Workplace Investigation expensive fail
Workplace Investigation expensive fail – get it right or pay the consequences, these articles clearly illustrates the consequences of not conducting a thorough and professional workplace investigation into matters such as bullying harassment discrimination or sexual harassment.
From HRD – Botched summary dismissal: Supreme Court awards almost $400,000 to wronged worker
From New.com.au – ‘Obviously serious’: Huge payout over wrongful Xmas party ‘thrust’ claim
This matter cost the employer in excess of $350,000 in compensation plus the cost of defending the matter in the Supreme Court.
The court found that the behaviour of the radiologist did not reach the threshold of workplace bullying or serious misconduct and that the “The allegation of sexual harassment is not made out.”
It is vitally important that when conducting investigations employers understand the definition of bullying and sexual harassment at law especially in light of the changes to sexual harassment legislation following the Respect@Work report 2020.
One of the most important changes was to the Fair Work regulations with the inclusion of sexual harassment at regulation 1.07, (Link)
Fair Work Regulations 2009 – Reg 1.07 Meaning of serious misconduct
(3) For sub regulation (1), conduct that is serious misconduct includes each of the following:
(iv) sexual harassment;
The Fair Work Commission defines meaning of sexual harassment by refering to the meaning of Sexual Harassment in s28a of the Sex Discrimination Act (Link)
“in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
It could be argued that the bar for dismissal for sexual harassment had been significiently lowered.
Advice for employers;
If you are not sure if you have the expertise or skill to conduct an investigation that will withstand scrutiny you have 2 options, engage an expert or undertake training to ensure that you fully understand and can apply best practice workplace investigations processes.
Again if you intend to conduct an internal investigation I highly recommend that you are trained in best practice workplace investigation processes and that you have the necessary resources.
If I can assist with external investigations please contact me, phil@awpti.com.au or check this page https://awpti.com.au/workplace-investigations/
If you would like to undertake best practice investigation training, I have a number of options;
The open course recommended if you have one or two people in your organisation that require training. The next course is scheduled to be conducted in October or early November the date has yet to be set there are places still available, details are here.
I also conduct internal courses for organisations. These courses can be run at a time/date to suit you depending on availability and are charged at a flat rate with no limit on attendees.
I have general investigating workplace misconduct courses that include bullying harassment sexual harassment and discrimination and also other matters such as fraud and theft and I also have specific investigating sexual harassment training courses. The details are below.
General investigating workplace misconduct course – https://awpti.com.au/conducting-workplace-investigations-full-course/
Invesigating workplace Sexual Harassment specific – https://awpti.com.au/sexual-harassment-investigation-training/
With the Christmas party season approaching I recommend that employers conduct sexual harassment training as end of year festivities have historically resulted in sexual harassment complaints.
Details of the Understanding Workplace Sexual Harassment training course options are here
Please contact me if you would like more details or you would like to discuss making a booking – enquiries@awpti.com.au
you can see what past participants have said about the courses by at this page – https://awpti.com.au/awpti-testimonials/
