How to Navigate Counter Allegations in Investigations

Natasha Kennedy-Read and Vince Scopelliti - Friday, February 14, 2020

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of counter allegations means handling each complaint separately, being mindful of procedural fairness and adhering to the civil standard of proof. 

Divide ALLEGATIONS into separate incidents

It is important not to conflate cause and effect when it comes to counter allegations. If the allegation is that person A slapped person B, who, according to A, retaliated by stealing A’s smartphone, these two allegations must be investigated separately.

It may be that that person B had nothing to do with the smartphone’s disappearance, or the slap never happened. 

By looking at them as two unrelated incidents, investigators will not ‘miss’ important evidence, such as A accidentally leaving their phone in a meeting room.

keep procedural fairness top of mind 

The smartphone theft/disappearance may only come up when B is being investigated for the alleged slap. The alleged wrongdoer makes the counter claim in an interview that was up to that point unknown.

In effect, this means there are two allegations under investigation. Depending on the circumstances, this new information may require the interview to be suspended while further inquiries are made by the investigator. 

While it may be tempting to view the counter allegation as 'tit for tat' failing to investigate this new complaint could be viewed by a court or tribunal as a denial of procedural fairness by the employer.

Many unfair dismissal claims are successful because the employer in question failed to afford procedural fairness to the alleged wrongdoer.

The civil standard of proof

While investigating allegations and counter allegations, compartmentalising each alleged incident, its timings and events ensures impartiality and clarity.

This means taking care with unwitnessed and testimonial evidence (hearsay). Vivid descriptions of events may sometimes be compelling yet have no bearing on actual events. Finding an impartial witness to an event can short-circuit this problem, but it can be difficult. Just because person C saw B running from the bathroom crying does not mean the cause was a slap from A. 

Investigators should apply the civil standard of proof when assessing evidence. This means that for an allegation to be substantiated, the evidence must establish that it is more probable than not that the incident occurred.

The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: 

  • Relevance of the evidence to the allegations. 
  • Seriousness of the allegations.
  • Inherent probability of an event occurring.
  • Gravity of the consequences flowing from a finding.
  • The likelihood that the required standard of proof will be obtained.

Employers and management must at all times remain unbiased. Just because a counter allegation is made during an investigation does not mean it lacks substance. It may be that the counter allegation carries more weight and is of a more serious nature than the initial claim.

It can be challenging for investigators when presented with counter allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, as well as formal qualifications such as Certificate IV and Diploma in Government Investigations.



Racial Discrimination at Work

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 05, 2020

We are all familiar with the more obvious signs of workplace discrimination; but with targeted racism and xenophobia spreading faster than the Coronavirus, it is vital to be aware of the more nuanced and subtle acts of discrimination at work. 

Queensland has seen MP Duncan Pegg slam a phoney health department bulletin that warned online communities to avoid areas with high proportions of Chinese residents. In France, East-Asian communities began the now global #imnotavirus campaign, highlighting discriminatory comments from “are you dangerous if you cough?” to “stop eating wild animals then infecting everyone around you.” 

This problem is not new. In Canada in 2003, a similar wave of outbreak-fuelled xenophobia cost Toronto an estimated C$1bn, prompting public health officials to remind Canadians not to let ignorance triumph over respect in their communities.  

This viral endemic has already had a global impact on small businesses, schools and communities around the world, and workplaces are far from immune. Queensland surgeon Dr Rhea Liang said that “misinformation” on the virus has led to racially motivated remarks such as were made to her at work last week. Dr Liang’s patient refused her routine handshake, saying “you might have coronavirus” in front of her colleagues and several medical students. 

Most Australian workers are not at significant risk of infection, and employers and employees alike should be aware of the legal pitfalls they may encounter, and harm they may inflict, in attempts to protect themselves from the virus. In Dr Liang’s case, her colleagues were immediately supportive, but she worries about more vulnerable people exposed to racism that results from the stereotyping. 

The Racial Discrimination Act 1975 (RDA) makes it unlawful to discriminate against a person because of his or her race, colour, descent, national or ethnic origin or immigrant status. This extends to expressions of racial hatred against another person, and discriminating in the provision of services, entertainment and facilities or on less favourable terms and conditions. 

WHAT Does this mean for you?

We are all familiar with the obvious signs of racial or xenophobic discrimination, like slurs, segregation, targeted aggression and spreading racist rumours. Refusing to serve or deterring customers on the basis of their nationality or race, out of fear of Coronavirus is also an obvious and unlawful form of discrimination. However as a modern employer, it’s important to recognise the more subtle and nuanced forms of racism which can go unnoticed, and therefore be more damaging than overt behaviours. 

