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 to Deal with Workplace Conflict

Vince Scopelliti - Wednesday, September 04, 2019

Any sphere in which humans interact with each other is likely to involve certain levels of conflict. This is certainly the case in the workplace, where employees are required to spend significant amounts of time with people they may not otherwise choose to be involved with. 

Although workplace conflict is unavoidable, it does need to be dealt with to ensure that staff remain engaged and productive. We take a look at the best strategies for resolving issues amongst employees.  

WHAT IS WORKPLACE conflict?

There are two broad types of conflict which can occur in the workplace. These include conflict of ideas, and personality clashes. 

By and large, a conflict of ideas can be a force for positive change in the office. This type of conflict generally arises when two or more employees feel strongly about the way something is done. One staff member may like following detailed processes to the absolute letter, while another staff member 'wings it'. Although these different working styles are likely to result in conflict and frustration, it is important that all workplaces embrace differences in employees, for the betterment of the organisation. 

A much more negative type of conflict, however, arises from personality clashes. While not all staff will get along all of the time, it is important that a minimum level of appropriate behaviour is insisted upon within the workplace. This includes always treating colleagues with respect, being polite and courteous.  

consequences of workplace conflict

Negative workplace conflict, which typically arises from personality clashes, results in reduced productivity and the creation of a toxic workplace. It goes without saying that staff who are locked in unhealthy relationships with their colleagues are more likely to take sick leave to avoid seeing their co-worker. Alternatively, there may be increased levels of presenteeism, where staff attend work but are not providing their best work. Even staff who are not directly involved in the conflict will likely feel increasingly stressed due to the negative atmosphere, and ultimately this will result in higher levels of staff turnover. 

Situations where there are high levels of conflict could also potentially result in more serious types of negative behaviours being engaged in, such as bullying, victimisation or harassment.

Resolving the conflict

There are many techniques and strategies available to employers to manage workplace conflict. Mediation utilising an independent third party can be particularly helpful, especially in cases where traditional management action has not been successful. 

Through mediation, staff members can ventilate their concerns and feel they have been adequately heard. As the mediator is generally an external party, employees are also less likely to feel that biased decisions are being made against them. 

Additional techniques include ongoing training for staff, in particular as to what types of behaviour will and will not be tolerated in front of peers. All expectations on behaviour must be recorded in clear policies and procedures. 

It is also important for employers to improve communication, so that staff know what is expected of them and what type of behaviour will not be tolerated. Management must also take clear steps to nip intolerable levels of workplace conflict in the bud, as soon as it becomes apparent.

Team bonding activities can also be a helpful way for staff to get to know their colleagues better, and perhaps develop an understanding of their motivations and concerns. 

By following these techniques, unnecessary and toxic workplace conflict and culture can be minimised. This in turn will have a positive impact on any organisation. 

Conflict among staff can easily fuel larger problems within an organisation, stunting productivity and quality of services. If your workplace is experiencing internal conflict and requires independent and expert support, WISE Workplace houses experienced mediators to help facilitate the resolution of workplace conflict.

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.  

Receiving Workplace Complaints

Vince Scopelliti - Wednesday, July 03, 2019

Employers should be well aware of the legal and associated requirements that come into play when someone in the workplace raises their hand with a grievance. 

Complaints about unacceptable and/or inappropriate behaviour can arise from any work area, and in regard to a wide variety of issues. Grievance handling needs to be fair and consistent - yet with each situation being approached on an individual basis. 

We take a look at creating a sound process for the receipt of complaints, which reflects and follows existing policies and procedures.

types of complaints

Complaints can be made in relation to all manner of behaviours. Examples include allegations of bullying, harassment and sexual harassment and even - in workplaces involving children - child abuse. 

Harassment itself covers a wide range of behaviours that could occur on or offsite, including those via digital communication such as email, social media platforms and messaging. 

Employers should note that alleged perpetrators can be colleagues, managers and even occasionally worksite personnel such as contractors.

steps to take when receiving a complaint 

For employers it can sometimes be difficult to know just where to begin once a complaint has been received. At a basic level, all internal procedures and policies should be carefully followed to ensure fairness and consistency. 

A clear and well-understood complaints process needs to be in place prior to the (inevitable) receipt of a workplace complaint. All those involved should receive even-handed treatment, with any decisions being made in a defined and measured way. 

In some instances, the alleged behaviour will constitute reportable conduct, with an employer obliged to notify a specified body about the allegation under a compulsory reporting regime. 

