Handling a Paranoid Response to Workplace Investigations

- Wednesday, June 21, 2017

In conducting workplace investigations, both the alleged victim and perpetrator and potentially even witnesses may have an intensely personal reaction to the accusations. But what happens if one of the people involved in a workplace investigation has a mental illness or otherwise suffers from poor mental health? 

In this situation, a workplace investigation can be perceived as a direct personal attack - for example, a complainant may feel that the mere fact of an investigation means that they are not taken seriously or believed in their allegations. A respondent to a complaint may feel vilified or victimised by having to respond to the claims at all. In these circumstances, it could be easy for paranoia to creep in during the investigative process. 

So what additional steps should a prudent employer take during the investigative process when dealing with an employee who struggles with their mental health? 

POTENTIAL CONSEQUENCES OF FAILING TO CONSIDER MENTAL HEALTH

The State of Workplace Mental Health in Australia report, released by TNS Australia and Beyond Blue, has found that 45% of all adult Australians will experience a mental health condition at one point in their lives. In addition, untreated mental illness costs Australian Workplaces almost $11 billion annually.  

This financial cost (calculated on the basis of absentee figures, 'presenteeism' where employees are physically present but not performing to their maximum capabilities, and compensation claims) is reason enough to take mental health in the workplace seriously, and to ensure that workplace investigations do not run roughshod over the rights of employees with mental health concerns. 

However, even more concerning is the potential for a poorly handled workplace investigation to exacerbate an employee's mental illness or even to cause a new psychological injury. 

It is crucial for employers to ensure that workplace investigations are conducted sensitively and have regard to any disclosed or hidden mental health issues suffered by employees. This is particularly the case given that it is an employer's legal obligation to ensure that workplaces are free from conduct which could reasonably be foreseen to cause injury, including psychological injury, to employees. A failure to do so can leave the employer exposed to a compensation claim.  

WHAT SHOULD AN EMPLOYER'S RESPONSE BE?

Employers must ensure that investigators don't dismiss signs of paranoia as an employee being 'silly' or simply difficult. 

It's important to recognise that the employee does genuinely feel under threat, without agreeing with them, and to lay out any evidence clearly. 

It can also be helpful to detail how the investigation will proceed to avoid the risk of misunderstandings, for example an employee deciding that more than a week has passed therefore an adverse finding must have been made against them. 

Honesty and fairness are key in any workplace investigation, but it is particularly important to demonstrate both when dealing with an employee who is feeling under attack. It's essential to remain patient, and work on building trust and rapport in interviews.  

Employees should also be able to access a support person of their choice to participate in any interviews or other formal steps of the investigation. 

Being available and following through on any actions that have been decided on, however minor, may also help lower a fearful employee's anxiety. 

If the initial complaint has caused or substantially contributed to an employee's poor mental health, and this has resulted in the employee receiving a medical certificate, an employer should consider not permitting the employee to return to work until the investigation has been resolved. Any decision along those lines should be made strictly in consultation with the employee's medical team and the employee themselves.  

    HOW WE CAN HELP

    Taking these simple steps will help to ensure that your staff do not feel victimised and do not become unduly paranoid or concerned about the investigative process and potential outcomes.  

    At WISE Workplace, we can help you navigate your way through the potential minefield of workplace investigations. We offer full investigation services if you prefer to outsource, and also training to assist you in running your own investigations.

    The Risk of Ignoring Reports of Sexual Abuse

    - Wednesday, May 31, 2017

    The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. 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, 

    This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. 

    Long gone are the days when a written complaint of such behaviour is needed. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

    Courage TO TELL 

    In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'

    SILENT DAMAGE

    Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 

    LISTEN OUT

    Busy employers can be tempted to argue that they can’t be everywhere at once. Although employers are certainly not blind to the potential for unacceptable behaviour, there can however be an built-in assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Matthews the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Matthews had two discussions with a representative of the employer was certainly sufficient grounds to say she provided notice about the offending conduct. 

    LINGERING PAIN

    The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered, as in Matthews, compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures to follow workplace health and safety procedures can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act; A complex and damaging array of legal and financial consequences indeed. 