It is likely that racism at work is vastly underreported. 20% of Australians experience racism every year, but the Australian Human Rights Commission receives just several hundred racial discrimination complaints annually. 
More subtle and dangerous examples of discrimination include:

  • Xenophobic or racist ostracism of, or hostility towards, colleagues or customers in their workplace.
  • Avoiding contact or proximity with, or hostile body language towards people on the basis of their skin colour or nationality 
  • Unintentional or subconscious behaviour 

Subconscious biases and assumptions, even with positive intentions regarding safety or risk to others can all be considered racist behaviour. 

Prevention is always better than cure, and as an employer, workplace culture starts with you. If you are worried about your workplace culture, contact us to organise a Cultural Review. 

SO, how can i prevent racial discrimination from infiltrating my workplace? 

Education: 

Education on racial discrimination at work empowers employee understanding, sensitivity and conversation. Training programs are an important tool for eliminating more subtle discriminatory behaviours, by highlighting the nuanced nature of racial and cultural experience and necessity for sensitivity, and avoiding unintentional or subconscious infliction of harm. This can not only reduce incidences of discrimination but also create a positive culture where employees support each other, demonstrate and monitor their own standards of conduct and can minimise the emotional and psychological impact of external harm to their peers.

Conversation:

Creating space for productive conversations about race and discrimination at work is vital to a positive workplace culture. To encourage employee participation and make the most of these conversations, frame them in a positive and constructive way.

Outline the purpose and goals of the conversations from the outset:

  • Discuss views and experiences relating to racism in a non-judgmental and safe environment 
  • Learn from each other’s experiences and gain understanding that people experience racism in different ways
  • Reflect on intention and how we can unintentionally cause racial harm to our peers or colleagues 
  • Identify opportunities for growth within the organisation and develop systems for positive change 

Be prepared to support employees who may lack understanding of the real prevalence of racism and need for proper attention. People who are not part of a minority group are likely to have less experience of racism, so the nuanced nature of modern discrimination might come as a surprise. Constructive conversations can help these team members challenge their preconceptions, and help them to approach the issues with awareness and understanding. 

For tailored, expert and neutral third-party training programs or conversational facilitators to improve your workplace culture and tackle complex issues such as racial or xenophobic discrimination, contact WISE Workplace today. Working with an experienced facilitator or training provider such as WISE minimises the risk of tricky power imbalances countering your efforts to eliminate racial discrimination at work. 




Unfair Dismissal: Case Studies from the FWC

Vince Scopelliti - Wednesday, January 29, 2020

Perhaps one of the most vexed issues employers face is how to terminate employees without exposing the organisation to the risk of a successful unfair dismissal action. 

In light of the 15 January updates to the Fair Work Commission (FWC) Unfair Dismissals Benchbook, these two unfair dismissal cases at the FWC demonstrate the importance of employers being on safe legal ground before dismissing an employee. This is particularly important in circumstances where successful actions could result in a significant compensatory payment, or the employer being forced to re-hire a terminated staff member.  

1. The sleeping ferry master

In the decision of Sclater v Transdev Harbour City Ferries Pty Ltd [2019] FWC 7968, it was found that a ferry master who fell asleep during his shift had been appropriately terminated and not unfairly dismissed. 

In this matter, Mr Sclater was discovered to be asleep on a bench in the wheelhouse during the course of his shift travelling from the Pyrmont Bay Wharf to McMahons Point Wharf in Sydney. Instead of Mr Sclater, the ship’s engineer Mr Drygajlo was manning the helm. 

It was subsequently discovered that Mr Sclater, who was on numerous different types of medication due to a (disclosed and medically cleared) heart condition, had been taking a cough medicine for approximately a week. 

Despite warnings regarding potential drowsiness, Mr Sclater claimed not to have noticed that part of the label and had suffered no ill effects. However, on the date of Mr Sclater’s transgression, he had forgotten to take his heart medication but remembered to take the cough syrup. As a result, Mr Sclater suddenly felt extremely drowsy and sat down to “close his eyes”. By his own estimation, he was only unconscious for about five minutes.

The employer, Transdev, argued that Mr Sclater had both breached the company’s Drug and Alcohol Policy and had given dishonest evidence about whether he had in fact been asleep, and for how long. Although the FWC did not find any dishonesty in Mr Sclater’s evidence regarding how long he had been asleep, it was concluded that he had breached the relevant policy. 