As society comes to grips with some of the behaviours that can occur in relation to our most vulnerable individuals, more stringent reporting requirements for employers continue to be developed. For example, the National Disability Insurance Scheme has been designed to ensure that employers take timely and objective steps upon receipt of any relevant complaint

key principles when responding to complaints 

In the case of complaints, it pays to ask some basic questions about the situations such as:

  • Is the behaviour unacceptable or not?
  • Does the situation warrant measures to minimise the risk of ongoing harm?
  • Do I have a clear understanding of the issues?
  • Do I need additional information or assistance?
  • Can the matter be safely resolved between the parties or at a team level?
  • Should the matter be progressed to an investigation? 

A key issue is the manner in which the people involved in a complaint are treated and how any required information is communicated.

At all times, employers should take the matter seriously, refrain from victimising any individual and ensure the same treatment for all personnel involved.

Confidentiality should be maintained at all times and support mechanisms put in place for what is, inevitably, a difficult time in the workplace. 

Taking the right approach

It is vital for employers to be aware of their legal obligations and best practice when it comes to addressing workplace complaints. Complaint handling can become quite complex depending on the type of complaints and the number of people involved. 

WISE provides professional and up-to-date training on conducting workplace investigations. Our courses are specifically designed for those engaged in the investigation of workplace misconduct, including bullying and harassment. Please call us if you would like expert assistance around complaints processing and the best way to ensure fairness if - and when - a workplace complaint is received.  In addition keep an eye out over the next seven weeks, as we will be publishing a series of articles, in which we examine the workplace investigation process. 

Can Employers Investigate if Complainants Ask Them Not To?

Vince Scopelliti - Wednesday, May 22, 2019

One of the more difficult aspects of managing an employment relationship is appropriately dealing with complaints, both from the perspective of the complainant and the accused. This is made even more complicated when a reluctant complainant brings something to the attention of Human Resources or management, then does not want it investigated. 

We examine why a complainant might not want to take an issue further, and what an employer's rights and obligations are in these circumstances.

why a complainant might be reluctant

There are many reasons why an employee might be reluctant to have a complaint investigated. These include: 

  • Fear of retribution - This is common in circumstances where the 'accused' holds a position of power over the complainant in the workplace. The complainant might fear reprisals and that their daily work life will become more difficult. This is particularly the case if the complaint relates to physical, sexual or emotional aggression. 
  • Fear that the complainant will not be taken seriously - The complainant might be worried their complaint will be considered 'trivial' or won't be dealt with objectively because of the position of the other party.
  • Time commitments - It is well known that an investigation will require a significant amount of time commitment from all parties. A complainant might not wish to be involved in a lengthy and time-consuming process. 
  • Lack of evidence - Complainants could feel that they are involved in a 'he said, she said' situation. The complainant might be concerned that an investigation will not ultimately support their version of events.    

The best way to address these concerns is for Human Resources or management to make clear to staff that all complaints are taken seriously and are duly investigated. This is regardless of who made the complaint, against whom it is levelled, and how much evidence might be required to fully conduct an investigation.

is a complainant allowed to withdraw a complaint? 

A complainant has the right to withdraw both the complaint and their support of any investigation. This generally spells the end of the investigation, because the person who receives a complaint is bound by confidentiality. This leaves the reluctant complainant as the only source of evidence to support an investigation.  

employer obligations to investigate

But employers are obliged to balance their duties of confidentiality with their obligations under workplace health and safety legislation. This includes eliminating discrimination and ensuring that everybody is able to undertake their jobs without unreasonable impostes. In circumstances of accusations of significant misconduct or even criminal activity, an employer may be justified in or even compelled to pursue an investigation, notwithstanding that a complaint has been withdrawn.

For example, if the complainant has raised issues of conduct that may constitute the commissioning of fraud, then the withdrawal of the complaint will not immediately result in the conduct alleged not being able to be independently investigated. There are also other considerations and duties of care that need to be taken into consideration before an informed decision to not undertake or to cease an investigation can be appropriately made. 

The dangers of a rigid policy structure

Although it is essential that all businesses have a complaints and grievances policy, there is some risk in having a procedure that is perceived as being too strict or rigid. If the general consensus amongst the staff is that there are only 'black and white' approaches toward dealing with complaints, this could result in staff being deterred from reporting incidents. This could ultimately result in employers breaching their legislative obligations and duty of care. 

At WISE Workplace, we have expertise in dealing with investigations involving reluctant parties. Talk to our team about full or supported investigation services for your organisation.

