The Cost of Ignoring Verbal Reports of Sexual Harassment

- Tuesday, November 18, 2014
Verbal Reports
The Cost of Ignoring Verbal Reports of Sexual Harassment

The recent matter of  Trolan v WD Gelle Insurance and Finance Brokers is notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. Long gone are the days when a written complaint of such behaviour is needed. Trolan demonstrates that in matters where such egregious behaviour is occurring in the workplace, employees don’t need to put things in written form in order to ‘inform’ of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

Daring to tell 

In July of 2008, Ms Trolan began work at her new place of employment – WD Gelle Insurance and Finance Brokers Pty Ltd (the employer). Between August 2008 and December 2008, Ms Trolan was subjected to a relentless assortment of unwanted and lewd sexual advances from a director of the company, Mr Gelle. Such behaviour included several physical violations, including circumstances where Ms Trolan was effectively trapped and unable to react. This was coupled with bullying behaviours that were corroborated by colleagues as ‘par for the course’ from the ‘screaming’ Mr Gelle. In September of 2008, Ms Trolan reported the matter over the telephone to another director of the company, Mrs Gelle (also the defendant’s wife). Mrs Gelle undertook verbally to deal with the matter. 

Silent damage

But no change occurred. Mr Gelle’s behaviour continued unabated, and in December 2008, Ms Trolan was consequently found by her doctor to have suffered a severe work-related injury. She was placed on WorkCover from that time. The essential causes of her diagnosed psychiatric illness were the sexual harassment and bullying that she had endured over a period of time while working at WD Gelle. And for part of this time, it was with the full knowledge of the employer. 

Listen out

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

Lingering pain

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

Words are enough 

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

Act early 

The lesson from Trolan? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $700,000+ for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

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

How Do I Know Whether to Mediate or Investigate?

- Tuesday, November 11, 2014
mediate or investigate?
How Do I Know Whether to Mediate or Investigate?

The number and type of differing workplace problems is certainly considerable. It is no surprise then that the mechanisms for tackling these various grievances and disputes are similarly numerous. One common question that managers and workplace consultants face is how to choose between differing approaches to dispute resolution. In this article, we take the example of mediation versus investigation, and consider some of the variables that might come into play when deciding on the right path. 

Mediate the misunderstandings 

Often when a mediator (internal or external) is briefed about a problem between colleagues, the key term that crops up is tension. Roles, workspaces, workload division, and different communication styles are just some of the flash points that can cause dysfunction between colleagues and across work sites. The issue might involve two or more people, and more often than not there is roughly equal power between those involved. Mediation is often the go-to strategy for such workplace issues. Mediation aims to identify core problems, enhance understanding, and facilitate workable solutions for the participants to try. As a mediator, it is not within your scope to mandate any set outcomes. Yet it can certainly be helpful to use your knowledge of the situation and the workplace to make suggestions. Ideally though, the parties will have returned to a point of healthier communication and will be able to formulate outcomes and goals that are mutually beneficial. 

Investigate the irregularities 

On the other hand, a workplace investigation is based upon a different set of premises. Unlike mediation – which can often be about simmering disagreements – an investigation will most likely be appropriate where something has already allegedly gone wrong. Unlawful behaviour such as bullying or sexual harassment might have occurred, or suspicions might have started to mount regarding possible fraudulent activity. Rather than seeking to dispel relational and operational dysfunction such as would occur in mediation, the workplace investigator is often utilised to get to the bottom of potential wrongdoing. One or multiple staff members might be examined, depending upon the activity under investigation. Unlike mediation, only one person would attend an interview with the investigator at a time. Confidentiality is extremely important and investigators must be vigilant in ensuring procedural fairness at all times. 

What to watch in mediation

Mediation can be unsuitable in certain circumstances. For example, if an allegation of sexual harassment has been made by an administrative assistant against her line manager, then mediation would not be the appropriate forum for dispute resolution. There is a clear power differential in terms of the parties’ relative positions in the organisation. The openness and mutual contribution required for successful mediation is absent in this respect. Further, considering the alleged unlawful behaviour that has occurred in this instance, the employer has significant duties around the safety of the administrator, investigation of the allegations, and a duty to prevent any further harm or injury via re-traumatisation. Investigation would almost certainly be a preferable course of action. 