This was because Mr Sclater: 

  • Did not obtain proper advice from the pharmacist about contraindications with his existing medicine and the cough syrup.
  • Exceeded the prescribed dosage of the cough medicine.
  • Did not read the information about the potential side effects. 

Ultimately, the FWC determined that, given Mr Sclater’s role as ferry master, there was no option but for him to remain fully alert at all times when on duty. His failure to do so in the circumstances meant that he had been validly dismissed.

2. Beers before work

By contrast, in the matter of Morcos v Serco Australia Pty Ltd [2019] FWC 7675, Mr Morcos was reinstated to his employment after being found to have been unfairly dismissed. 

Employed at the Villawood Detention Centre, Mr Morcos was on a rostered day off and had consumed two beers when he received a telephone call and was asked to come in for a shift. He agreed, believing that his blood alcohol concentration would have returned to 0.00 before his shift commenced. However, following a random alcohol test at work, Mr Morcos recorded two readings of 0.037 and 0.032. He was sent home (notably by driving his car!). 

Mr Morcos worked one further shift but was then terminated for breaches of the Drug and Alcohol Policy. 
The FWC found in Mr Morcos’ favour, however, noting that:

  • A blood alcohol reading between 0 and 0.005 could (and at that workplace previously had) result in a written warning and not an immediate termination. 
  • Mr Morcos had consumed a reasonable amount of alcohol on a rostered day off, believing that he would not be required to work after consuming the beers.
  • Mr Morcos was allowed to work the next day for an entire shift and was not subjected to alcohol testing on that occasion. 

The FWC therefore concluded that the nature of Mr Morcos’ alleged misconduct was not sufficiently serious to warrant termination. It ordered the employer to reinstate Mr Morcos to his former role. 

Employers, are you facing an unfair dismissal allegation? WISE investigators are experts in this field. They have years of experience in undertaking even the most complex workplace investigations, and are able to ensure your investigation is fair and legally sound. If your organisation needs assistance with a workplace investigation, WISE provides full as well as supported investigation services.

Whistleblowing in 2020: Is Your Organisation Ready?

Vince Scopelliti - Thursday, January 23, 2020

The concept of whistleblowing was once frowned upon, or at the very least looked upon with trepidation. However, in recent years, the value of promoting whistleblowing as an acceptable way to improve corporate regulatory compliance and culture has been demonstrated. In this changing landscape, organisations are embracing whistleblowing - and many also have new obligations to comply with. 

Is your organisation ready for whistleblowing in 2020? Let's look at who can be a whistleblower; who is authorised to receive disclosures; and which organisations must have a whistleblower platform in place. 

What is whistleblowing?

Whistleblowers are individuals with some connection to an organisation, who choose to report corporate misconduct or illegal activities. 

Legislation, including new legislation which came into force on 1 July 2019, provides extended rights and protections to whistleblowers. Ultimately, the intent of the legislation is to ensure that whistleblowers are protected against reprisals, legal action, or general detriment, such as disciplinary action taken by the employer. 

Whistleblower protection may be afforded to various categories of people, including: 

  • Current employees of a company (or a related company)
  • The spouses or relatives of employees 
  • Officers of a company 
  • Contractors who have dealt with the company (potentially including volunteers)
  • General associates of the company

Whistleblowing also includes public interest disclosures. An example of a public interest disclosure might be an employee making a report about a bank which has been consistently charging members fees for no service. These apply in circumstances where a previous report has been made to ASIC or APRA and not actioned within 90 days, and the whistleblower is of the view that the information is of such importance to the public interest that it would be worthwhile reporting concerns to a journalist or a parliamentarian. 

Alternatively, emergency disclosures may be made if concerned parties have reasonable grounds to believe that the matters to be reported concern substantial or imminent danger to health and safety of people or the environment. 

how the disclosure process works

Disclosure about misconduct may be made anonymously, but must be reported to a specific group of people, including: 

  • Directors, company officers or senior managers
  • Auditors of the company 
  • Actuaries associated with the company 
  • A person specifically authorised to receive disclosures (generally a Human Resources officer) 
  • Regulatory authorities such as ASIC or APRA
  • Legal practitioners

Concerns can be reported internally using pre-determined organisational systems such as phone or online reporting. At the very least, an organisation should publish its whistleblowing policy and identify the people who are entitled to receive reports. 

Within a company, those authorised to receive disclosures must act on disclosures by investigating and protecting whistleblowers. 

WHY IS A WHISTLEBLOWING PLATFORM IMPORTANT?

