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Workplace Investigation Performance Management

Workplace Investigation Performance Management – As a workplace investigator there are times when at least 50% of the complaints I investigate stem from employee disaffection with being performance managed.

Performance management is not bullying or harassment if it is reasonable management action that it is conducted in a reasonable manner. The Fair Work Act is clear that a worker is not bullied is they are subject to reasonable management action carried out in a reasonable manner (section 789FD)

There are a number of performance management mistakes that are particularly common,

Not dealing with poor performance when it arises, and hoping it all improves with time.

This is very common, not only does it mean that issues are not addressed, more importantly it gives the employee the sense that everything is OK, they are doing fine.

Unfortunately when that employee is approached by a manager who suggests that their performance is not up to where it should be the reaction is often shock and disbelief which translates in many cases to, you must be wrong, there is nothing wrong with what I am doing, why are you picking on me, this is bullying, this is harassment!!

Performance management is not bullying or harassment it is reasonable management action – when it is conducted in a reasonable manner.

When employers don’t want to confront an employee because they personally find it challenging and anticipate that the employee will also, they tend to give bland mixed messages which don’t convey the full picture to the employee.

Many managers don’t like to deliver bad news, unfortunately many managers are ‘gun shy’and are worried about upsetting people and getting complaints.

If you are a manager you are going to have to manage. If you manage there is a chance you are going to get complaints even if you are in the right and have followed the correct process. You cannot stop employees from complaining, remember in their mind, you are wrong, there is nothing wrong with their performance, so why are you picking on them, this must be bullying, this must be harassment!!

If you have an effective Performance management in place, dive it get it done.

Not acting to terminate employment when it has become clear that performance has gone way below the acceptable level and isn’t improving.

There are many reasons why an employee is reluctant to terminate and I have heard these reasons on a number of occasions;

  • The employee is a good person
  • The employee has a family
  • The employee is trying hard

In these cases an effective performance management process can often resolve the situation but as a manger you have to dive in and get it done.

Other reasons,

  • Fear of a bullying complaint
  • Fear of an unfair dismissal application
  • Fear of legal action.

If you have an effective performance management and a trusted investigation process in place, and assuming you have followed that process you will be able to defend actions against you, so stop worrying and dive in and get it done.

Now, if you don’t have effective performance management and a trusted investigation process in place it’s time to get on the phone and call an expert and start by getting some training in understanding the concept of Reasonable Management Action and how to conduct effective performance management. The money you spend may save you much more in the future, plus not having to worry………….. That’s priceless…… AWPTI can help, details here

So what does an investigator know about performance management?
We see it when it goes wrong, we see the mistakes, and we see it when the proper process has been followed but complaints are still made and of course we investigate the complaints.

Workplace Investigation Performance Management – Don’t get caught fearing performance management.

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 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/

Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/investigations/

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

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

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential 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 0409 078 322 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 investigation

social media unfair dismissal

Complaint handling

Complaint handling can be a difficult part of HR, what to do, what approach to take, how do you decide?

Getting it wrong when it comes to handling complaints such as workplace bullying, harassment or sexual harassment can be a very costly exercise and can end up in court.

It is important to decide the following;

  1. What is the complaint about
  2. What should I do
  3. How will I do it.
  4. Is it a disciplinary matter?

AWPTI can assist you and take the stress out of complaint handling in three ways

  1. We provide free of charge a Complaint Analysis Chart that will help you to work out what course of action is the most appropriate. If you would like a copy of the chart go to our home page, scroll down and fill in the request box. http://awpti.com.au/
  2. We can provide you with training in relation to complaint handling and investigations. http://awpti.com.au/investigation-training/
  3. We can provide you with full investigation services to take the stress out of dealing with complaints.http://awpti.com.au/investigations/

Contact us to find out how we can help you and your business

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

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

Complaint handling

Unfair dismissal recently at the FWC

On 10 January 2017 an unfair dismissal hearing at the FWC in Melbourne upheld the summary dismissal of a worker who tested positive for cannabis after a car accident, despite the arguments that the employee was denied procedural fairness.

In Albert v Alice Springs Town Council, Commissioner Wilson found that the employee was fairly dismissed after having failed the drug test despite the employer not providing Mr Albert with the opportunity to respond to the drug test results.

The Commissioner’s held that the employee’s misconduct outweighed any procedural faults in his dismissal , in addition that it wasn’t obvious that failing to provide the worker with procedural fairness would lead to a finding he was unfairly dismissed.