Addressing Post-Investigation Workplace Culture

Vince Scopelliti - Wednesday, January 23, 2019

Workplace investigations may cause disruption and even animosity in the workplace. An incident occurred and a workplace investigator must attempt to get to the heart of the problem. Once the investigation is over, there will inevitably be fallout in the workplace, which any employer would be well advised to address actively. 

We examine the pitfalls facing managers after a workplace investigation, and the best methods for getting the organisation on track once again.

dealing with the fallout

It is unfortunate that in the aftermath of a workplace investigation, some tension and negative emotions will almost certainly remain. Staff might be left stressed about the findings of the investigation itself and/or the possible ramifications into the future. Yet on the plus side, a workplace investigation has the potential to generate excellent learnings - and to guide the organisation to a fresh start and positive future. 

It is important that managers resist the temptation to 'let sleeping dogs lie' at the conclusion of the investigation. An outcome has been obtained, but how can the lessons learnt be put into practice, relationships repaired and morale improved?

learning from the investigation

Regardless of how discreet a workplace investigator might be, rumours related to the investigation can run riot both during and after the fact. Damage to workplace relationships is a distinct possibility in this environment. 

For example - learning that allegations have been substantiated against a colleague can lead to dismay, disbelief or even counter-attacks against the suspected informant. Management must face the post-investigation issues and ensure that communication with staff is as comprehensive and transparent as possible. 

And even after explanations are provided, a negative workplace culture can linger and should be addressed on an ongoing basis. Regular team meetings, one-on-ones and whole-group discussions should be open and encouraging. The best way to dispel a negative workplace culture is to candidly shine a light on post-investigation issues as and when they arise.

addressing policy shortcomings 

It is important to ensure that issues are not simply aired: policy shortcomings must also be clearly identified and a plan of action put in place. This can have two benefits. Firstly, a plan that reflects the input of staff will foster confidence that grievances have actually been heard and considered by management. And even if not all aspects of the plan are desired by employees, there is at least some certainty about what the future holds. 

communicating with staff

An important aspect of communicating post-investigation is to redefine expectations. For example, if the investigation uncovers inappropriate behaviours that have developed across time, management needs to redefine and effectively explain what the 'new normal' looks like in this area. Where policy shortfalls are found, it is important that management acknowledges this and explains clearly how new behavioural expectations and standards will be put in place. 

Addressing staff concerns and providing support where needed is crucial in the aftermath of a workplace investigation. Don't bury your head in bureaucracy - take action! Let staff know that you are aware of the impacts of the investigation, and that their input matters. As the dust settles, feedback processes should be ongoing, and include staff wherever appropriate. This will be an important time for rebuilding work relationships.

leading an organisation into a positive culture future

In the aftermath of a challenging workplace investigation the future can feel somewhat uncertain. The process may have been unsettling and it is possible that colleagues have been on either side of accusations and recriminations. 

In order to lead the organisation into a positive-culture future, managers should be candid about the past but also hopeful about the organisation's potential. When carried out effectively, workplace investigations can sweep out undesirable cultural elements and provide a fresh start for policies, procedures, ways of working and overall workplace relationships. Leaders need to focus on this capability, and reiterate to staff the positives for the organisation into the future. 

Redefining workplace culture following an investigation can be a challenge. For strategies and advice to help your organisation re-establish strong workplace culture, contact WISE.

How to Transform a Toxic Workplace for a Productive 2019

Vince Scopelliti - Wednesday, January 09, 2019

A toxic workplace culture can place significant barriers in the way of achieving business objectives. If toxicity has invaded your office, it is likely that you are dealing with staff who are unproductive, resentful, unmotivated and perhaps difficult to discipline - and it can affect senior managers to junior employees. 

This can have significant effects on all areas of the business, and can even impact your bottom line. We give you tips on how you can start 2019 with a new, improved workplace culture - even if you're already seeing signs of disharmony.

signs your workplace culture is toxic

Psychologists and workplace consultants have long analysed the circumstances which cause a business to develop a toxic culture. Obvious signs that your company is affected may include:

  • Development of silos - This is demonstrated when workers fail to collaborate with each other or stick to their individual teams without sharing information, work or projects across the whole business. 
  • Drama - When 'business as usual' can't continue because histrionics and obstructive behaviour set agendas and cause issues and hypersensitivity. 
  • Lack of trust and 'backstabbing' - A little gossip is normal in any group environment. But when employees undermine each other regularly and fail to communicate effectively, it can be impossible to build or maintain a strong team culture. 
  • High leadership turnover - This can be a strong sign that either the business continues to select the wrong people for leadership positions (which is likely to have a negative impact on their direct reports) or the business does not support people who are trying to effect positive change. Either way, this does not bode well for success. 
  • Refusal to change - All businesses need to adapt, whether it is to keep up with technology, implement new ideas or listen to the needs of customers. A business where change is impossible is unable to grow; and this attitude suggests that management is perhaps not functioning optimally either. 

