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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/

Discrimination Investigation Sydney 

Discrimination Investigation Sydney – Discrimination is any behaviour, practice or omission that makes distinctions between individuals or groups, so as to disadvantage some and advantage others.

Discrimination is unlawful on the grounds of:

  • Age
  • Carers’ responsibilities
  • Disability – physical or intellectual disability, HIV/AIDS
  • Gender
  • Irrelevant criminal record
  • Marital status, including occupation of spouse or partner
  • Parental status and carer/family responsibilities
  • Physical appearance
  • Political conviction
  • Pregnancy or potential pregnancy
  • Race, nationality or ethnic origin
  • Religious belief
  • Sexuality or sexual orientation
  • Social origin
  • Trade union activity
  • Transgender

Unlawful discrimination can take two forms:

1) Direct

2) Indirect

Direct discrimination

Is any action that excludes a person or a group because of an irrelevant personal characteristic, for example, an individual is treated less favourably on the basis of an attribute that the person may possess, such as race or disability.  Direct discrimination can include:

  • Not giving someone a promotion because of their gender
  • Forcing an employee to retire at 60 years of age
  • Employment advertising that has requirements, such as minimum age, which is not critical to the job

 Indirect discrimination

Occurs where a condition, requirement or rule is imposed, which on the surface is neutral or equal, but in fact operates in a way that discriminates against particular groups that have some characteristic in common (such as gender or national origin).  For example:

  • An advert that requires candidates to be 180cm tall for a certain job may be indirectly discriminating against most women
  • A requirement that everybody has to wear a company cap could be indirect discrimination on the grounds of religion. This is because members of some religions are required, as part of their faith to cover their head with particular headwear and wearing a cap would not be appropriate. This does not apply to appropriate and necessary safety wear
  • Removing the flexibility in start and finish times may discriminate against parents who are required to pick up children from school

Discrimination does not include

  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under a dispute resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

When investigating workplace discrimination it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conductingdiscrimination investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about discrimination investigations.

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

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

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

Email misuse dismissal fair

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

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

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

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

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

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

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

The email

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

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

As set out in the judgment:

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

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

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

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

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

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

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

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

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

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

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

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

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

The Commissioner held:

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

Not all mistakes destroy trust and confidence

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

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

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

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

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

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

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

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

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

 

Anti-bullying laws disciplinary process

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

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

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

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

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

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

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

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

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

Can the interim order be made under these circumstances?

The employer opposed the interim order:

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

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

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

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

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

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

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

Should the interim order be made?

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

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

Commissioner Hampton was satisfied

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

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

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

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

How does this affect future disciplinary proceedings?

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

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

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

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

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

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

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

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

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

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

Anti-bullying laws disciplinary process

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

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

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

Anti-bullying laws disciplinary process

Misconduct Investigations Sydney NSW

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

Common types of misconduct that are investigated are;

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

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

When investigating workplace sexual harassment it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conducting misconduct investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about bullying, sexual harassment and sexual harassment investigations.

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

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

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

Workplace Investigations Sydney NSW

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

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

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

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

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

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

Other considerations;

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

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

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

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

Typical area of investigations

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

Investigation review

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

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

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

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

Workplace training national wide

www.awpti.com.au

Sexual Harassment Investigations Sydney NSW

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

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

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

  • Staring, leering or unwelcome touching
  • Suggestive comments or jokes
  • Coercive behaviour that is intended to be sexual in nature
  • Sending sexually explicit emails or text messages
  • Repeated unwanted requests to go out on dates
  • Intrusive questions about a person’s private life
  • Requests for sex
  • Displaying posters, magazines or screen savers of a sexual nature
  • Inappropriate advances on social networking sites
  • Accessing sexually explicit internet sites
  • Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications

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

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

When investigating workplace sexual harassment it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conducting sexual harassment investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about sexual harassment and sexual harassment investigations.

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

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

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

Harassment Investigations Sydney NSW

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

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

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

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

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

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

When investigating workplace harassment it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conducting harassment investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

Check out our other blog articles about harassment and harassment investigations.

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

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

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

 

 

Bullying investigations Sydney

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

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

Workplace bullying can include:

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

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

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

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

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

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

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

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

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

When investigating workplace bullying it is important to get all the facts and evidence, conduct the process in a timely and professional manner and make determinations  adhering to procedural fairness guidelines.

