay added that the case is not dissimilar to the situation of an employee “taking a sicky” without being ill. DP Barclay held that because this is the first time that Chapman has conducted herself in that manner in five years of working for Tassal her termination of employment was harsh under the circumstances, he stated “I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate,”

DP Barclay found that Ms Chapman’s lack of awareness, acceptance and commitment to meeting Tassal’s expectations demonstrates that the trust and confidence required for an employment relationship had been “destroyed”

Even though it was found reinstatement was not suitable, Ms Chapman was awarded $8,229 in compensation.

Workplace Misconduct – Lessons for employers

* Employers should consider all options before moving to termination of an employee
* Employers should consider things such as the length of a persons service and their previous employment record especially if unblemished
* If you are unsure about misconduct, call an expert and save yourself the headache.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4630.htm

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/
http://awpti.com.au/training/

Workplace Bullying Training – What are you doing?

Workplace bullying can be costly to employers and organisations thought the loss of valuable staff, loss or productivity and the potential for legal cost and compensation payouts. For employees it can lead to psychological trauma and life life mental health issues.

Addressing workplace bullying is essential and one way of doing this is Workplace Bullying Training.

WorkSafe Victoria will conduct a series of workshops over the next three years to give business owners information about how to recognise, prevent and manage workplace bullying, and how to better help employees return to work after suffering mental health injuries associated with bullying behaviour.

Targeted inspections will also be conducted in the local area focusing on industries with the higher number of mental injury claims lodged due to workplace bullying.

Workplace bullying is a serious breach of workplace health and safety laws and employers tolerating it risk prosecution.

“Of the 26,000 injury claims lodged with WorkSafe in 2016, more than 3100 were for mental injuries, and 1260 of those mentioned bullying as a cause,” said WorkSafe’s Executive Director of Health and Safety, Marnie Williams.

“The insidious nature of bullying means that often the damage is done long before an injured worker makes a WorkCover claim, which is why it is essential employers have prevention measures in place and work with employees to identify unacceptable behaviour and deal with it immediately.”

Ms. Williams said workplace bullying will never be acceptable under any circumstances.

“Workplace bullying is characterized by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety,” said Ms. Williams.

“WorkSafe is committed to helping employers and workers manage these types of risks, and to take action where it is appropriate to do so.”

If your organisation does not have access to the type of programs offered by WorkSafe, AWPTI can assist with programs tailored to suit your need and your budget – http://awpti.com.au/employee-training/

We can also provide a range of training for managers and HR Professionals – http://awpti.com.au/training/

Don’t take the risk of doing nothing or getting it wrong.