Bullying Claim Ended After Employee Dismissal

- Tuesday, June 24, 2014

Bullying Claim Ended After Employee Dismissal

A recent attempt by a former employee to take action against ANZ bank for bullying has been dismissed due to the fact that the employee is no longer working for the bank. According to the deputy president of the Fair Work Commission, the employee had no reasonable prospects of success so continuation of the case was considered unnecessary.

This dismissal was based on the fact that for a bullying claim to be dealt with in court there needs to be a risk that the employee would continue to be bullied at work in the future. As this particular employee was no longer working for the employer, the risk of future bullying had been removed and therefore there were no grounds for further action on the part of the Fair Work Commission.
Reasons for dismissal not relevant to bullying claims

The employee involved has opposed the move, stating that his dismissal from the organisation which took place while he was on paid parental leave, was invalid. He also claimed that he had been the subject of adverse action on the part of ANZ for making an anti-bullying application. In addition to this, there were a number of arguments made by the employee in support of his claims of an invalid dismissal and unfair treatment.

As the employee didn’t claim any breach of contract on the part of ANZ or refuse to accept the dismissal, the matter was considered not to have any bearing on the original bullying claims. According to the ruling, the employment contract was terminated, the employee accepted this termination and therefore bullying was not likely to be a problem in the future.

The matter being decided by the bullying case was considered to be unrelated to whether or not the dismissal was lawful or fair and this was treated as a matter to be dealt with separately at some point in the future. If, after the matter of the dismissal has been dealt with and the employee is reinstated, he will have the option of bringing a fresh anti-bullying claim to court.

No reasonable chance of success

When making the ruling, the deputy president stated that there was no reasonable prospect of success to the employee from continuing the claim. There is a provision in the Fair Work Act that action can be ceased if there is no chance that it will be successful. The deputy president noted that although at the beginning, when the application was made, there was a chance of success, the circumstances had changed and there was no longer any reasonable prospect of success.

In this case, success was taken to mean an order to stop bullying being issued against ANZ bank. As the employee was no longer working there, an order wouldn’t be able to be issued and therefore, even if the employee had a valid claim, there was no reasonable prospect of success.

Lawyer Loses Bullying and Sexual Harassment Case

- Tuesday, June 17, 2014

Lawyer Loses Bullying and Sexual Harassment Case

A recent ruling by the Federal Circuit Court found that a law firm hadn’t taken adverse action against one of its solicitors after she complained of bullying and sexual harassment in December 2011.

Emails sent from the solicitor to the firm where she stated that she wanted to consider how to part ways amicably and that the employment relationship had irretrievably broken down were determined to be acceptable as an official resignation. The solicitor had sent two emails on December 13th and had received a confirmation email back stating that her resignation had been accepted and inviting her to make a proposal for a settlement. She didn’t respond and later denied having resigned.

The solicitor had previously made claims of bullying and sexual harassment and the law firm had engaged an independent investigator to evaluate the claims. They had also offered the solicitor leave while the claims were being investigated. She sent the resignation emails on the morning that she was due to be interviewed by the investigator, stating that her leaving would save embarrassment to the firm and prevent sensitive matters from becoming public knowledge.

Allegations of bullying not upheld

The judge ruled against the solicitor in her allegations of bullying. There were eight separate incidents of alleged bullying and harassment by a legal secretary towards the solicitor. Some of the behaviour included the secretary rolling her eyes, huffing, and reprimanding the solicitor for not using the right coloured folders. This behaviour was not sufficient to amount to harassment according to the judge. The judge also noted the potential power imbalance between the solicitor and the secretary which favoured the solicitor as she had a more senior role in the firm.

Sexual harassment claims rejected

In addition to the bullying allegations, the solicitor made claims of sexual harassment against two lawyers in the firm. These claims included claims of passing physical contact and comments by one of the partners about trading in his wife for a younger model which were made in the presence of his wife. These allegations were also rejected by the judge who noted that although the comment may not have been funny to everyone, it didn’t qualify as sexual harassment when made to the solicitor.