If you are unsure about conducting bullying investigations, contact Australian Workplace training and Investigations, we can help, contact us on 02 9674 4279 or enquiries@awpti.com.au

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

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

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

 

 

 

Unfair dismissal flawed investigation

Unfair dismissal flawed investigation – Workplace investigations may be necessary part of business but are often complex and difficult to conduct, especially for the untrained and inexperienced.

A question that is generally raised after a complaint has been lodged is whether to conduct the investigation internally or to obtain external investigation assistance.

Before relying on the findings of an investigation especially when terminating an employee, employers must consider whether the investigation itself and its findings are sound and can be supported by the facts.

In the case of Jennifer Walker v Salvation Army (NSW) [2017] FWC 32 the internal investigation was found flawed due to reliance on false assumptions.

Link to case: http://www.austlii.edu.au/au/cases/cth/FWC/2017/32.html

In this unfair dismissal case at the Fair Work Commission, the applicant Ms Walker was the manager of the Salvation Army’s store in Lidcombe, Sydney. She had been an employee of the Salvation Army for 11 years and during that time had an unblemished employee record.

In July 2016, Ms Walker served a customer who wished to purchase items of furniture. Ms Walker did not enter a sale and provided the customer with a handwritten document indicating she had set aside certain items.

The customer arrived later in the week to pick up the furniture. The customer claimed he had paid $200 in full for the furniture, however, there was no record of sale. The Salvation Army subsequently investigated the issue. The investigation consisted of a review of the CCTV footage and discussions with Ms Walker and the customer.

The Salvation Army believed the customer’s account and that the CCTV showed Ms Walker had received $200 cash from a customer as payment for furniture he was purchasing.

The CCTV footage showed that while dealing with the customer, Ms Walker had at least $50 in her hand. Ms Walker denied receiving any money from the customer. The Salvation Army terminated her employment for serious misconduct (theft).

In considering the case, Senior Deputy President Hamberger noted that the more serious the alleged conduct the higher the standard of reasonable satisfaction is needed to be applied when determining whether the conduct occurred.

SDP Hamberger found that the evidence demonstrated that Ms Walker was holding a $50 note in her hand, but it did not establish that she had received that money from the customer. SDP Hamberger concluded the customer had not paid Ms Walker for the furniture and as a result held that Ms Walker had not engaged in serious misconduct and that her termination was unfair

SDP Hamberger was surprised at the lack of rigour in the internal investigation and that the Salvation Army so readily accepted the customer’s claims that he had paid ahead of the account of Ms Walker.

In finding that the dismissal was unfair, SDP Hamberger considered the criteria in section 392 of the Fair Work Act 2009 and awarded the Store Manager the maximum available compensation of twenty six weeks’ pay equating to $22,404.50.

Lessons for employers

When conducting a workplace disciplinary investigation, employers should undertake the following:

  • Ensure that the employee is afforded procedural fairness especially the right to be heard
  • Ensure that the employee is provided with an opportunity to respond to the allegations. This involves providing the employee with sufficient details of the alleged conduct in writing.
  • In the case of CCTV evidence, it is recommended that employers, ensure that the employee are permitted to view the footage prior to providing a response.
  • Genuinely consider different or alternative explanations for the alleged conduct, and ensure all available evidence is gathers from witnesses and duly considered.
  • Consider any mitigating circumstances prior to making a determination in regard to disciplinary action such the length of service or employment record and past behaviour of the employee.
  • Ensure impartiality and avoid making assumptions of guilt prior to the completion of a fair and thorough investigation;
  • Provide the employee with the opportunity to have a support person present, including providing the employee with sufficient opportunity to find an appropriate support person; and
  • When in doubt, consider other opinions before terminating.

This decision in this case demonstrates the disadvantages of undertaking an internal investigation which was not thorough and made assumptions (that is, the customer’s account was truthful), rather than taking a more open minded approach to all asserted facts.

If in doubt call an expert, getting a workplace investigation wrong can be costly both in terms of money and reputation.

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

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

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

You can contact me on 02 9674 4279 or phil@awpti.com.au

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