identifiying a toxic employee

Generally, a toxic culture starts with a small number of toxic employees, whose negative influence spreads throughout the office. Although there are no defined criteria for a toxic worker, they may display traits of:

  • Insistence on following 'rules' in an inflexible and unproductive manner;
  • Turning in work which is of a poorer quality than that of their colleagues;
  • Overrated belief in their own skills;
  • Self-centredness and arrogance;
  • Hypersensitivity to criticism;
  • Disruptive, dramatic or obstructive behaviour;
  • Paranoid tendencies; 
  • Gossip and general unpleasantness towards others;
  • Passive aggression displayed towards co-workers. 

If any of your staff are displaying a number of these behaviours, it would be wise to ensure that Human Resources is aware of, is monitoring the situation and that a strategy to address the behaviour is formulated immediately.

strategies for implementing a better culture

You can deal with a toxic workplace by:

  • Offering purpose-driven work (so that all staff can see how they are assisting the company and providing clear outputs)
  • Encouraging cultural improvements (by offering rewards for staff who have the right attitude or engage in positive actions)
  • Improving leadership (staff are more likely to listen to senior management who set a good example, engage them and inspire them to perform better). 

WHERE DO I START? 

Once you have identified that your workplace culture is toxic, it is time to disrupt the negativity. A cultural or climate survey may assist in pinpointing particular areas of or reasons for malcontent. 

One of the most important things to do in this scenario is to be honest with your staff about your assessment of the culture. Indicate that senior management is aware of the issues and is going to take steps to effect changes. 

This will likely encourage those staff who are committed to a fresh start, while at the same time causing those who are unwilling to cooperate to either resign or be adequately and reasonably performance managed. 

All staff should be involved in these announcements at the same time, ideally in the same room, so that the business develops a new, shared vision and has a joint positive attitude. All executives and senior management should be setting a clear example and be well versed in the proposed new company direction, so that everybody is reading from the same runsheet, and change really is demonstrated to be 'top down'.

Importantly, once an action plan for repairing the toxic culture is developed, it should immediately be implemented, so that enthusiasm and motivation does not wane. 

It takes commitment and determination to disrupt a toxic culture. It's best undertaken by moving ahead quickly with a clear course of action and employee buy-in. As employees practise the new rules and behaviours, your culture will become self-reinforcing. If you have allegations that demonstrate a toxic workplace culture, and would like a cultural survey or fact-finding investigation into the circumstances done - contact WISE today! 

Common Issues with Workplace Mediations

Vince Scopelliti - Wednesday, August 08, 2018

Occasional conflicts and disputes are a fact of life in all workplaces. One of the best ways to defuse difficult situations, resolve office concerns and keep your staff happy is mediation. But even though this is a potentially very effective device in the employer's toolkit, workplace mediations can go wrong.

Let's take a look at the process of mediation, and some of the issues which might arise. 

What is mediation? 

The mediation process requires all parties involved in a dispute or issue to meet in the presence of a third party (the mediator), to try and come up with mutually acceptable solutions.

The mediator is trained and is required to be neutral. Unlike a judge, they will not make a determination or decision - instead, a mediator will listen to all parties and suggest objective solutions and options. 

what happens during mediation?

During the actual process of mediation, the parties are encouraged to ventilate their respective viewpoints. Each party then has the opportunity to have private discussions with the mediator, after which the mediator will discuss any commonalities and the key differences in each party's attitude, while suggesting potential resolutions.

Outcomes are flexible and are really only limited by the willingness of the involved parties to cooperate. In the employment context, this means that mediations may result in agreement to apologise, or more novel outcomes such as crediting or debiting leave hours, returning property, or providing work references. Mediations are confidential, which also makes them an extremely attractive option. 

key issues with mediation

Mediation can be extremely helpful by providing a positive communication and solution tool in circumstances where there are no easy answers.

However, mediation may not be as successful if one or both of the parties are extremely entrenched in their viewpoint and are unlikely or unwilling to compromise. This is particularly the case because mediation is a voluntary process - so if staff are reluctant to participate, they cannot be forced to engage.

