How to Plan a Workplace Investigation and Why it’s Important

- Tuesday, August 19, 2014

How to Plan a Workplace Investigation and Why it’s Important

If you are conducting either internal or external workplace investigations, it is crucial that you formulate a unique plan of action for each investigative process. No two workplace issues are the same, and a well-structured investigation plan will ensure that you account for the many variables that can arise. Almost certainly, you will be dealing with complex fact scenarios and high emotions within the workplace. Without a well-planned workplace investigation process, such factors can lead to distractions and pitfalls that have the potential to take the investigation off-track. The key factors to build into your investigation plan include:

    • Maintaining procedural fairness during the workplace investigation
    • Planning how to elicit the best evidence
    • Ensuring full coverage of pertinent issues
A good workplace investigation plan guides the process - yet retains sufficient flexibility to accommodate unforeseen developments.
Maintaining procedural fairness e

Legally, procedural fairness is not as simple as ‘being fair’ in our dealings. The very structure of a procedure such as a workplace investigation must also appear fair to an objective bystander. For example, a well-meaning internal investigator might dissuade a worker from bringing a support person because ‘this is just a friendly chat’ about alleged misconduct. It might well transpire that any evidence gathered in this process is tainted by a lack of procedural fairness. A cogent plan for how and when staff and management will be engaged is crucial. If the size or nature of the organisation is such that such fairness cannot be guaranteed, engagement of an external investigator might well be the prudent option. For external investigators, assessing any potential power dynamics, access issues or managerial support for the investigation can all enable the investigator to create a robust and procedurally fair workplace investigation plan, suitable for individual workplaces.

Plan for the best evidence

In workplace investigations, it pays to keep in mind that the best reports and recommendations are built upon sound evidence. The Briginshaw principle reminds us that although there is only one civil standard of proof – the balance of probabilities – the seriousness of the allegations and possible consequences in a particular matter will affect whether available evidence is sufficiently probative to meet that standard. In the heat of the moment in a workplace investigation, it can certainly be difficult to remember your rules of evidence, with a view to possible future actions! Unfortunately with workplace disputes often creating a veritable minefield of evidentiary blunders such as hearsay (‘I heard from Henry that Sheila saw Jane take the printer’), it is best to plan for the location and elicitation of the most probative available evidence in the circumstances. In your investigation plan it helps to go over any written brief or preliminary notes you might have on the physical and social characteristics of the workplace, in order to timetable your evidence-gathering strategy. Are original documents onsite, are private interview rooms available, are any key staff members on leave, do managers encourage support people for interviewees? With a little forward planning, the workplace investigation can extract strong and compelling evidence.

Ensure full coverage of pertinent issues

A workplace investigation should proceed with clear and detailed terms of reference (TOR). The investigator must be clearly informed as to the scope and scale of the investigation, in order to be able to create an investigation plan that most closely meets these parameters. Within that plan, it will be necessary to identify the relevant aspects of employment law or related legislation, in order to gauge the most pressing issues to investigate relevant to the TOR. For example, recent case law regarding exclusionary provisions within anti-discrimination legislation might affect the types of relevant issues to best explore in a given workplace. As well as planning for legal and factual issue coverage, a sound investigation plan will ensure that the workplace investigation does not head off on a tangent. It can take strong professional aptitude to compassionately hear a story, while also limiting interviews to the pertinent issues.

In order to be fair, to collect good evidence, and to cover all of the pertinent issues, a detailed workplace investigation plan is a must-have for all workplace investigators.

How to Handle Workplace Bullying

- Tuesday, July 29, 2014

How to Handle Workplace Bullying

Is bullying a problem in your workplace? According to a regulation impact statement produced by Safe Work Australia, the prevalence of bullying in Australian workplaces is between 3.5 and 21%. The cost of bullying to businesses in terms of lost productivity and absenteeism amounts to millions of dollars every year, and being a victim of bullying can affect the physical and mental health of employees.