Workplace policies found not to be part of contract

The solicitor also claimed that the law firm had breached her contract of employment and argued that the law firm’s workplace harassment prevention policy was expressly incorporated into her contract. This was ruled not to be the case as that particular policy was not expressly identified in the contract and there was no evidence that it had been provided to her when she signed the contract.

The law firm admitted that there was a clause in the contract implying that they would deal with her in good faith and the judge ruled that they had as bullying and harassment had not taken place, the solicitor had been given the opportunity to take time off, and an investigation had been organised into her claims.

How to Interview Witnesses in Workplace Investigations

- Tuesday, June 10, 2014

How to Interview Witnesses in Workplace Investigations

Interviewing witnesses is a crucial part of any workplace investigation but it can sometimes be difficult to extract reliable evidence. According to the rules of evidence, hearsay, opinions and assumptions are not admissible in court and you should avoid using unsound evidence to make a decision on allegations of misconduct in the workplace.

There are a number of potential issues that investigators should be aware of when they are interviewing witnesses in relation to a workplace matter. Here are a few guidelines to help you make sure you get the most accurate and relevant information when interviewing witnesses.

Seek explanations for assumptions

When interviewing it’s important to probe any offhand statements or assumptions that the witness may state. Asking why they believe something happened can reveal useful information or direct evidence and also can indicate weaknesses in the evidence. As memories can fade over time, it’s important that you gather as much information and explanation for the different behaviour as possible. If it is revisited at a later date, the witness may have forgotten the details

Take a wider view

Make sure you look at and ask about all the background circumstances which surrounded the alleged incident. This can often provide useful context for the allegations and any resultant behaviour on the part of either party. In many cases an apparently straightforward issue can be indicative of a wider problem and taking the background circumstances into consideration can give investigators valuable insight.

Learn the signs of avoidance

Often if someone has something to hide, they will avoid answering a question directly. As an interviewer, knowing the signs of avoidance can alert you to the fact that someone is trying to hide information. Ensure that your interviewee tells you what did happen rather than what should have happened or what ‘would have’ happened under different circumstances.

Interviewing witnesses for a workplace investigation can take patience but it is important that any evidence which is used to make a final decision complies with the rules of evidence. If there is a dispute over the final outcome of an investigation and the matter goes to court, any evidence or witness statements that aren’t admissible won’t be taken into consideration. This could lead to a reversal of any decisions made and extensive legal costs.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

Small Businesses Not Immune to Large Payouts

- Tuesday, June 03, 2014

Small Businesses Not Immune to Large Payouts

A family-run photography business has been ordered to pay a former employee more than $235,000 in compensation and penalties in a constructive dismissal ruling by the Federal Circuit Court of Australia. The ruling, made on April 30 in Melbourne, imposed penalties on the former employers for discrimination and breaching the Fair Work Act, after they allegedly told a pregnant employee that she couldn’t work with clients because it was “not a good look.”

Unreasonable Demands

The employers were ordered to pay compensation of $174,097 plus additional penalties by Federal Circuit Judge Dominica Whelan, who described their conduct as serious. As well as repeatedly discriminating against the employee on the basis of her pregnancy, and refusing to consider letting her return in a part-time capacity after the birth of her child, they insisted that she work “all hours necessary” to assist the business. She was ordered to take long service leave before her child’s birth because her employers stated that customers wouldn’t want to see a pregnant woman working, and it would make them (the employers) look like “slave drivers”.

In addition to the unreasonable demands on her working hours, after learning of her pregnancy, the employers demanded that she agree to a new contract of employment linking her wages to unrealistic, never previously achieved sales targets. The photographer had worked for the business for 12 years, and during this time it had never been suggested that her wages should be linked to sales figures. The figures had never been reached in the history of the time she had worked there, and she believed that the expectation was unreasonable.

Verbal Abuse

The behaviour of the employers towards the employee was aggressive, and included verbally abusive language on a number of occasions. This increased when she refused to work additional hours and complained of discrimination. The arguments put forth by the employer stated that if they had constructively dismissed the employee, it was due to a combination of performance issues and the financial state of the business, and unrelated to her pregnancy. However, Judge Whelan was satisfied that the employee’s pregnancy was the sole cause, and not the reasons suggested by the employers.