The new legislation means that all public companies, large proprietary companies and corporate trustees of superannuation funds must have a whistleblower policy from January 1, 2020. Large proprietary companies are classed as those that have a consolidated annual revenue of at least $25 million, consolidated gross assets of at least $12.5 million or at least 50 employees.  

In addition to the legislative requirements, there are reasons why all organisations should have a strong platform for whistleblowing. 

These include increasing public and employee confidence in the desire of the organisation to “do the right thing”, and ensuring that senior personnel are safe in the knowledge that, if anybody is committing wrongdoing, staff and related persons can be confident to report those matters without fear of reprisals. 

One of the most effective ways to deal with whistleblowers is to set up an external hotline. This means that reports can be made anonymously. People can avoid potential embarrassment or concerns about making a report in circumstances where they potentially see the people whose conduct they are reporting on a daily basis.

WISE is a leading provider of whistleblowing services in Australia, offering organisations a secure service known as ‘Grapevine’ for staff to report concerns. 

Grapevine allows for anonymous reporting via phone call or online report. Reporters are enabled to provide supporting evidence, and can also choose whether to remain anonymous or leave their contact details. Each report is assigned a case number so it can be tracked throughout the whistleblowing and assessment process. Reports are reviewed by a highly trained and experienced team, and the organisation's nominated contact person is notified within 24 hours. Updates are available online. Depending on the level of service, the Grapevine team can also follow up and take action according to an organisation's whistleblower policy.

For more information on complying with whistleblower legislation, please download our free whistleblowing whitepaper which can answer your questions regarding the changes. If you would like an obligation-free cost estimate to implement a confidential hotline in your workplace, contact us here.

Managing Misconduct over the Holidays

Vince Scopelliti - Wednesday, December 18, 2019

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. 

When are employees still 'at work'?

A workplace is where people perform their jobs, undertaking their contracted hours of work. However, a work function held outside the office and outside regular business hours, is considered to be an extension of the workplace.

A general rule of thumb is, that if an event is organised and paid for by an employer, it's officially sanctioned. Liability therefore remains with the employer for any misconduct that occurs. This is likely to be the case, regardless of how many pre-event warnings have been issued to staff, and how many times staff have been reminded of the applicable policies and codes of conduct.

It is also important to keep in mind that employers may bear third party liability, to family members who attend a staff Christmas party, functions held in public venues (where people other than staff could get injured) and in circumstances where a worker causes injury to another person, when leaving an event in a state of intoxication.

defining misconduct in the workplace

Misconduct over the holiday period generally refers to inappropriate behaviour such as discrimination, workplace harassment and bullying, or sexual harassment. This type of behaviour is often associated with the Christmas party, where people have consumed alcohol and have lowered inhibitions.

It is important for employers to remember that the definition of sexual harassment, for example, includes but is not limited to, conduct of a sexual nature which is offensive, humiliating or embarrassing to the person complaining of the behaviour. Crucially, it is irrelevant if the behaviour was intended to offend - it is the opinion of the "victim" and not the "perpetrator" which is relevant.

Other types of misconduct include staff pulling "sickies" due to hangovers, or poor behaviour such as sharing inappropriate stories or having general disagreements between co-workers boil over.  

why is there a prevalence of misconduct over the holidays?

As noted, there is often an increased incidence of misconduct in circumstances where staff are consuming (potentially excessive) amounts of alcohol and otherwise lowering inhibitions.

There is also a general misapprehension amongst employees to the effect that a Christmas party is not considered to be related to employment - which is not the case.

This is part of the reason why employers should also give serious consideration as to whether they wish to gift alcohol, either to their staff or to clients or business associates. While alcohol is a convenient and often appreciated gift, it can create an impression that an employer is not concerned about responsible service of alcohol.

mitigating the risk of misconduct

There are numerous ways that employers can mitigate the risk of misconduct during the holidays. 

Before a function, employers should take steps to remind staff (generally via an email) that it is to be treated as a workplace event, and therefore the usual policies and procedures remain in place. It is also timely to recirculate documents such as code of conduct, sexual harassment or bullying policies and procedures.

During the work function, employers should consider ensuring that at least one (if not more) senior personnel are in a position to remind staff who have over-consumed alcohol, that they should stop drinking and/or perhaps even leave the event.

Similarly, companies should ensure that there are sufficient taxi vouchers or other safe methods of transport home, for all employees who want them. This ensures that the business cannot be responsible for any employees who injure themselves and/or others on the way from the party.