If you suspect bullying is a problem in your workplace, it’s important that the problem is addressed, but how do you tackle it without making things worse or aggravating the situation further? Here are a few suggestions to help you handle workplace bullying in your organisation.
Make sure you have all the information

Before you jump in to try to resolve the situation, it’s important to make sure that you have a complete understanding of the issues involved. It’s a good idea to speak to other co-workers who may have witnessed the alleged bullying and find out whether there are any underlying problems which may have contributed to the situation.

If you try to take further measures without having an accurate picture of what is happening, you could end up causing further conflict and making the situation worse. If you have a personal relationship or work closely with either of the parties involved, it may be worth taking a step back and asking HR or even an external investigator to help you.

Before taking further action you will need to evaluate whether the behaviour can be defined as bullying or whether it falls under a different category such as sexual harassment or discrimination. Sexual harassment and other forms of discrimination require a different disciplinary approach to bullying.

Minimise the risk of continued harm

Once you have evaluated the situation, the next step is to take short-term measures to prevent the behaviour continuing. It may take a while to come to a full resolution so in the meantime you may want to consider reassigning tasks, granting leave or taking steps to ensure that the parties involved have minimal or no contact.

Decide whether the matter can be resolved

If the bullying isn’t too serious, it may be possible to resolve the matter internally with a no-blame conciliatory approach or disciplinary measures for the person found to be doing the bullying. In more serious cases, you may need to conduct an in-depth investigation, especially if someone could potentially lose their job over bullying allegations. .

If you decide on a resolution, it’s important to make sure the person being bullied is happy with the outcome. They may wish to deal with the situation themselves first by asking the person doing the bullying to stop, and you can offer them support in this.

As an employer, it’s important that any actions taken are well documented. If your management and employees haven’t undergone specific workplace bullying training it is well worth considering. Anyone who may have to deal with bullying incidents should be aware of the legislation surrounding workplace bullying before they escalate an issue or take action themselves.

When Should You Report Workplace Bullying?

- Tuesday, July 22, 2014

When Should You Report Workplace Bullying?

Workplace bullying can be toxic to organisations and can have a long-term physical and emotional impact on victims. If someone you know is being bullied at work, it’s important to know when to report it.

Workplace bullying is defined as repeated and unreasonable behaviour which is directed towards an individual or a group of workers, and creates a risk to their health and safety.

Every situation is different when it comes to workplace bullying, and it can be difficult to know how serious it is. If there is an immediate risk of physical harm to an employee, then workplace bullying should definitely be reported. In less serious cases, whether or not to report the bullying to a manager or supervisor can depend on how comfortable the victim is talking to their supervisor, and whether they are concerned about repercussions.

When determining whether or not to report bullying to a supervisor, it’s important to decide if the behaviour is classed as bullying, or if it falls under another category like reasonable management direction or discrimination.

Here are some examples of workplace bullying that should be reported:

                • Repeated hurtful remarks about a person’s standard of work or them as a person, including comments about their ethnicity, sexual orientation, economic background or other factors.
                • Repeatedly excluding someone or stopping them taking part in activities related to work..
                • Giving someone pointless tasks which have nothing to do with their job.
                • Deliberately changing someone’s work hours or schedule to make it more difficult for them to do their work.
                • Deliberately overloading someone with work they can’t possibly get done in the required timeframe or with the available resources.
                • Physical bullying including pushing, kicking, grabbing or any other physical contact which is unwanted and repeated.
                • Threats of physical harm against a person.

Some activities which aren’t categorised as bullying include:

      • Reasonable management direction. .
      • Disciplinary action which is reasonable and in keeping with organisational policies and procedures.
      • Other forms of harassment including sexual harassment and discrimination. These should still be reported, but will be dealt with differently from workplace bullying.

If you are concerned about bullying in your workplace, it may be worth having a confidential discussion with a supervisor, or a health and safety officer, to determine whether further action should be taken.