A Warning for Small Business from the Bench

Although in this case the employee was able to seek legal redress against her former employer, the judge raised concerns about the rights of employees in small businesses as a whole. Although this employee had been able to pursue her case due to her education and the fact her husband had legal expertise, evidence was heard that another employee in the same business had been afraid to inform the business owners of her pregnancy when she resigned and felt unable to seek similar legal protections.

Part of the reason for awarding the large payout, as explained by the judge, was to act as a deterrent against other small businesses making unreasonable demands on their employees and discriminating against pregnant workers. Judge Whelan stated that society has to take a stand to protect the capacity for women to continue in employment during their pregnancy and to be able to continue their career after having a child.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

What is Admissible Evidence

- Monday, May 26, 2014

What is Admissible Evidence

When you are conducting a workplace investigation it’s essential that for any allegations to be upheld, there is evidence to prove them. Whatever evidence is used should be compliant with the rules of evidence – this is known as admissible evidence. Using admissible evidence ensures that if the matter is later disputed and ends up at court, it is much less likely you will face legal costs and/or a reversal of any decisions made.

Records and documentary evidence

To be admissible, evidence has to be the “best that the nature of the case will allow.” When it comes to submitting documentation or electronic records, original documents are required unless there is a compelling reason for the absence of an original. Copies of documents, especially if they have been stored on a computer or other electronic form may not be given as much credence as originals as they could have potentially been altered or tampered with. Where possible it’s important to keep copies of original documents in case they are needed in future.

Witness statements and assumptions

Direct evidence from witnesses should be based only on what the witness saw, heard, felt, smelt or tasted. Opinions and thoughts are not considered admissible evidence unless the person involved is considered a credible expert. As well as avoiding opinions when gathering direct evidence from witnesses, it’s important to avoid assumptions, either on your part or on the part of the person you are interviewing.

Assumptions often stem from drawing a conclusion about a person or situation based on what someone thinks has happened. Unfortunately assumptions are often inaccurate and if used as the basis of a decision could lead to repercussions. When interviewing witnesses it’s important to seek clarification and explanations for any assumptions they make. If they can’t provide direct evidence to support an assumption there is a strong chance it won’t be considered admissible evidence.

Inadmissible evidence, even though it can’t be used in court, can still serve a purpose. In some cases inadmissible evidence can lead to the uncovering of admissible evidence and in other cases it can add context and understanding to admissible evidence which might not make sense on its own.

All workplaces should be aware of the need to preserve direct evidence such as original copies of performance reviews, incident reports and disciplinary interviews. If you are investigating a workplace matter and interviewing witnesses it’s important to understand the difference between admissible evidence and assumptions or opinions so you can ensure that the information gained is accurate and likely to hold up in court.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

Why Do the Rules of Evidence Matter in Workplace Investigations

- Tuesday, May 20, 2014

The rules of evidence are a set of guidelines which are commonly used to decide what types of evidence are admissible in court and what can be used to prove or disprove an allegation. As workplace investigations do on occasion end up in court it’s important that any evidence used to decide a claim is based on sound legal principles and will hold up if tested by the legal system.

Terminating or otherwise penalising an employee or manager without adequate evidence can lead to very serious legal proceedings and extensive costs for your organisation. By ensuring that any investigations you undertake are compliant with legal considerations you have the best chance of protecting yourself as well as your employees or managers and ensuring a fair and reasonable outcome for everyone.

The importance of relevance

Relevance is a fundamental consideration when it comes to assessing the evidence for any investigation, whether it is a minor matter or something more complex. For evidence to comply with the rules and to be admissible in court there must be a logical connection between the facts which are at issue and the documentation or statements used to determine them.

It can be easy to be swayed by irrelevant facts, especially if you have a personal relationship with the parties involved. If you are dealing with a manager or employee who is generally known as a ‘difficult’ person it can be hard not to let knowledge or information about previous unrelated behaviour affect your assessment of a particular incident which you may be investigating.

