Confidentiality Should Be No Surprise

- Tuesday, September 16, 2014

Confidentiality Should Be No Surprise

In a recent case involving a union delegate acting as a support person and a breach of confidentiality, the Fair Work Commission noted that those acting as support people during workplace disciplinary processes must be clearly informed by the employer about their obligation to maintain confidentiality. This might seem to some to be a fairly common-sense proposition, hardly requiring particular clarification on the part of the employer. That is, if asked to support a colleague during a disciplinary interview, it should be quite obvious that the sensitive subject matter indicates a need for utmost confidentiality. And, if following a disciplinary meeting, the worker’s support person then provides that confidential material to others, it would perhaps be no surprise if the employer took action against the support person.

Making it clear

Yet, in CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (MSS), a support person named Leighton did in fact express such surprise about the confidentiality requirements arising from his involvement in a colleague’s disciplinary interview. Leighton was asked by his co-worker Arnold to attend the interview as Arnold’s support person. After attending the meeting in this capacity, Leighton then proceeded to distribute to colleagues via email certain written information provided in confidence during the disciplinary process. The core issue in the case was actually whether the employer’s decision to issue Leighton with a final written warning was unnecessarily harsh in the circumstances. Before traversing that issue, Commissioner David Gregory was very clear in noting the basic remit of any support person’s obligations in the context of a workplace investigation:

Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times. [at 49]
Clarity of roles

Commissioner Gregory noted that Leighton’s particular role in the workplace required some consideration. He was a union delegate of the CFMEU at the MSS worksite, as well as being actively involved in other union activities across Victoria. The Commissioner stated that this position in the workplace could be seen in two lights. As a delegate, he should have been aware of the requirements flowing from workplace investigations. Yet considering his natural tendency to want to actively assist all workers at the site, his dissemination of this particular information arising from Arnold’s meeting was perhaps understandable.

A duty to inform

Other elements of Leighton’s behaviour and work history were noted, including a formerly unblemished employment record and his apology for the unintended breach. He maintained throughout that he simply did not understand the need for confidentiality in the disciplinary context. On this point, the Commissioner noted that employers are obliged to inform workers clearly and unequivocally of the need to maintain confidentiality about any information that arises in their capacity as a workplace support person. This should occur at a number of junctures during employment, including at the commencement of any workplace investigation in which they are involved. The FWC ordered a lessening of Leighton’s sanction, from final written warning to a written warning.

Support with information

As can be seen from this case, even for those regularly involved in workplace investigations, employers must take care to clearly and unambiguously set out the requirement of confidentiality. It can never be assumed that a person would ‘naturally’ be aware of their obligations in this context. It is common for union delegates to be involved in workplace investigations as support people. Such workers should be reminded that once in the role of support person, they are in attendance purely to support their colleague and to ensure a fair process. Clarify that any impulse to disseminate meeting outcomes for the perceived good of all colleagues, for example, must be resisted. Setting out possible actions to be taken in the case of a breach of confidentiality would also go some way to assisting support people to exercise the discretion required in workplace disciplinary investigations.

Keeping confidence

For employers or HR departments working through a workplace investigation, or simply wanting to enhance employee knowledge of confidentiality requirements, it is essential that the information provided is clear and accurate. To avoid any ‘surprises’ about the need to maintain confidence in investigative processes, get in touch to see how we can assist with your specific requirements. WISE Workplace provides a number of one-day investigation programs. To find out more information about programs tailored to your workplace, contact Harriet Stacey on 1300 580 685.

Basic Risk Assessment for Employees Working with Children

- Tuesday, September 09, 2014

Basic Risk Assessment for Employees Working with Children

It’s a testament to how far we have come as a society that we now work tirelessly to ensure the protection of our children. And in Australia, each state government has answered the call to assist in this endeavour by introducing rigorous background checks and mandatory certification for all adults who care for or engage with our kids.

Yet while the current basic card system has been incredibly useful in preventing certain undesirables from obtaining paid or volunteer work with children, it pays for employers to take further steps whenever your employees are to be working with children. Here, we run through the elements of a basic risk assessment.

Who will be working with children?