Whatever the circumstances, it’s important that workplace bullying or intimidation doesn’t continue, as this can have serious repercussions for the wellbeing of the victims and other employees who may be exposed to the behaviour. It can result in an unhappy and unproductive workplace for all employees, not just the direct victims of bullying.

Defence Department Criticised for Dismissal Process

- Tuesday, July 15, 2014

Defence Department Criticised for Dismissal Process

The Fair Work Commission (FWC) has criticised the Department of Defence for its dismissal of an employee for excessive personal internet browsing, and the use of an anonymous search engine. The dismissal took place after a workplace investigation which the commission deemed to be unfair and unreasonable.

During the investigation of the employee, the Department failed to speak to the employee’s manager or work colleagues about his internet usage, and whether or not it was having an impact on his work. Senior Deputy President of the FWC Jonathan Hamberger made the point that it was fairly evident that co-workers and the employee’s direct manager would have a strong idea of whether he was spending the majority of his time browsing the internet for non work-related reasons

The original allegations against the employee stated that he had visited non work-related websites up to 1,822 times per day but this figure was later amended after it was found to be incorrect. The issue was never raised with the employee’s manager, but instead a bureaucratic process was put into action which was described by the deputy president as “bizarre” and as taking on a life of its own.

Reasons for the findings

Some of the reasons for finding the dismissal to be unfair and harsh included the severity of the penalty compared to the severity of the alleged behaviour. There was no clear evidence that the internet usage was affecting the employee’s work and even if it had been excessive, informal counselling would have been a more appropriate penalty than dismissal, the commission found.

In the employee’s defence he was described as an honest witness with a genuine interest in IT security issues, which explained his motivation in deleting cookies and using anonymous search engines. According to the employee, his reason for using anonymous search engines and deleting cookies was to protect the Department’s IT network rather than as a way of hiding his usage and internet activities.

He admitted to sometimes using the internet for personal reasons but no evidence could be found that his internet usage was adversely affecting his work.

Defence policies criticised

The investigation, as well as not taking into consideration the statements of the employee’s colleagues and manager, was found to have been excessively drawn out and there were no clear policies to provide a valid reason for the employee’s dismissal.

The Defence Department was advised by the commission that if it wanted the use of anonymous search engines to be punishable by dismissal then that needed to be stated clearly in its policies. The current policies were found to be vague and contradictory on the subject of anonymous internet usage.

No remedy has so far been determined, with the parties due to meet at a future date to discuss the options for providing reparations to the employee.

How to Work Effectively With External Investigators

- Tuesday, July 08, 2014

How to Work Effectively With External Investigators

If you are dealing with an employee dispute, suspected misconduct or allegations of harassment and bullying in many cases it may be necessary to hire an external investigator. Utilising the services of an unbiased third party means that you can be sure your investigation will be free from personal conflict and the person in charge of the investigation will be truly impartial.

Employee or management conflicts can be devastating to any organisation and they can end up costing a lot of money in absenteeism and lost productivity as well as creating a stressful environment for co-workers. Many employee disputes and allegations of misconduct come with legal implications so it’s important that any investigations are conducted ethically and lawfully by a skilled professional. If not handled properly, any resolution could be overturned or lead to a lengthy and costly legal battle.

It is in everybody’s best interests to get the best possible outcome when working with an external investigator and there are a few things you can do to help ensure a quick and accurate resolution of the situation. Here are some tips for working effectively with external investigators, for management and employees.

Before the investigation starts

It’s important that everyone is clear about the scope of the investigation, the terms and whether or not there are any conflicts of interest or other issues which could affect the investigator’s ability to carry out their job in an unbiased manner. Make sure it is clear what assistance and support will be required from the agency or organisation including access to administrative records, availability of employees for interview and any other requirements.

