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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

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/

 

 

Procedural fairness workplace investigations – a lot has been said, written and discuss about the recent matter involving Channel 7 and a cadet journalist Amy Taeuber  (link to previous article). It is important to clarify some points;

Procedural fairness workplace investigations – The ejection of the support person.

There is no argument that the support person was ejected from the meeting, however 7 claimed that it was not a disciplinary meeting and therefore there was no right to a support person.

We suggest that you save yourself the argument, always offer and allow a person attending a meeting to have a support person present if that meeting could or may result in a disciplinary outcome.  Personally whenever I interview a complainant, witness or respondent I always offer the interviewee a support person.

The recording of the conversation by the cadet journalist

With the exception of Queensland and Victoria, a person can’t covertly record a conversation without the knowledge other parties present.

In NSW recording a conversation without the knowledge of any person who is a party to the conversation is a breach of the Surveillance Devices Act 2007

7 PROHIBITION ON INSTALLATION, USE AND MAINTENANCE OF LISTENING DEVICES

(1) A person must not knowingly install, use or cause to be used or maintain a listening device:(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or(b) to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or implicitly, to the listening device being so used.

It is possible that if the recording occurred in NSW that Ms Taeuber could claim that subsection (b) (i) applied, however she would have to argue that they knew this prior to the recording being made

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party

Does a person accused of misconduct have the right to know who their accuser is?

A person has a right to know what they have been accused of and in most cases that will involve disclosing the details of the complainant.

In the meeting, Ms Taeuber demanded to know who made the bullying complaint, procedural fairness dictates that employees need to have enough information to properly respond to allegations. It is hard to answer a complainant of bullying if a person does not know who it is that they have allegedly bullied.

Revoking Ms Taeuber’s ID pass, phone and IT access?

This tends to suggest that a decision on guilt has already been made. By taking this course of action it seemed that 7 had made the decision in regard to Ms Taeuber future.  This of course will not be tested as the matter was settled.

It is important to keep an open mind during investigations of workplace misconduct

Lesson for employers

  • Procedural fairness in workplace investigations cannot be ignored or circumvented
  • Understand and adhere to the rules of procedural fairness
  • If you don’t understand the rules of procedural fairness get some training
  • Understand the process of investigation misconduct in the workplace in a fair and timely manner

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, Procedural fairness workplace 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.

 

Misconduct Investigation Allegation Letters. When AWPTI conducts an investigation we provide all the documentation including letters of allegation to our clients however I am often asked “Should we provide some sort of letter or email with the allegations?”
The answer is always YES.

Why: Recently I published an article about allegation letters, procedural fairness and why it is essential…Read more

In the case at the FWC of K v K&S Freighters Pty Ltd [2016] FWC 1555 (24 March 2016) an employee of 30 years was dismissed over misuse of a fuel card.  Commissioner Bissett found there was a valid reason for dismissal but there had been was a lack of procedural fairness.

The commission was satisfied the applicant sent freight without consignment notes, sent freight without charge and used a fuel card while he was on annual leave. Mr Kirkbright’s argument that this was how it had always been was not satisfactory.

Lack of procedural fairness

The Commissioner found that Mr Kirkbright was not advised that his conduct was an issue or were being investigated. In addition he was not provided with an opportunity to consider what was being alleged or the opportunity to respond.

The commission also considered that the HR department should have been better prepared for the meeting where Mr Kirkbright was dismissed:

“Whilst Mr K’s language in the meeting of 17 August 2015 leaves much to be desired; he displayed an appalling lack of respect for his manager and co-worker and this was the first time he had been confronted with the allegations. His reaction was not outside the realm of possibilities and should have been foreseen. The human resource manager, if she had not, should have walked the HR officer through what to do in such a circumstance.”

“The meeting should have been halted, Mr K given the allegations in writing and he should have been given an opportunity to respond either in writing or in a meeting at a future date (which could have been in a couple of days).”

The Commission found that the lack of procedural fairness and long service of the employee were both relevant.

On providing an opportunity to respond the commission said:

“In Crozier v Palazzo Corporation Pty Ltd… the full bench said:  As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified…”

Mr Kirkbright sought reinstatement but it was considered inappropriate. The matter was set down for compensation to be considered.

Later in Kirkbright v K&S Freighters Pty Ltd [2016] FWC 2743 (4 May 2016) the Commission ordered compensation in the amount of $11,624.25 plus superannuation.

Misconduct Investigation Allegation Letters – Lessons for employers

  • Procedural fairness cannot be ignored, it requires an employer to provides any employee accused of misconduct with a chance to respond and put their side or version of events forward before any final decision is made.
  • Don’t take short cuts, it’s not worth it in the long run.
  • If you are not sure what to do, get help, call an expert.

As I mentioned when we conduct investigations we ensure that all the documentation is legally complaint and that procedural fairness is afforded. If you wish to conduct investigations into misconduct internally I recommend;

  1. Have your people, HR professionals or managers trained. AWPTI can provide 1 and 2 day investigation training courses for HR professionals or managers – Read more
  2. If you have an understanding of the investigative process make sure all your documentation is complaint. For those that wish to DIY we have created an Investigation Document Toolbox – Read more
  3. Read our TOP TEN tips for workplace Investigations Misconduct, Complaints and Grievances – Read more

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 Misconduct Complaints Grievances – When faced with issues of workplace misconduct or complaints or grievances employers have a duty of care to respond in a manner that ensures a safe working environment. – Read more about the duty of care

Generally when you receive a complaint you have 3 choices;

1. Outsource to an external investigator (See what the FWC had to say about outsourcing investigations – read more)
2. Conduct an investigation internally
3. Do nothing (you would be amazed at how often this is the preferred option)

Reasons to outsource.