Let’s say that you are considering taking on a person to work for your organisation. At this early stage of interacting with a prospective recruit, it is crucial to gain a rounded picture of who he or she is. The first step of course is to obtain a certified copy of their working with children card (however it is named in your jurisdiction), plus check the number online to assess validity. This is a non-negotiable component of your risk assessment. It is sad but true that some of the least-appropriate persons seeking child-related work can seem quite nice or normal in settings such as employment. An objective check of their historical behaviour cuts through any uncertainty. It is also essential to conduct thorough referee checks, particularly mentioning to the former employer that there are children in your workplace. And don’t underestimate the interview process for ascertaining their history and motivations for working with children.

And children might not only be clients of your business – you might in fact employ children or have them on site on a work experience, volunteer or trainee basis. When employing adults to work beside children in this capacity, it is vital that you maintain a similar vigilance at recruitment and beyond. Unfortunately, some predatory types can target not only children but also other relatively vulnerable individuals in the workplace. For many children in a new role or work experience placement, they can be very keen to be seen as bright, friendly, willing and capable. This can provide a window for immoral adult employees to take advantage of such enthusiasm. Knowing that abusive behaviours towards children can commence with seemingly innocuous - yet insidious - grooming behaviours, it is crucial to monitor employees for any signs of potential impropriety.

Be sure also to keep age differences in mind, and note the differing needs for care and protection dependent upon the age of the child in question. For instance, a friendship between 17 and 19-year-old workmates might not have the same implications as that of a 14-year-old work experience child under the management of a 40-year-old manager.

What is the child-related work at your workplace?

Employers shouldn’t just be analysing risk in relation to potential dangers to children. At a broader level, you might also need to gauge the suitability of the person to be interacting with small, active, rowdy and sometimes stressful young humans! Risk in this context can be a two-way street. Your risk assessment should include an activity-based analysis of the match between your organisation and the potential recruit’s competencies. Considering the physical and mental stamina required in some child-related work, it is important to assess the employee’s capabilities related to the particular child age group/s and activities. For example in sports-based environment with teenagers operating as both staff and clients, you will need an analysis and strategy regarding any adult employees who also work in that space. For any employees engaged to care for very small children and babies, be sure to examine all regulations concerning child/carer ratios and physical safety requirements.

Where are employees working?

The place where your employees are working with children is also an important consideration within your risk assessment. For all people in attendance on the site – adults and children alike - it is of course essential that your premises are safe and conducive to the activities undertaken. Ensure that employees, particularly any new ones who are engaged in activities with children, are closely supervised in the employment space. It is important to assess if the skills and temperament presented at the recruitment stage are present and appropriate once in your specific workplace. If your employees are working with the children off-site, strategies around privacy, multiple workers with children and rigorous supervision of new recruits should be developed. Risk assessment of any non-employees who are near the children is also a necessary and related assessment that must be undertaken.

When are your employees working with children?

Pay attention to when your employees will be working with children. While it certainly pays to reduce risk as far as possible, stringent vetting requirements might not be applicable where contact with children is negligible or rare. For those employees who will be more regularly and closely involved in working with children, it is important to conduct an assessment of the timing of work, for example across the day or night. In long-hour crèches and youth housing sites, night-time work with children will require a careful risk analysis of suitability, safety and privacy issues..

Assessing risk, protecting children

For those employing staff to work with children, it is certainly prudent to conduct a basic risk assessment. Decisions regarding an appropriate level of risk that an organisation might carry must be balanced carefully.

In the context of employing people to work with children, the likelihood of the event occurring and the outcome if that event did occur will necessarily be weighed to establish risk.

Businesses have an understandable desire to succeed, just as charities, schools, not-for-profits and so on want to deliver excellent services. Yet when it comes to employing people who will be working with children, it is of course important to place child safety front-and-centre in all deliberations. Where or when you start with your risk assessment will vary. You might be starting a new venture, or conducting a risk assessment in relation to a going concern. First, write a list of all child-related activities and contacts known to occur in the organisation. Then collate all known requirements for child safety in both your area and your industry. Ask yourself to consider the likelihood of an adverse event occurring, should you not meet the standards set out. And the next question will be - if such an outcome eventuates, is this one that your organisation is prepared to carry?

As examples - the risk of abusive behaviours arising because you’ve recruited someone without a card, or have employed an adult to work unsupervised with children, or have left mixed ages on site in the evening – must be weighed against the legal, social and financial outcomes if any unfortunate event occurs. Only then can risk be meaningfully assessed.