Further, where matters of serious misconduct or illegality are involved, it may be inappropriate to attempt to find novel solutions to workplace issues. In those circumstances, it is generally appropriate to follow the traditional paths of discipline, incentivisation or other resolution methods.

There can also be issues if parties don't comply with any agreed upon outcomes of the mediation process. 

potential for problems after mediation

Any agreement which is reached during the mediation process can be as formal or as informal as the parties and workplace prefer: from a simple verbal agreement all the way through to a Deed of Settlement recording the negotiated terms or contract stipulating future actions.

Should a formal agreement be executed and one of the parties subsequently reneges on the terms of settlement, the aggrieved party can pursue legal action through the court system to force compliance.

If you have an issue in your workplace regarding employee conflict, it may be useful to discuss these issues with an external, experienced workplace investigator or mediator. If you need support in how to conduct an investigation or need to engage a mediator, contact WISE.

Counter Allegations - Who Did What When?

Vince Scopelliti - Wednesday, June 20, 2018

Experienced workplace investigators are well aware that when two or more people are in dispute, there will inevitably be differing perspectives on what 'the truth' might look like. Contentious workplace issues can often play out in a 'he said, she said' fashion, with one allegation being closely followed up by a second person's counter-allegation. Such complications should be dealt with in a fair, considered and methodical way.

Separate allegations made by opposing parties will ideally be dealt with in discrete stages by workplace investigators, with each being handled in accordance with its individual merits. And as evidence comes to light regarding one or more of the competing allegations, investigators should aim to assess and weigh each piece of information with utmost care and objectivity.

When two tribes go to war 

When a counter-allegation is initially made, it is important not to jump to conclusions regarding this development. It does not necessarily mean that the first complainant was misrepresenting events or indeed that the second complainant is somehow defensive, guilty or panicky. It is possible that both the original and the counter complaints are valid.

Let's take an example: perhaps she took his stapler and he wiped her hard-drive. Two complete denials on the same issue can require the workplace investigator to look more closely at the milieu of the counter-allegations. For instance, if two workers in a scuffle both identically calm that "I did nothing - she pushed me", an astute investigator will know that a pointed and methodical approach to the counter-allegations is certainly called for.

In each of these scenarios, both allegations should be investigated and dealt with separately. It can be tempting to create one big file entitled 'Stapler/hard-drive fiasco' or 'Smith and Jones stoush'. Yet clear delineations between people, events and timing will ensure that impartiality and clarity are maintained for the duration of the investigation and that the validity of each complaint is tested.

Seen and unseen allegationS

Very occasionally a workplace investigation involving counter-allegations will be easily settled. For example, the employee might not have been at work on the day that she allegedly stole the stapler - a simple mistake, evidenced by the work roster and now the complaint file can (on that issue at least) be finalised.

If only things were so simple... In most workplace situations, the investigator will need to step carefully through complex evidence attached to each allegation. Some events might be directly witnessed in a cut and dried way; Brown was in the kitchen with Smith and Jones on 7 December 2017 and can confidently say she saw Smith push Jones, who then walked away. Yet in many cases there are no witnesses to wrongdoing in the workplace and the 'he did/she did' scenario must be dealt with. 

Further clarification in many forms becomes the best way to methodically tease out the knots of knowledge. This might take the form of documentary evidence, circumstantial evidence such as presence at a meeting that day, or a contemporaneous report such as an OH&S report involving counter-complainants. A tidy pattern of good circumstantial evidence can at times provide the clarity needed in the face of vehement counter-allegations. The workplace investigator must carefully assess the quality, reliability and utility of such material, being sure not to make assumptions and/or factual errors along the way.

Hearsay - treading lightly on complex terrain

As with all areas of law and investigations, hearsay evidence can provide helpful insights in situations where nothing more concrete is available. Hearsay is generally words or things observed by an individual who was not directly present when an event occurred. In other words, it is a type of indirect evidence. A simple idea, but surprisingly difficult to manoeuvre successfully during investigations.

Great care is needed in these situations, as hearsay evidence is notorious for causing problems later in post-investigation proceedings. Employees may go home and talk openly to their spouse about distressing events. Or they stomp back to their desks, muttering to a colleague about 'the stapler thief'. Yet the spouse or the colleague cannot tell us much about what actually happened. They are a friendly ear - after the alleged event.

Such indirect evidence can be the least helpful in many cases. However, experienced investigators will know how to gather and utilise such material when more direct evidence is difficult to obtain.