Facts

In July 2016, Mr Albert was involved in a motor vehicle accident while driving a council truck, he was required to undergo a urine test which identified THC in his system that was 73 times higher than the Council’s ‘cut off’ level of 15 micrograms per litre.

The extremely high reading led the Council to summarily dismiss Mr Albert cited that his behaviour was serious misconduct in that it represented a danger to himself, other workers and the public.

Mr Albert filed an application for unfair dismissal arguing the Council had not provided him with the relevant paperwork when he took the urine test, and refused to give him copies of his results.

Although Commissioner Wilson found the Council had not provided the worker with procedural fairness, he held the dismissal was justified as the Council had a valid reason to dismiss the worker because his job involved safety-critical work.

Despite these defects in the Council’s internal disciplinary process, Commissioner Wilson held the dismissal was not harsh, unjust or unreasonable because the outcome of the disciplinary process would have been the same even if there had been no such defect.

As such Commissioner Wilson found that the seriousness of the worker’s actions outweighed the procedural faults of the Council in its decision to dismiss the worker. Further, had the procedural faults been remedied, and the Council formally put the test result to the worker, it would have been unlikely to affect or alter the ultimate outcome of the matter.

Lesson for employers

In most cases in relation to unfair dismissal, failure to afford procedural fairness before dismissing an employee will, result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation.

In very clear cases of serious misconduct, a lack of procedural fairness might save you from liability on an unfair dismissal claim, it is recommend that you still ensure that you provide procedural fairness and save yourself the argument later.

Have a well drafted drug and alcohol policy which clearly states what is acceptable behaviour and the consequences of any unacceptable behaviour will assist employers with disciplinary outcomes should an employee record a positive test result

Full decision – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc73.htm.

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

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

Australian Workplace Training & Investigation can assist you by conducting misconduct investigations, the Principal Phil O’Brien is a highly experienced and skilled workplace investigator, Lawyer and former member of the NSW Police who can guide you through the minefield of sexual harassment investigations. http://awpti.com.au/about-awpti/

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

Unfair dismissal

Evidence 2

Evidence rules

Evidence rules – When conducting a workplace investigation there are rules relating to evidence that you need to be aware of and adhere to.

The laws of evidence prescribe standards to which a fact must be proved, in workplace investigations that are generally classed  as civil proceedings in nature whether or not they end up in a court or tribunal, facts must be proved on the balance of probabilities. If the matter is of a criminal nature the facts must be proved beyond a reasonable doubt.

The civil burden of proof is considered to be a lower standard

Rule of evidence

Relevance:
Evidence obtained during an investigation or interview should be relevant to the matters under investigation.

Hearsay:

The hearsay rule is complex, however basically hearsay evidence is third party evidence for example John tells you that Julie told him that she was being bullied by Mike.

The evidence provided by John is hearsay. You need to interview Julie to obtain the information.

Hearsay evidence is unlikely to be admitted if the matter goes to court.

Best evidence:
It is better to rely on original documents, direct evidence from the parties and witnesses.


Corroboration:
It is wise to seek multiple sources of evidence.

Similar fact:
Be wary, just because you have evidence that a respondent behaved in a certain manner in the past does not mean they behaved in the same manner during the events that lead to the current investigation

Chain of evidence
You may have to show that the evidence you are relying upon is the actual evidence that you discovered during the course of the investigation for example documents or physical objects.  I will cover the chain of evidence in part 3.

If you intend to conduct internal investigations I highly recommend that you consider purchasing our Investigation Toolbox http://awpti.com.au/investigation-toolbox/

or the Investigation Interview Manual.  http://awpti.com.au/investigation-interview-manual/

If you require assistance with the investigations of workplace misconduct issues such as bullying, harassment, sexual harassment of any other issues please contact us at enquiries@awpti.com.au http://awpti.com.au/

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

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

 Evidence

Responding to sexual harassment complaints 2

Part 1 on this subject (more details) dealt with outsourcing investigations, in responding sexual harassment complaints 2 I will outline a procedure that can be followed if as manager or HR professional you choose to conduct the investigation internally.

Investigations are conducted internally for a number of reasons including, cost, availability and internal processes and procedures.

This article provides an overview of how to conduct an internal investigation. Please note it is an overview only, conducting an investigation is a complex and often time consuming matter requiring a high level of expertise.

There are many procedural steps during an investigation that are not included here for the purpose of brevity.