What happened vs what can be proved to have happened

When gathering evidence or deciding any workplace matter it’s important to be aware that there is a difference between what happened and what can be proved to have happened. Even though something may be ‘common knowledge’ if there is no evidence to prove it, then according to the rules of evidence, it didn’t happen.

As an investigator it’s essential not to confuse what ‘everyone knows’ happened with what can actually be proven and documented to have happened. This is where the evidence gathering part comes in. Any conclusions you come to at the end of your investigation need to be based on what can be proved to have happened, even if everyone knows this is not what actually happened. .

Applying the principles of the rules of evidence to every investigation can help protect your organisation and safeguard your employees. .

Written by Vince Scopelliti from WISE Workplace  Melbourne office

Public Servant Reinstated After Being Fired for Breast Touching

- Tuesday, May 13, 2014

In a recent court ruling the Industrial Relations Commission of NSW decided that a NSW public servant who was dismissed for inappropriate touching should be given his job back. The policy officer for the NSW Attorney General and Justice Department lost his job in 2012 after touching the breasts of five women during a Christmas party. He was also found to be in breach of confidentiality and recruitment policies after he revealed to a colleague that she had been unsuccessful in a recent job application.

Reasons for the decision

The ruling to reinstate the employee was based on a couple of different factors. In the investigation, the NSW IRC found that the employee who was dismissed was treated significantly more harshly than a senior manager who touched the breasts of two women at the same function.

During the time leading up to his dismissal, the policy officer had also presented a number of mitigating factors and arguments which it was found were not given due consideration. These included the level of his remorse, his belief that he had obtained consent and the fact that the incident was a one-off. On the day of the function, the policy officer had consumed a large amount of alcohol before attending the event and he stated that this was largely due to personal issues he was going through at the time.

The senior manager who had behaved in a similar manner at the same function was only demoted even though complaints suggested that the impact on the victims was more significant from the inappropriate touching by the senior manager than from the employee. The senior manager also denied all the allegations while the policy officer admitted to them and expressed remorse throughout the process.

After comparing the responses to the two men, Commissioner Anne Tabbaa ruled that dismissing the policy officer, when compared against the demotion of the senior manager, was overly harsh.

Reinstatement not always an option

Although reinstatement is not always considered appropriate in these situations, in this particular case it was an option due to the fact that the policy officer had maintained good relationships with other employees during the period between the incident and his dismissal. He had also carried out all his required duties during this time and had excellent character references.

Another reason for the policy officer’s reinstatement was that he had demonstrated remorse and shown willingness to be subject to disciplinary measures which included demotion to a lower pay grade and attending relevant sexual harassment training. It was also made clear that he had been embarrassed and humiliated by his actions and the consequences would remain with him for a long time. In addition to the other disciplinary measures, he agreed to have a warning letter placed on his file and to provide a written apology to each of the complainants.

The policy officer had worked with the department for 20 years and during that time took on various HR duties although he was never directly responsible for managing employees. During this time there had been no previous instances of him engaging in inappropriate behaviour.

Standardised procedures are vital

This case demonstrates the importance of creating standardised disciplinary procedures which apply equally to employees at all levels of an organisation. Even though the policy officer in this matter behaved in a manner that was a breach of the department’s code of conduct and ethics and its dignity and respect policy, the fact that he was dealt with so differently to his more senior colleague was considered unfair by the NSW IRC.

What is Workplace Bullying

- Tuesday, April 22, 2014

Workplace bullying has been identified as a serious problem in a large number of Australian organisations. According to a recent report produced by government organisation Safe Work Australia, workplace bullying affects between 3.5% and 21% of the Australian workforce and costs businesses and organisations around $6 billion a year.

Although “bullying” is a commonly used term, it is often misunderstood when used in the context of the workplace. Here is a brief overview of workplace bullying, what it means and the impact it can have on individuals and organisations in Australia.

What behaviour is classified as bullying?

Workplace bullying is broadly defined as repeated behaviour towards an employee or a group of employees which is unreasonable and creates a risk to their health and safety. Although the traditional view of workplace bullying is that of a manager harassing a subordinate, bullying can take place between co-workers of equal seniority or can be undertaken from a lower ranking employee towards a more senior employee.