    WORDS ARE ENOUGH 

    It is that failure to act that can cause so much preventable harm. At the moment when the Area Site Manager was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a serious breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as those faced by Ms Matthews. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

    ACT EARLY 

    The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

    For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website

    Bullying: I've Been Talking to HR but Nothing's Happening

    - Wednesday, May 24, 2017

    If you have been the victim of bullying, the HR department in your organisation is generally the first port of call for raising your concerns. 

    It can be mentally or emotionally challenging to make a complaint to HR. You may feel exposed or vulnerable because you are concerned that your complaint may not be believed, or that the person about whom you have made a complaint has been told that you have "dobbed" on them.

    Depending on the nature of your complaint, or the relationship of the HR personnel with the person or people about whom the complaint has been made, you may have concerns that a workplace investigation will not be conducted thoroughly or your grievance not taken seriously. In any event, your working life can become very uncertain after you have made a complaint to HR. 

    Taking a company issue to the HR team can also be a lengthy process, and it may feel like nothing is happening as time ticks by. But it's important to remember that much of the HR investigation will be taking place without you being directly aware of it. 

    Here is a brief look at how the process works.

    THE FIRST STEP

    After you have aired your grievance, it's important to try and remain focused and perform your job to the best of your ability. If you feel you are unable to do so, it may be best to take a few days off work on sick leave until you feel stronger, and better able to approach your tasks or face your co-workers.    

    THE COMPLAINT PROCESS 

    There are certain steps which a diligent HR team must follow once a complaint has been brought to their attention. Initially, the complaint must be assessed. 

    Next, the HR department will meet with relevant senior staff, who must make a decision as to what the appropriate follow-up actions will be.

    Depending on the severity of the alleged behaviour, this may involve HR having a quiet word to the other person or the initiation of formal disciplinary proceedings. The latter is more likely to be the case if the person being complained about is already being performance-managed in relation to prior issues. 

    Be aware that it may well take HR a week or even longer to finalise the preliminary investigation process, and make and communicate a decision on the best way forward. 

    Privacy obligations to the other employees involved may also mean that you are not entitled to know the full details of what further action will be taken.

    WHAT CAN HR TELL YOU?

    At a minimum, HR is required to advise you of: 

    • The fact that it has received your complaint, is taking it seriously and is conducting appropriate levels of investigation. 
    • What Employee Assistance Programs are available. 
    • Who the liaison person for these programs is (if your organisation has one) and how to contact them. 

    WHAT IF THERE IS A FORMAL WORKPLACE INVESTIGATION? 

    For serious complaints, your company may engage the services of a third party workplace investigator. 

    If this occurs, then you are entitled to: 

    • Be one of the first people interviewed if a detailed investigation is commenced. 
    • Receive a copy of your interview transcript or detailed statement, which you should sign if you agree that it is an accurate record of what you told HR

    If your complaint is sufficiently serious, then the respondent facing your allegations will be advised of the exact complaints against them. Although they are also likely to be interviewed, you are not entitled to a copy of their transcript or statement. If you are concerned about any bias, however, be aware that their interview will be recorded.

    Once these steps have been finalised, the investigator will draft a report for the review and consideration of the HR department. That report (hopefully completed within a timeframe of less than three weeks) will then be provided to the relevant decision-makers within your organisation for a final determination. 

    You will generally be advised that the investigation has been completed, what the findings are, and of any further action steps as they concern you. But in most cases, you will not be specifically advised of any punishment to be meted out to the respondent. 

    BE PREPARED FOR WORKPLACE CHANGES

    If your complaint is serious, you may be asked to move or transfer offices or departments. This is not a punishment, but is designed to ensure that your wellbeing is protected, generally by reducing the likelihood of any contact occurring between you and the respondent. 

    Try not to respond by being offended or otherwise feeling indignant. All businesses, regardless of their size, have legal obligations to all employees. Your employer cannot simply fire workers who have issues with other employees, and other considerations may mean that the respondent cannot be moved. Bear in mind that your organisation is simply trying to find the best outcome for all concerned. 

    If you are nervous about making a complaint or otherwise wish to obtain guidance on how whistleblowers should be dealt with, contact WISE Workplace today for detailed assistance with all aspects of the workplace investigation process.