Should you wish a complete guide for conducting workplace investigations I have created a comprehensive investigation toolbox contains 35 documents (including template letters, interview plans, sample reports) and an Investigation Interview Manual. http://awpti.com.au/investigation-toolbox/

Complaints of sexual harassment

Generally complaints will be made either in person verbally or in writing, most commonly via email.

Step 1.

If the complaint is made in person, the first step is to obtain as much detail as possible from the complainant at the time of reporting.

If the complaint is made in writing or email, I recommend that you review the complaint and any other documentation, print it off and Identify and highlight areas where further information is required.

Identify areas where clarification of information is required, questions such as the who, what, what did they do, when, where, what was said, was anyone else present, if so who?

Step 2

Once you have reviewed the complaint it will be necessary to formally interview the complainant. 

This will require you to draft an interview plan that should include questions designed to have the complainant clarify when they meant when they used descriptive words such as sexually harassed, bullying, harassing, intimidated etc

You should also draft questions to have the complainant clarify words they may have used such as touched, looked, leered, yelled, shouted, angry etc and questions to ascertain the nature of the relationship of the parties prior to and during the incidents complained about

Complainants often use emotive language you must be sure what they actually mean.

You do not need to write out every question you are going to ask, the interview should be organic and led by the answers you receive to the key points you have identified.

Step 3

Interview the complainant. 

Investigative interviewing is a skill in itself and is far too detailed to go into here.  I have produced an interview manual that has been designed as a practical guide for workplace investigation interviewing. http://awpti.com.au/investigation-interview-manual/

The manual will assist you in preparing, conducting and reviewing the interview upon completion.

During the complainant interview you should be seeking as much further information as possible and the answers to the questions you have previously identified, clarifying as much information as possible

Step 4

Review all of the information (evidence) from the complainant.

Draw up a list of witnesses and potential witnesses. Witness will tend to support or refute the information provided by the complainant.

Draft the interview as you did for the complainant

Step 5

Interview the witnesses.

You should seek to obtain information that either corroborates or refute the complainant information.

Witnesses may also provide further information that leads to new avenues of enquiry.

Step 6

Review all the information you have. Identify any gaps in the information and what if any further information is required.

If warranted, draft a letter of allegation to be provided to the person subject of the complaint, the respondent.

The letter of allegation provided to the respondent must contain sufficient detail of the complaint to allow them to respond. This is a component of procedural fairness.

Step 7

Interview the respondent, allow them the opportunity to respond to the allegations and provide their side of the event/s. This is also a component of procedural fairness.

During the interview the respondent may nominate additional witnesses, these witnesses should be interviewed in the same manner as witnesses nominated by the complainant.

Step 8

Review and analyse all the evidence and make a finding as to whether the allegations have been substantiated or not or are unable to be substantiated.

Step 9

Report your findings in a clear manner.

Step 10

Advise the parties of the outcome of the investigation.

As I mentioned at the start, conducting an investigation is a complex and often time consuming matter. The AWPTI Investigation toolbox is a highly recommended resource for you to have if you intend to conduct investigations internally. http://awpti.com.au/investigation-toolbox/

If is important to remember, if you are unsure consider calling in an expert. http://awpti.com.au/investigations/

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

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

 

 

 

 

Responding to sexual harassment complaints – Part 1

Responding to sexual harassment complaints can be a daunting task for managers and HR managers, if you get it wrong there can be very costly consequences.

In the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC illustrates a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues.

In part 1 I will discuss outsourcing complaint investigations, in part 2 I will discuss conducting investigations internally (more details)

When you are faced with a complaint of sexual harassment the first decision you should make is should this be investigated, bit of a no brainer here, YES of course it should.

The second decision is, do we handle the matter internally or bring in an external expert.

Here is what the Fair Work Commission said about outsourcing workplace investigations, http://awpti.com.au/outsourcing-investigations/

When making the decision I recommend that you ask the following questions,

  1. Who will conduct the investigation?
  2. Do we have someone, or do I have the necessary expertise and/or experience to conduct the investigation.
  3. Is the nominated person or am I comfortable conducting the investigation.
  4. Does the nominated person, or do I have the time to conduct the investigation. This question is often overlooked, however investigations take time, time away from all your other work.

If the answer is NO to any of the questions it is recommended that you considering outsourcing the investigation.

A catch phrase that comes to mind is used by a Sydney conveyancer in radio ads,

“When all you do is conveyancing,
you get very good at it”

That statement very much applies to workplace investigations.

So you have decided to outsource the investigation, what now?