Knowing what to expect on both sides will help alleviate stress and misunderstanding and make the process go a lot more smoothly. Although not everything can be predicted, the investigator will probably have some idea how they plan to go about the investigation and it is important that this is communicated to the organisation so that management and the employees involved understand what is likely to happen.

Once the investigation is underway

Good communication is essential at all stages of an investigation and a set of deliverables should be agreed on by both sides so that expectations are clear. It’s a good idea for the investigator and a representative of the agency they are investigating to touch base regularly to ensure any issues are dealt with and the investigation is proceeding as required.

Make sure that the investigator you use provides a full written report of their findings including all the evidence, how it was obtained and the reasoning process involved in reaching their final conclusion. This is an essential part of the process and can protect you in the future if there is a dispute over the final outcome by giving you a written record of exactly what was decided and what evidence was used.

Generally an investigator doesn’t make the final decision but they may make recommendations. Make sure that the person who is in charge of making a final decision, particularly if it involves termination of employment, is aware of the legal and procedural implications involved so as to reduce the chance of further legal action or a decision being overturned.

The more you co-operate and support an external investigator the more likely it is that you will have a quick resolution and be able to put the matter behind you and move on. At Wise Workplace we have experience working with a number of different agencies and investigating a wide range of complaints. Talk to us to find out how we can help you.

How Do I Know if I Need an External Investigator?

- Tuesday, July 01, 2014

How Do I Know if I Need an External Investigator?

Knowing when to hire an external investigator and when to undertake an internal investigation can be tricky. If you have an employee or group of employees who have been accused of misconduct or suspect that bullying or harassment is taking place in your organisation when is it appropriate to look into the matter yourself and when should you bring in an outside professional?

Whatever you choose to do it’s important that the outcome is fair and reasonable and that the investigation and its findings are compliant with the relevant employment law. If the investigation results in an employee being terminated you could find yourself facing legal action so your ultimate conclusion needs to be able to stand up in court.

There are a number of factors to consider when deciding whether to outsource your workplace investigation or conduct it in-house. Here are a few questions that can help you make the best decision.

Are current HR staff up to date with all relevant employment legislation?

The cornerstone of any workplace investigation needs to come down to whether or not there has been an infringement of the law, particularly in cases of bullying or harassment. Employment legislation is an ever changing field and HR staff in a busy organisation may not have time to keep up to date with every change as it occurs. Unfortunately a lack of updated understanding of the law could lead to significant implications if a decision is made. If an employee is terminated on the findings from an investigation and it later turns out that the termination was unlawful your organisation could face serious legal consequences.

Can internal staff perform an unbiased investigation?

Having personal knowledge of the parties involved can make it difficult for even the most professional of HR staff to conduct a thoroughly impartial investigation. Current employees may not feel comfortable talking openly to people they know, especially if they feel that there is already existing prejudice against them. In a larger organisation this may not be as big an issue as a small business where everyone knows each other, but it is worth taking into consideration when making a decision. Employees who feel they haven’t been treated fairly are more likely to complain or challenge the outcome and this could lead to further problems in the future.

How will an internal investigation be viewed by employees and the public?

If the allegations of misconduct and bullying involve senior management an internal investigation, especially if it finds in the senior employee’s favour, could be seen by employees and the public as biased and unfair. In some cases it could be beneficial to ensure that there are no grounds for employees to claim unjust treatment or have grounds to claim a cover up by hiring someone external who can be seen to be completely impartial. This can be particularly useful in the case of public sector or large organisations whose reputation could be damaged by accusations of partiality.

Deciding whether to use an external investigator or conduct an internal investigation will depend on a number of factors along with the scale and severity of the alleged harassment or misconduct. It’s essential that whatever you choose, your investigation is conducted in a professional and unbiased manner and any resulting action is compliant with employment legislation or you could find yourself facing further issues in the future.

Not sure whether or not you need an external investigator? Give us a call today for a confidential, no obligation discussion of your situation.

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.

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

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