If allegations of misconduct do arise from a Christmas function, employers must ensure that due process and fair procedures are implemented. This includes taking into account the fact that staff may be on leave or have applied to be on leave.

Although the investigative process should not be unnecessarily drawn out, staff who have pre-booked leave, should not be prejudiced by the fact that they are unavailable at that time of year. They should have the same opportunity to prepare a response to allegations as at any other time of year.

Managing staff and keeping in touch with staff over a quieter holiday period can be a challenge. If you need assistance reviewing and managing staff behaviour in your workplace, WISE Workplace provides expert external investigation services to meet your needs. 

How to Prevent Sexual Harassment in the Workplace

Vince Scopelliti - Wednesday, October 16, 2019

Unfortunately, dealing with allegations of sexual harassment in the workplace is an issue for many employers. Sexual harassment can take many forms, and cases are rarely "open and shut".

Once allegations of sexual harassment or misconduct have been made, they must be appropriately investigated and dealt with. However, prevention is always better than cure.

Let's take a look at employer obligations, the scale of the problem and how employers can help prevent sexual harassment in the workplace.

obligation to provide a safe workplace 

Employers are required by law to provide a safe workplace for all employees. This is enshrined in the workplace health and safety legislation throughout Australia (for example, s19 of the Workplace Health and Safety Act 2011 (NSW)).

Legislation requires employers to provide for physical safety, for example, by preventing unsafe worksite practices which could cause injuries to employees. It also extends to ensuring that employees are protected against physical and psychological harm caused by sexual harassment or assault, and mental harm (such as could be caused by bullying or harassment).

The facts - workplace sexual harassment

A 2018 sexual harassment study conducted by the Australian Human Rights Commission, found that one in three Australian workers claim to have been sexually harassed in the workplace in the past five years. This figure has increased from one in five workers in 2012, and one in ten in 2003. Of course, this may be due to employees becoming more aware of what sexual harassment is and what their rights are in relation to reporting or taking steps to report and prevent it. However, it is still a worrying statistic.

Interestingly, although sexual harassment affects both genders (with 26% of men and 39% of women interviewed reporting experiences of sexual harassment), those most likely to be harassed in the workplace are aged between 18 and 29. Moreover, despite the fairly equal gender split in victimology, the overwhelming majority (80%) of harassers are men.

Tips for preventing sexual harassment in the workplace 

There are a number of strategies that can help employers nip sexual harassment in the bud. These include:

  • Management support. It is essential that all levels of management, but particularly the highest levels of the executive team, embrace an anti-harassment culture. This is particularly important when one considers that, at least anecdotally, there may be a perception that sexual victimisation is a top-down phenomenon. It is important for management to demonstrate that no type of sexual harassment will be tolerated in the workplace. Similarly, the executives of any workplace must demonstrate that they will deal swiftly and appropriately with those who have been found to have engaged in sexual harassment. Ultimately, it is essential that the entire business receives the message that sexual victimisation will not be tolerated on any level. This also means that appropriate conduct by managers should always be encouraged.
  • Creation of a sexual harassment policy. A clear, detailed and easily accessible sexual harassment policy should be created, setting out exactly what the company's position on such harassment is. This should include the specific behaviours that will constitute sexual harassment and will not be tolerated. It must also be widely circulated amongst staff, ideally with a sign-off required confirming that staff have read and understood the policy.
  • Provision of training. Again, this should be rolled out company-wide, and conducted on a regular basis. It is important that there is general awareness, not only of what is defined to be sexual harassment, but an understanding of what rights and remedies are available to those who feel that they have been a victim of this type of harassment.
  • Encouraging a positive workplace environment. By implementing the above steps, a positive environment will be fostered, which will also encourage staff at all levels to be proactive about preventing sexual harassment or calling it out when it occurs.

the need for employer action

In addition to the general requirement to provide safe working conditions for staff, there are other positive obligations on employers in relation to sexual harassment.

For example, in Victoria, the Equal Opportunity Act 2010 (VIC) imposes a positive duty on employers to prevent any sort of sexual harassment from occurring.

Similarly, employers Australia-wide may be deemed to be vicariously liable for the conduct of their employees, if it can be demonstrated that they did not take reasonable steps to prevent sexual harassment (per the Sex Discrimination Act 1984 (Cth)).

In order to protect the business, it is crucial that immediate and appropriate action by way of response to a sexual harassment notification occurs. Training managers and staff about sexual harassment and the company's stance on it is vital.