Workplace bullying doesn’t include reasonable management direction and disciplinary action which is in line with reasonable company policies. Other types of workplace harassment including discrimination, sexual harassment and workplace conflict are not usually included in the definition of workplace bullying and can be dealt with separately or alongside bullying allegations.

What are the consequences of workplace bullying?

Workplace bullying can have severe consequences both for the individual/s involved and for the organisation as a whole. Some of the consequences for victims of work place bullying include: • Stress • Mental health issues including anxiety or depression • Loss of motivation • Effects on other areas of life including relationships, family and study • Physical health problems including headaches and back and neck problems • Sleeplessness • Loss of confidence • Isolation

As well as directly affecting the victim, workplace bullying also has consequences for organisations including: • Increased absenteeism • Reduced productivity • Higher staff turnover • Increased recruitment and training costs • Low staff morale It’s in everyone’s best interests for employers to take a proactive approach to preventing workplace bullying. As well as developing anti-bullying policies and staff training, make sure that as an employer you respond quickly to any allegations of bullying among your employees.

In recognition of the widespread issues caused by workplace bullying, the Fair Work Commission has recently brought new legislation into effect which makes workplace bullying unlawful. From January 1, 2014, workers who feel they are being bullied can lodge a complaint directly with the Fair Work Commission who can make whatever order it feels necessary to provide redress.

Matters concerning workplace bullying allegations can often be dealt with internally but if the allegations are severe or involve senior management it may be necessary to involve an external investigator. Our workplace investigators are highly experienced in cases of alleged workplace bullying and can help ensure a fair outcome and a quick resolution. Contact us today to find out more about what we can do to help you.

Reinstatement Appeal Awarded in Favour of Teacher

- Tuesday, April 15, 2014
                     

Last week the Fair Work Commission ruled in favour of a teacher who appealed against unfair dismissal after 37 years of service. The appeal was granted in spite of recognition that there was a valid reason for him not to be reinstated. In the ruling the Fair Work Commission stated that the employer had acted unfairly during the process and had not adequately investigated reinstatement options for the teacher. The teacher was employed by the Catholic Education Diocese of Parramatta and had been an employee there for 37 years. He was dismissed at the end of 2012 after refusing to follow a direction not to have contact with students out of school hours (for non-school related activities). Although the request not to have contact with students was found to be reasonable, the way the matter was handled and the teacher’s subsequent dismissal were considered unfair by the Fair Work Commission. This result highlights the need for employers to thoroughly consider reinstatement options for employees and to ensure that employees are fully informed if there is a possibility that they will be dismissed.
Employees should be advised if dismissal is a possibility
The teacher was dismissed at the end of last year after a disciplinary interview. During the process, and especially during the interview he wasn’t made aware of the possibility that he would be dismissed. The Fair Work Commission found that he wasn’t advised that the issues being discussed were significant enough to lead to a dismissal or that the diocese was considering dismissing him. This meant that he was not given an opportunity to address the allegations against him and put forward his case against being dismissed. Investigations also showed that the decision to dismiss the teacher was made for a number of reasons which weren’t discussed during the disciplinary interview. These included unsubstantiated rumours of sexual misconduct. During that time a number of teachers were under investigation for alleged sexual abuse of children and this was believed to be an influencing factor in the decision to dismiss the teacher. These reasons weren’t discussed with him prior to his dismissal and he wasn’t provided with the opportunity to respond to them. Although the teacher was advised that he would have the opportunity to put forward his case to the diocese’s executi ve director, he was never given that chance and was dismissed a couple of weeks later.
Unfair procedure
The Fair Work commission ruled that although the procedure for dismissing the teacher was unfair, the ruling for him to avoid out of school contact with students was reasonable. At the time, the school was under scrutiny for alleged sexual misconduct, and the request for teachers to avoid unsupervised contact with children was reasonable to protect the reputation of the school and the teachers and prevent further allegations being made against them. The Fair Work Commission also agreed that it was reasonable for the principal to refuse to reinstate the teacher to a teaching position, but that other options hadn’t been fully evaluated. The teacher had requested a non-contact position which didn’t involve spending time with students and this wasn’t given due consideration. The teacher had been with the school for 37 years and the fact that his long service hadn’t been taken into consideration formed a significant part of the appeal. This case highlights the need for employers to consider all reinstatement options for employees and ensure that any dismissal is conducted in a fair and reasonable manner.