Outsourcing will involve a cost but you should consider it if you don’t have someone in the organisation who has the necessary;
1. Skill/expertise
2. Experience
3. Time (Don’t underestimate the time take up by investigations, time that other HR or managerial work is not being done)
4. Desire (Often HR professionals or managers are tasked with conducting an investigation that they really do not want to do.

Also that you can ensure;
1. A lack of bias, generally people within then organisation know the parties and make have relationships – (Read more about avoiding bias)
2. An absence of any conflict of interest
3. Your investigator understands the investigation process, procedural fairness, evidence, admissible questions and report writing that will withstand scrutiny by tribunals and courts.

Reasons conduct the investigation internally

You answered yes to all of the above and you want to save money.

Recommendations for internal investigations

1. Have your investigators, HR professionals or managers trained to conduct professional investigations it is a cost effective method of helping to ensure that you get it right the first time every time.  – AWPTI can assist by provided investigation training courses – Read more

Follow the TOP TEN tips for conducting internal workplace investigations

1. After receipt of the complaint draft an investigation plan including what needs to be done, who is going to do it,time frames and timelines.
2. Review the complaint (they are mostly written or via email) identify the parties, the complainant, respondent (the person subject of the complaint and witnesses, identify areas that need to be clarified and/or what other information is required and how it is going to be gathered. Draft interview plans.
3. Notify the parties that an investigation is underway.
4. Interview the complainant first to obtain full details of the complaint, to clarify any issues or outstanding information, identify any potential witnesses or other sources of evidence
5. Interview any nominated or known witnesses to corroborate or otherwise the version of events from the complainant and/or fill in any holes in the evidence
6. Review all your evidence in reference to the organisations policies and/or Code of Conduct, has there been a breach if so what kind. Does the behaviour complained about fall within the definition of workplace bullying (read more), or other misconduct such as sexual harassment.
7. Draft a letter of allegation to be sent to the respondent, this letter MUST afford the respondent procedural fairness.
8. Interview the respondent, this interview MUST also afford the respondent procedural fairness. You may also be required to interview witnesses nominated by the respondent. (For more information about  procedural fairness)
9. Review and analyse all of the evidence
10. Make and report your findings based only on the evidence and make recommendations if required.

We hope that this article and these tips are able to assist you to traverse the minefield of workplace investigation misconduct complaints grievances, we have a number of services and products that may be able to assist you;
Outsourced investigations – http://awpti.com.au/investigations/
Investigation training – http://awpti.com.au/investigation-training/
Investigation Document Toolbox – http://awpti.com.au/investigation-toolbox/ (all the documents and guides for conducting internal workplace investigations
Investigation Manuals – http://awpti.com.au/hr-products/ (Useful manual to help you to conduct internal workplace investigations including procedural Fairness, Interviewing and Reasonable Management Action)

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

Workplace Bullying is an issue that is still facing an increasing number of employers and adversely affecting many employees.

To address these issues we recommend the following;
1. Training on what workplace bullying is and what it is not and what the behavioural expectations of the organisation are. AWPTI can assist with a number of programs for mangers, staff and HR professionals – http://awpti.com.au/training/

2. Investigate complaints in a timely and professional manner – Not sure what to do or how to do it, Read more,
AWPTI can assist – http://awpti.com.au/investigations/

What is workplace bullying?

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.

The principles contained in the anti-bullying provisions of the Fair Work Act also provide assistance in determining whether bullying has occurred. The Fair Work Commission’s Anti-bullying Benchbook provides download here: FWC Anti Bullying Benchbook

Bullying – When is a worker bullied at work?

See Fair Work Act s.789FD – Read more

A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

Bullying can cover behaviours carried out by one or more people.

The definition gives effect to the Government’s response to the House of Representatives Standing Committee on Education and Employment’s report Workplace bullying We just want it to stop”.

Repeated unreasonable behaviour

The Committee noted that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.

There is no specific number of incidents required for the behaviour to be considered ‘repeated’, nor does the same specific kind of behaviour have to be repeated.

Risk to health and safety

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.

The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.

The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.

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

Safe Work Australia – Guide for Preventing & Responding to Workplace Bullying

Safe Work Australia has provided guidelines for the prevention of and response to workplace bullying – download here – Safework Australia Guide to preventing & responding to workplace bullying

Workplace bullying can adversely affect the psychological and physical health of a person. Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it. If effective control measures are put in place to address and resolve workplace issues early, a workplace can minimise the risk of workplace bullying and prevent it from becoming acceptable behaviour in the workplace.

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

Examples of behaviour, whether intentional or unintentional, that may be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include but are not limited to:

  • abusive, insulting or offensive language or comments
  • aggressive and intimidating conduct
  • belittling or humiliating comments
  • victimisation
  • practical jokes or initiation
  • unjustified criticism or complaints
  • deliberately excluding someone from work-related activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources to the detriment of the worker
  • spreading misinformation or malicious rumours, and
  • changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

If the behaviour involves violence, for example physical assault or the threat of physical assault, it should be reported to the police.

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 dis-empowers 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.

Workplace bullying behaviour does not include:

  • Reasonable action taken, in a reasonable manner by an employer to counsel, transfer, demote, discipline, retrench or dismiss an employee
  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit about an employee’s employment
  • Reasonable administrative action taken in a reasonable manner by an employer about an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under the companies Grievance Resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

For assistance with training (we have specialised packages for managers, staff and HR professionals) or investigation please contact us – enquiries@awpti.com.au or 02 9674 4279

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