Sexual harassment in the workplace continues to be a great concern for both employees and employers. Taking active steps and educating staff is crucial in reducing the prevalence of sexual harassment in the workplace. Accordingly, WISE Workplace offers employers training programs to address and investigate workplace sexual harassment, as well as independent investigation services to review such behaviours. 


Police Involvement in Workplace Investigations

Vince Scopelliti - Wednesday, September 25, 2019

On occasion, police will become involved and/or need to be involved in the allegations from a workplace matter. In this situation, it's important for employers to know what their obligations are, and to be aware of some of the challenges that can arise. 

So, let's take a look at when police are or may need to be called in and what should happen once they are. 

WHAT matters require the police? 

Generally speaking, any allegation of a serious or potentially criminal nature necessitates the involvement of police. This includes allegations of physical assault, sexual assault, stalking, child abuse, significant fraud or theft. 

In the event that a complaint could have criminal implications, it is always a good idea to get the police involved as soon as possible. This helps ensure that any police investigation is not hampered by destroyed evidence, ongoing delays or similar interference. 

the employer's obligations

If police have become involved in a workplace matter, the police investigation takes precedence over the internal one. 

However, while the police investigation does take priority, an employer must still carry out an internal investigation. This is to afford the employee who is the subject of the investigation due process and procedural fairness. 

The internal investigation and a police investigation must both be treated entirely separately, but run in tandem. The internal investigation must be managed without impeding the police investigation. It is essential for the employer to communicate closely with police and provide assistance wherever required.

It is also important for an employer to remember that one of their paramount obligations is to provide a safe working environment for staff. This means that if there have been serious allegations such as physical or sexual abuse, the complainant and respondent must be separated in the workplace. Generally, staff against whom allegations have been made should be suspended on full pay, pending the outcome of the police investigation. 

the challenges involved 

It is likely that the police investigation will require the use of resources that would otherwise be engaged in conducting the internal investigation. For this reason, it can be difficult to actively investigate a workplace matter internally while the police are undertaking their own investigation. 

It can also be difficult for employers to balance the need to assist police with their legal obligations to their employees.

a case in point

This balancing act is demonstrated in the matter of Wong v Taitung Australia Pty Ltd [2016] FWC 7982. In this matter, Mr Wong, an employee who was accused of theft, named several other employees allegedly involved in a criminal enterprise. 

Police suggested that the employer not take disciplinary action in relation to the employees, in order to obtain and preserve the evidence against them. This meant that the employer permitted Mr Wong to continue working with no warnings, despite having sufficient evidence to conduct a summary dismissal.

The police were unable to obtain sufficient evidence to charge him, however he was ultimately terminated. However, the Fair Work Commission found that the summary dismissal of Mr Wong was unjust in the circumstances. 

The added factor of police involvement while undertaking internal workplace investigations presents unique challenges for employers. The balancing of police intervention into serious criminal allegations, with the strict employment principles and procedures, is both challenging and essential to ensure employers' actions are reasonable. WISE provides external investigation services as well as training in conducting investigations necessary to manage the workplace-police dynamic. 

How to Move Forward After a Workplace Investigation

Vince Scopelliti - Wednesday, September 11, 2019

A workplace investigation can be a traumatic and emotional event for everyone involved. 

Let's take a look at how an organisation can move forward after a workplace investigation, regardless of whether the complaint has upheld or if any disciplinary action has been taken. 

WHAT happens when an investigation is concluded? 

After the investigative process has finished it is important for all parties involved to be updated on the outcome. This includes the complainant, the accused and potentially in some circumstances, witnesses who have been heavily involved in the process. It is important that the parties are kept in the loop and do not find out from each other or another source, that the investigation has concluded. 

Any concerns arising out of the investigative process and findings which are raised by the parties, should also be dealt with. This may include questions of how confidentiality is to be maintained; details of how any disciplinary action will be implemented and work in practice; concerns about how the parties are to continue to work together (if possible); and how an organisation will be able to support all of the parties affected by the investigation findings and outcomes. 

Once these concerns have been identified and addressed to the best of management's abilities, the outcome of the investigation should not be shared with the workplace generally. However should be communicated with the applicable parties, where appropriate to do so, that does not breach any parties confidentiality.  

Having a communication strategy will avoid rumour or conjecture.   

what are some common complications? 

It may be tempting for management not to share the outcome of an investigation with staff. This approach is usually taken in an effort to avoid breaching confidentiality or to squash gossip. 

However, poor communication generally results in a growing mistrust of management - especially if a decision is made to terminate a respondent's employment. If they are simply there one day and gone the next, this can have a negative impact on staff confidence levels. 