By analysing the potential risks that arise when employees work with children, all people (big and small) can thrive in our workplaces.

Drafting Allegations the Right Way

- Tuesday, September 02, 2014

Drafting Allegations the Right Way

Whenever allegations of adverse conduct arise in the workplace, the relevant investigator or manager must think carefully about the way in which these are to be put to the person involved. Preparation is the key here – wherever possible, take sufficient time to organise and crosscheck your information about the relevant events or conduct before any allegations are communicated in person or in writing. Depending upon the severity of claims, a meeting where allegations are orally presented can be appropriate in some cases. In more serious matters, a formal letter might be necessary. And on occasion, both approaches will be combined. In any event, the allegations that are put to a workplace participant must be phrased carefully, accurately and impartially. 

The power of words

When allegations are raised in the workplace, emotions can run incredibly high. Rumours might snowball and accusations often fly – sometimes with unsavoury language and abuse included. The job of the workplace investigator – whether internal or external – is to unpack the emotional packaging of an allegation in order to locate the core issues. In drafting allegations, be sure to maintain a tone that is calm and disengaged from the situation.

Rather than ‘Tell us why on earth you called poor Jane an [expletive] on Monday for no apparent reason’, better drafting would be ‘an allegation has been raised that you spoke inappropriately to a co-worker on Monday. Would you please provide us with your response to this’.

With emotive words removed and a less confrontational tone employed, this draft takes a polite and professional approach. Emotional and factual red herrings can also lead to the investigation going off track. If the wrong questions are drafted and asked, the value of any resulting process or report can be negligible. Further, unless absolutely necessary for clarity, maintain confidentiality regarding the identity of others involved.

Maintaining impartiality

When drafting allegations for presentation to the alleged wrongdoer, it is vital that there be no sign of prejudgment on the part of the investigator. In our above example, the investigator’s communication of the allegation unfortunately resonates with prejudgment – it appears that ‘poor Jane’s’ version of events has been completely accepted as fact by the drafter. Procedural fairness in workplace investigations must be woven through the entire process, from receipt of the brief through to report finalisation.

Hopefully, workplace problems will be quickly resolved and all parties will amicably resume their activities as normal. But unfortunately history shows that the outcome of a workplace investigation can see issues escalate, even to the courtroom.

In such cases, how the alleged wrongdoer has been treated during investigations can impact upon the quality and even admissibility of evidence obtained. The Briginshaw principle establishes that the more serious the issue, the better the evidence must be in order to meet the balance of probabilities threshold. Where the questions and approaches used by an investigator are tainted by bias, a breach of natural justice will be seen to have occurred, and the resulting evidence might well be considered all but useless.

The drafting of allegations – a crucial time

Hopefully, by the time allegations are being drafted for presentation to the alleged wrongdoer, the workplace investigator has collected sufficient objective data to make the questions balanced and professional in their content. Each allegation should be dealt with separately and in plain language, to ensure that all relevant issues are aired and understood by the parties involved. Avoiding the rumour mill, maintaining discretion, and drafting with care will all work to assist the investigator in the development of well-communicated allegations.

In most cases, there will be specific policies and codes connected to the workplace. These should be requested and examined as part of the investigation. If it is alleged that one of these workplace codes has been breached by the act or behaviour in question, then this must be clearly stated in the allegation. The exact policy or code section should be noted and the connection between this and the alleged incident explained. Where the consequences of a breach are specified, this too should be drafted in plain language and put to the alleged wrongdoer.

Protecting Against Unwanted Sexual Advances at Work

- Monday, August 25, 2014

Protecting Against Unwanted Sexual Advances at Work

The definition of a workplace might seem relatively simple – the office, the work site, the place where you carry out your duties of employment. Yet a recent finding of the Full Federal Court has affirmed one judge’s ruling that the workplace can quite often extend beyond the four walls concept. It follows (as the majority of judges in this case recognised) that unlawful behaviour such as sexual harassment can occur within unconventional ‘workplace’ circumstances and venues.

Can a nearby pub be a ‘workplace’?