What are the Steps Involved in An External Investigation

- Thursday, April 10, 2014

 

Workplace misconduct, bullying and harassment are surprisingly common among Australian organisations. Although many problems can be managed and resolved through in house human resources and management, sometimes hiring an external investigator is the best option.

A good workplace investigation follows a series of steps to ensure a fair outcome for everyone and an unbiased investigation. Although every investigation is slightly different here is a brief outline of the steps that are usually involved in the investigation process:

1. Define the scope and Terms of Reference
Before engaging an external investigator or with the assistance of the investigator, clients must determine what is wrong with the behaviour that has been reported – define the scope of the investigation and prepare initial allegations or issues to be investigated. Clearly articulating the scope and allegations made in writing to the investigator is a high determinant of success for the investigation and welfare of staff involved.
2. Appoint an external investigator
It’s important to take time to find the right external investigator. A poorly undertaken investigation could be a waste of time and money and could leave you liable for additional costs in the long term, especially if a dissatisfied employee decides to take further action against the outcome or the way the investigation was conducted. Make sure you find a professional investigator with a Private Investigator licence. The licencing process ensures minimum qualifications/experience, and a code of practice. After establishing the correct licence find an investigator with a good track record, solid experience and understanding of the law, particularly in the specific area you are investigating.
3. Analyse the information that’s available
The first step an external investigator should take is to thoroughly examine the information that’s available. In cases of harassment this means looking at all the records and any evidence on either side and gaining a general understanding of the circumstances, workplace policies and any issues that could have led up to the alleged bullying or misconduct. Once the investigator has an understanding of the situation he or she can make an informed decision as to how to proceed.
4. Interviewing the complainant and witnesses
After the investigator has discussed the situation in depth with the client, the next step is to interview the complainant, any witnesses to gather further information. Interviews should be conducted in a private location, recorded and allowing the interviewees to have a support person present if they wish. Copies of records must be provided to individuals to check and sign. In many investigations the initial interviews may reveal new or different information or additional leads. If this is the case, follow up interviews may be required to verify or further investigate new allegations or information.
5. Examination of records
The investigator should be given access to all relevant documents, emails and available digital data to corroborate statements made by witnesses. To ensure impartiality, the examination of disciplinary records should only be undertaken if relevant to the facts at issue. The final decision maker can use prior disciplinary records to determine an appropriate penalty but this should not be considered at the investigation stage.
6. Putting the allegations to the respondent
Only when all the evidence has been gathered is it appropriate to speak to the respondent. Speaking to the respondent last ensures that all relevant allegations and evidence can be put to the respondent for a full and fair response. It is a requirement to meet the obligations under procedural fairness to provide the respondent the opportunity to respond to all allegations this should be done in an environment that is supportive. Audio record this interview wherever possible and make sure the respondent gets a copy to sign. Respondents should always be given the opportunity to have a support person present to give support but not advocate on their behalf. It is fair to provide an opportunity for a written response to be provided also.
7. Analysis and report
Once all the information has been obtained, the investigator will analyse the information and produce a report detailing their findings. The report should detail the investigator’s findings, whether the allegations of misconduct or bullying can be upheld and show how they reached their conclusion. They may also make recommendations for further action by management.
8. Notify parties involved
The complainant and the respondent should be notified of the outcome of the investigation and what further steps are required on both sides. It’s important that any workplace investigation follows a logical process and that findings are carefully detailed to avoid further legal action and ensure a fair outcome. A well-managed investigation can help resolve the situation and lets everyone move on as quickly as possible. Contact us today if you have any questions about the investigation process or to find an experienced, professional external investigator.