Communication is particularly crucial if the investigation has led to changes in the management structure. These changes could occur, for example, because there is a termination of employment in a team, or it has become apparent that the 'old' structure isn't efficient. These types of changes require extremely good communication at all times. 

Similarly, the temptation for staff to breach confidentiality and gossip is extreme after an investigation. This is especially so if the outcome is perceived as being unfair or inappropriate. In order to minimise the spread of gossip, management should ensure that as much information that is appropriate and maintains confidentiality, is distributed to the business in a timely fashion. All parties involved in the investigation, regardless of the nature of their involvement, should be reminded of their confidentiality obligations and the potential consequences of breaching them. 

Another common post-investigation outcome is the desire for retribution. This may occur regardless of what the findings were, because for example a peer may consider that a colleague has been treated unfairly. Alternatively, a colleague may form the view that the investigation has not been through or harsh enough or has come to the wrong conclusion. Regardless of the motivation, management must be cautious to avoid and identify any retribution and manage any issues that arise swiftly if this behaviour occurs. 

post-investigation strategies 

Even if an investigation has been run thoroughly and 'cleanly', it is important for post-investigation strategies to be in place to avoid potentially negative consequences. 

As noted, these strategies include excellent communication on a 'top down' basis. This is to minimise gossip and to ensure that confidence in management is restored. 

Additional strategies may include arranging mediation for the involved parties, to ensure that any concerns are voiced before an independent third party. 

The post-investigative period is also a good time for the organisation to pull together as a whole and discuss workplace values and standards. This can be an opportunity to reflect on the nature of the allegations (to the extent that they are disclosable) and to reaffirm the organisation's approach towards such behaviours.

If the alleged behaviour is particularly offensive, and strict action was taken as a result, this can also serve as a timely reminder for the organisation to reinforce and remind all staff, that code of conduct or criminal breaches are taken extremely seriously. 

Similarly, any changes in company culture or procedures that are clearly required in the wake of the investigation, can best be introduced in this timeframe. 

If you need effective resolution of workplace disputes following an investigation, WISE Workplace provides advice coupled with mediation services on how to best resolve post-investigation concerns.

How and When to Report Workplace Bullying

Vince Scopelliti - Wednesday, August 28, 2019

Workplace bullying can sometimes be difficult to identify. After all, people from many different walks of life are thrown together in a working environment, and this will often result in personality clashes and natural disagreements. Not everybody in the office will be friends with each other. 

So how can you tell when something has strayed into the area of workplace bullying? And how do you know when to deal with it formally? 

what is workplace bullying?

The simple definition of bullying in the workplace is 'repeated and unreasonable behaviour' directed towards an individual or a group of workers that is ultimately posing a risk to their health and/or safety. 

This may mean pranks or 'hazing', which threaten the physical health and/or safety of an individual can constitute bullying. Other types of bullying include psychological harm caused by aggressive behaviour, abusive comments, unjustified criticism, or subtler behaviours, such as excluding and isolating colleagues from activities in the workplace. 

In 2017, Safe Work Australia published statistics which showed that 39% of all mental disorder claims arising from the workplace, involved harassment or bullying. However not everything which is unpleasant or creates conflict in the workplace constitutes bullying. 

Management staff are entitled to engage in 'reasonable management action', intended to deal with workplace issues. Similarly, disagreements between co-workers which are appropriately managed or resolved need not constitute workplace bullying. 

On the other side of the coin, conduct which involves the victimisation of a person in a way that constitutes discrimination, is a separate category of workplace offence. Although clearly very serious, allegations of discrimination should not be conflated with the concept of workplace bullying. 

when should bullying be reported?

It is clear that the effects of workplace bullying can be far reaching. Bullying not only affects the mental and physical health of the employees directly involved, but can impose additional stressors on all staff and create disharmony in the workplace. 

A good litmus test for determining whether behaviours should be reported or formally dealt with as workplace bullying, is if the behaviours occur repeatedly. If the behaviour is repeated this suggests a wilful or reckless disregard for the needs of the bullied colleague and demonstrates a clear pattern of poor and inappropriate behaviour. 

In any event, reporting matters which make the workplace a less pleasant environment, is always a prudent course of action.

how to report workplace bullying

There are many different ways to report bullying in the workplace. Perhaps the simplest way is by reporting it directly to a supervisor, who then has a duty to pass the information further up the line. 