The case in question – Vergara v Ewin – involved unwanted sexual advances from a male contractor towards a female supervisor. Some of these occurred in the regular workplace, while other behaviour took place in venues that might ordinarily be considered off-site. One such place was a pub called the Waterside Hotel, in Melbourne’s CBD. The respondent stated that she moved a discussion about the unwanted advances out of the ‘regular’ office to the nearby pub, in order to feel safe with the applicant. She and the applicant had been alone at the office, and she wanted to continue the work-related discussion near other people. This became one of the harassment sites.

A question arose as to whether the Waterside Hotel could realistically be considered a workplace under s28B of the Sexual Discrimination Act, as in force in 2009. Firstly, the parties were found to be ‘workplace participants’ for the purposes of the Act, although the appellant was a contractor.

From there, the full court found that the pub was indeed a workplace in accordance with s28B(7): “A place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.”

In continuing to discuss the workplace harassment question, the parties were found to be carrying on the necessary work-related function while at the hotel.

Important lessons to be learned

The decision in this case raises important points for all workplace participants, whether they are employees or contractors. Unfortunately the scourge of sexual harassment continues to exist, and it is important to think through the potential situations that you may find yourself in if you are managing unwanted sexual advances from a colleague. Following a few simple guidelines can help you to protect yourself:

    • Be clear
    • Avoid alcohol
    • Avoid being alone
    • Report your concerns
Be clear

In this case, while the court agreed that the purpose of the meeting in the Waterside Hotel was to discuss the harassment, clearly this wasn’t understood by the applicant. If you choose to address unwanted sexual advances with the person involved, be careful that your actions can’t be taken as a green light. Keep the discussion at the office, keep it professional, and make sure you are within sight of your colleagues during the discussion.

Alcohol and sexual harassment are not a good mix

Work drinks are a common form of team bonding in many work places, but it’s wise to understand the increased risks of alcohol consumption in terms of lowering inhibitions. Thinking of letting your hair down with your workmates once you’ve moved discussions to the local pub? It certainly might pay to think twice about this.

Being alone means being vulnerable

Make sure you don’t find yourself in a situation where you are alone with the person who is making unwanted advances toward you. The presence of another colleague is often enough to deter harassment.

Report the situation

Even if you want to handle the situation yourself initially, it’s important to report your concerns to a third party, and make it known to the person involved that you have done so.

It pays to take heed of the dangers that can present themselves, both in the ordinary office setting and wherever ‘workplace participants’ are carrying out work ‘functions’. .

Education and vigilance

Employers must also continue to be vigilant in maintaining a safe environment for all people under their occupational control. Just confining the focus of anti-harassment measures to the four walls of your office environment might not be sufficient. Considering the growing fluidity of employment, all engagements between participants both on and off-site have the potential to create unfortunate scenarios. .

Education is essential – whether engaging employees, temps or contractors, employers should ensure that a zero-tolerance approach towards sexual harassment and other misconduct is conveyed from day one. Training, regular updates and modelling best practices can all assist in developing workplaces where safety and respect are core objectives. Off or on-site, this case demonstrates the significant problems that arise where unfortunate behaviour occurs between colleagues

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

- Tuesday, August 19, 2014

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

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

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

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

Plan for the best evidence

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

Ensure full coverage of pertinent issues

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

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

How to Handle Workplace Bullying

- Tuesday, July 29, 2014

How to Handle Workplace Bullying

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

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

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

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

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

Minimise the risk of continued harm

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

Decide whether the matter can be resolved

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

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

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

When Should You Report Workplace Bullying?

- Tuesday, July 22, 2014

When Should You Report Workplace Bullying?

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

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

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

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

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

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

Some activities which aren’t categorised as bullying include:

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

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

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

Defence Department Criticised for Dismissal Process

- Tuesday, July 15, 2014

Defence Department Criticised for Dismissal Process

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

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

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

Reasons for the findings

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

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

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

Defence policies criticised

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

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

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

How to Work Effectively With External Investigators

- Tuesday, July 08, 2014

How to Work Effectively With External Investigators

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

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

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

Before the investigation starts

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

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

Once the investigation is underway

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

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

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

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

How Do I Know if I Need an External Investigator?

- Tuesday, July 01, 2014

How Do I Know if I Need an External Investigator?

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

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

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

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

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

Can internal staff perform an unbiased investigation?

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

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

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

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

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