Workplace allegations and motivations

It is not unheard of that rather ulterior motives can exist in a workplace allegation. When stories are not gelling, it is natural for the workplace investigator to think - what am I missing? Why would this person make this up? It is important to consider the possibility that rivalries, emotional issues and/or collusion might unfortunately form part of the mix that has motivated an internal complaint. While it does not pay to assume such a phenomenon, investigators should be aware that such dynamics can and do arise in the workplace.

In workplace investigations, we find that it is never simple. If you have an investigation that has 'blown' out, or you are reviewing cross and counter complaints and could use some professional assistance, then contact WISE today.

How to Deal with Bullying in Hospital Environments

Vince Scopelliti - Wednesday, June 06, 2018

Hospitals - very few people like them, yet many of us will be a resident at one time or another. Even though hospitals can be sources of great joy, places where babies are born, miracles happen and lives are saved, they also represent sickness, injury, death, and some pretty ordinary food! 

The people who work in them - the doctors, surgeons, nurses, aides, assistants, administrators and catering staff - perform difficult work in an extremely stressful environment. Imagine the potential consequences when the added stressor of workplace bullying is added to the mix.

Factors which facilitate bullying in this environment 

Hospitals and the healthcare sector remain a particularly hierarchical environment - carers need to get sign-off from nurses before passing out certain medications, nurses confirm recommended treatments with doctors, doctors and surgeons rely on their own pecking order. 

This hierarchy, and the importance of culture and following rules, automatically puts certain workers in a subordinate position relative to others.

Lateral violence, verbal, physical and psychological bullying among peers, can also be an issue in the health services. 

Combined with the stress of having to deal with time-critical emergencies, becoming involved in physically and mentally straining situations and dealing with the trauma of patients suffering, hospitals are the perfect breeding ground for hostility, anger and frustration.

Prevalence of bullying

Bullying in the healthcare sector is an under-recognised but pervasive problem. Hospitals often have scant or limited resources and staff are under significant pressure, which may contribute to the prevalence of workplace bullying.

The Australasian College for Emergency Medicine surveyed its members in 2017 and found 34% had experienced bullying, 16.1% had experienced harassment and just over six percent had been victims of sexual harassment. A landmark 2015 report commissioned by the Royal Australasian College of Surgeons showed that almost half of all surgeons had experienced bullying, discrimination or sexual harassment. 

The Victorian Auditor General Office, in its 2016 report to the Victorian Parliament, 'Bullying and Harassment in the Health Sector', stated 

"The Health Sector is unable to demonstrate that it has effective controls in place to prevent or reduce inappropriate behaviour, including bullying and harassment. Key controls that would effectively reduce this risk to employee health and safety are either inadequately implemented, missing or poorly coordinated." 

However, by its very nature, bullying in this type of workplace can be particularly difficult to detect and manage. 

Consequences of bullying

The potential consequences of bullying are significant. In addition to litigation arising from the bullying and costs associated with worker's compensation or other payouts, a number of issues can arise. These include:

  • High turnover amongst dissatisfied staff
  • Presenteeism - where staff turn up at work, but are unhappy or stressed and perform inadequately, which is particularly dangerous in a hospital environment. 
  • Increased absenteeism
  • A poorly functioning team environment that can adversely affect staff and patients.      

are there solutions to bullying in high-stress environments?  

Key strategies to help solve the problem include:

  • A focus on workplace culture, including by conducting regular cultural audits. 
  • Encouraging a 'mentor' or 'buddy' system (in consultation with unions where appropriate), or otherwise provide a supportive environment whereby staff are encouraged to vent or ask for assistance with any matters they are struggling with. 
  • Facilitating easy access for staff to obtain confidential counselling, or advice services. 
  • Fostering an environment where staff feel comfortable raising concerns and complaints with their peers and management.
  • Having clear zero tolerance policies regarding workplace bullying and harassment, which are easily accessible to all staff
  • Ensure that this zero tolerance policy, is demonstrated by senior management, so there is a top down recognition of adherence to the policy from all staff. 
  • Staff need to be regularly reminded of the consequences of any poor behaviour in the workplace and this should be reinforced during staff meetings.  

Bullying or harassment - in any workplace - is simply unacceptable. Many incidents of bullying or harassment may be unreported for fear of reprisals. All staff should be encouraged to report any incident. 

If your organisation needs any assistance in this area please contact WISE to arrange a no-obligation appointment or otherwise contact us to discuss how we may assist you. Our services include investigation, training, provision of a whistleblower facility (which can be tailored to suit your reporting needs), and review of policies