Of course, this can be problematic if the allegations of bullying involve the supervisor in question or someone even further up the hierarchy of an organisation. Alternatively, a report may be made to a Health and Safety Officer, or directly to the Human Resources team. As a last resort an individual could report the conduct to the Fair Work Commission, or the appropriate state agency such as SafeWork NSW, Victoria, SA etc. 

Depending on the nature and seriousness of the allegations, it may be appropriate to make the report in writing. 

There may well be circumstances, however, where it is preferable to make an anonymous report or otherwise not become too involved in the formal process. In these circumstances, a whistleblowing action may be the more appropriate way to make a disclosure. 

One of the key advantages of whistleblowing is that the bullying behaviours can be reported to a greater selection of people, including senior managers, officers of the company or any other person authorised to receive 'protected disclosures'. This can lessen any discomfort about reporting direct supervisors. The process is also confidential, and reporting can occur anonymously, which is likely to assist in the event of concerns about potential reprisals. 

If there are concerns about bullying in your workplace, there are simple and active measures that can be taken to address any concerns reported. WISE Workplace is an expert within the field of workplace bullying and offers organisations both investigation and whistleblowing services.  

Ruling on Anonymous Social Posts a Warning for Employees

Vince Scopelliti - Wednesday, August 21, 2019

In the highly-anticipated decision of Comcare v Banerji, the High Court has found it is not unconstitutional for the federal government to restrict the rights of public servants to express their political views in a public forum. 

So what does this decision mean for employees, freedom of political communication and the right to free speech? 

The facts of the matter

The respondent in Comcare v Banerji [2019] HCA 23, Ms Michaela Banerji, was employed by the Department of Immigration and Citizenship until September 2013. At this time, her employment was terminated for having breached the Australian Public Service's social media policy and code of conduct. 

Specifically, it was claimed that Ms Banerji had 'tweeted' several thousand posts under an anonymous handle. Those posts commented explicitly on the federal government; Australian immigration policy; ministers; opposition spokespeople and her specific department. 

Following her dismissal, Ms Banerji pursued a number of legal proceedings, claiming that her termination had breached her implied right to freedom of political communication. 

Ms Banerji was successful in her argument before the Administrative Appeals Tribunal, which held that the anonymity of her Twitter account meant that she could not be identified as a public servant and the policy of her employer had been applied too strictly. 

However, this decision of the AAT was ultimately overturned on appeal to the High Court.

the findings of the high court

In determining in favour of Ms Banerji's employer, the High Court explicitly found that, although the Australian Constitution provides a freedom of political communication, this 'is not a personal right of free speech'.

It was further concluded that, anonymous or not, the tweets threatened the 'integrity and reputation' of the Australian Public Service. Moreover, it was of relevance that Ms Banerji was a public servant, which would become topical if her anonymity was ever threatened.  

the wider implications of the case

As stated in the Administrative Appeals Tribunal's decision, placing such significant restrictions on - anonymous - public servants could be considered akin to dealing with 'thoughtcrime'. This means that society is imposing rules and punishments on people who have 'done nothing' other than have differing opinions. 

Ultimately, the decision means that employees, whether in the public or private spheres must carefully consider expressing opinions, be they political or otherwise, which differ from those of their employer. It is clearly unwise to post controversial personal opinions under a readily identifiable name, which could in turn identify and embarrass a worker's employer and lead to a conclusion that the opinions have caused damage to an employer's reputation for example. However, of some concern is the decision of the High Court in applying the Australian Public Service's standard and code of conduct requirements to anonymous tweets. 

This decision is particularly topical given the controversy over the recent legal proceedings involving Rugby Australia and Israel Folau, a devout Christian, 'cut and pasted' text on social media about homosexuality and hell. Given Folau's high profile as a rugby player, his employer Rugby Australia, terminated his employment. Folau is pursuing legal proceedings, arguing that his religious freedom has been interfered with as a result of his termination. 

Although the nature of the defence differs from that put forward by Ms Banerji, the ultimate concept is the same: private individuals are putting forward commentary on personal beliefs and opinions, but on a public forum, and are being penalised by losing their employment as a result. Rugby Australia maintains that Folau's breaches of conduct occurred repeatedly, and that he had been warned on several prior occasions about posting such commentary on social media. 

While it is not yet known what the outcome will be for Folau, it is clear that these cases have wide-ranging implications for organisations and employees. 

WISE Workplace is highly experienced at conducting investigations and the surrounding complexities of contemporary legal issues. If your organisation holds concerns regarding inappropriate social media use, WISE can conduct investigations and analysis of electronic evidence to establish defensible findings.