Unless you have a previous relationship with a workplace investigator it is likely that you will turn to Google where you will find a number of listings, so who to choose and why?

A Lawyer might be a good choice, after all they understand the law as it relates to workplace issues, but do they have the experience in conducting investigations, conducting investigative interviews and drafting investigation reports.

In face many law firms actually outsource investigations to professional investigators, I have worked for a number of law firms, this allows the lawyers to be able to provide advice based on the investigation report without bias or any suggestion of a conflict of interest. See http://awpti.com.au/law-firms/

A workplace investigation firm is also a good choice, however you must ensure that whoever is nominated to conduct the investigation has relevant expertise in the particular type of complaint you are dealing with.

Many  workplace investigation firms employ investigators with a policing background who have experience in interviewing, evidence gathering and brief (in this case an investigation report) preparation but remember policing may be different skill set to workplace investigation.

As an employer or HR professional you are able to ‘shop around’ for the investigator you want and who you feel comfortable with and also a price you are happy to pay.

While outsourcing may take away the stress of the day to day handling of the matter, you should still maintain a level of control, this is achieved by setting out a clear ‘terms of reference’ at the start and discussing and approving the investigation plan, see http://awpti.com.au/investigations/engage-awpti/

During the course of the investigation it is also important to establish points of contact, milestones and communicate with the investigator on an on-going basis through-out the investigation to ensure that the investigation is carried out in a timely manner.

Finally the investigator should be available to disuses their final report and debrief the parties  should you wish them to do so.

In part 2 I will discuss how to conduct the investigation internally.

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

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

AWPTI can assist you with by conducting misconduct investigations, the Principal Phil O’Brien is a highly experienced and skilled workplace investigator, Lawyer and former member of the NSW Police who can guide you through the minefield of sexual harassment investigations.

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

responding sexual harassment complaints

 

 

Punishment must fit the crime

It is important for employers to remember when managing misconduct issues to ensure that the punishment fits the crime.

For example in the case of In Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2016] a matter involving the alleged misuse of internal communication a terminated employee was reinstated after it was found by the FWC that a reference to the Director of the Catholic Mission as “Mission Impossible” in internal emails was a misguided attempt at humour and not sufficiently serious to warrant termination.

The Fair Work Commission ordered the reinstatement after finding that “the punishment did not fit the crime”.

It is often the case that employers are unsure as to what course of action to take when dealing with misconduct, I advise the following;

  • Investigate the matter thoroughly ensuring that you gather and consider all the available evidence.
  • Ensure that you always afford the person subject of the complaint procedural fairness, the right to know what they are being accused of and the right that their response is heard and considered.
  • Take into account
    • o The nature and overall effect of the misconduct to the parties and to the organisation
    • o The employees history, length of time with the organisation and previous if any misconduct issues
  • Review options other than termination

Still not sure, contact AWPTI, we can take the stress out of dealing with misconduct issues for you.

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

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

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 Application rejected – Reasonable Management Action.

A case of Reasonable Management Action. On 19 August 2016, the Fair Work Commission handed down a decision dismissing an order to stop bullying. This was only the seventh of its type relating the FWC’s bullying jurisdiction.

In Xiaoli Cao v Metro Assist Inc; Rita Wilkinson, the Applicant,  employed y a charity, sought orders from the FWC against her manager to stop bullying under s 789FC of the Fair Work Act 2009.

The alleged bullying conduct included overloading her, increasing her workload, requesting she perform “unreasonable” tasks, making accusations about her work ethic and demeaning her in front of her work colleagues and other allegations.

Notwithstanding steps taken following two mediation sessions, the Applicant filed a general protections claim on 12 January 2016 and made a bullying complaint to SafeWork NSW.

In exercising its jurisdiction, the FWC considered the Applicant’s evidence that her manager’s actions were not reasonable management action carried out in a reasonable manner.

The employer gave evidence that the actions taken did not constitute bullying and that, where possible, it had actioned the Applicant’s requests to address her concerns and also established measures to rebuild the work relationship between the two parties.

The Commission found that the evidence did not support allegations of unreasonable behaviour by the manager and that the employer had executed reasonable management action and also carried out fair and transparent investigations into her allegations.

This decision demonstrates how reasonable management action done in a reasonable manner will not be considered as workplace bullying.

If you are your managers are unsure about what is and what is not reasonable management action and workplace bullying, I strongly recommend you consider the AWPTI Management Essentials training program, details can be found at http://awpti.com.au/management-training/

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

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The full text of the decision can be found here- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

Reasonable Management Action