Unsuitable investigations

 A workplace investigation can also be an unsuitable option in certain circumstances. Take the situation where bickering and antagonism is occurring within a team, with a danger of escalating into workplace bullying. To start an investigation complete with closed-door interviews and confidentiality requirements would do little to dampen the team’s difficulties, and might in fact serve to inflame rumours and enmity. And if one person is questioned more than others, this might raise the very ire that the employer is hoping to dispel. In this case, an investigation is simply too heavy-handed an approach. Mediation between the key protagonists – facilitated in a way that allows feelings to be vented, issues to be examined, and is aimed at mutually agreeable solutions – is almost certainly the preferable approach in this instance. 

Surveying the scene

 In deciding whether mediation or an investigation will be suitable, it is important to take stock of the situation and the nature of the specific workplace problem. If it appears that wrongdoing has occurred and facts need to be examined and collated, a workplace investigation will often be the best choice. Where equal parties need a space to air grievances and to work towards solutions, mediation provides an appropriate space within which such conflict can be resolved. Always take enough time to accurately assess the scene, to ensure that your choice of approach is the best fit for that circumstance.

WISE Workplace provides certified mediators and fully licenced investigators to handle a range of workplace conflicts and complaints.

When Your Risk Assessment Differs From Official Findings

- Tuesday, November 04, 2014
Assessment versus Findings
When Your Risk Assessment Differs From Official Findings

When something goes wrong at the worksite, business owners and managers are often left to scratch their heads not only about how the event occurred, but also about the investigative process that follows. Given that a workplace investigator is an objective third party, workplace investigation reports can often raise issues that appear poles apart from your original risk assessment. In this article, we look at some of the common areas where your risk assessment for the business might be different from the findings of a workplace investigator. Importantly, we also provide tips about what you can do to address such disparities.

Currency of law and facts 
Risk assessments are ideally carried out regularly, utilising all available specialist information and laws concerning your particular workplace. In terms of workplace health and safety, plus industrial laws, it is not uncommon for changes to both statutes and cases to have an impact on workplace requirements. Without an understanding of the current legal state of play, you may have unintentionally overlooked workplace risks, which are then picked up by the workplace investigator. In this case, your risk assessment is out-of-date and can leave any number of circumstances unaccounted for. On the other hand, your risk assessment might in fact be based upon current legal and industry requirements – but the business situation may have changed. Extra staff, new premises or renovations might have created a problematic situation. If a workplace investigation delivers findings that show flaws related to currency of risk information, this can unfortunately be one of those situations of ‘knowing better next time’. But having regular risk assessments carried out by a trained internal or external professional can ensure that you have the best preparation for any future workplace investigation. 
Specialised knowledge
You may be of the opinion that your risk assessment differs from the investigator’s findings due to the investigator’s limited knowledge of your specialist work environment. It is legitimate to raise such concerns with the workplace investigator, particularly if the findings are likely to lead to further action. Remember though that it is not enough to talk in generalisations. Rather than saying: “I do have a safe environment and she knew not to use that ladder,” explain the detailed written policies and training that you provided about unacceptable/ acceptable systems of work and the place of particular items within that system. Note also that it is much better to talk through your concerns about discrepancies during the workplace investigation itself. Investigators are often disinclined to re-open a completed investigation based upon the thoughts of one party. Be open and upfront with the workplace investigator throughout, providing all available information on risk assessments, policies, procedures and staffing. 
Staying up-to-date
A risk assessment should show the risks facing the business, and your educated decision about how or whether to carry the potential for risky outcomes. It has to be realistic and as part of this, it must be current. Business is no place for wishful thinking, and such regular analyses allow you to see the risks with clear eyes. To keep future workplace investigation findings as closely aligned as possible to your risk assessment, current knowledge and understanding of the legal and industrial framework that applies to your specific industry is vital. You or a trained risk professional should know the current risk level for your specific business, and any steps being taken to reduce the burden of risk. Forewarned is forearmed, so it pays to prepare your workplace for the close scrutiny that will inevitably accompany any workplace investigation.

Investigating Fraud? When Do You Have to Tell the Respondent?

- Tuesday, October 28, 2014
Investigating Fraud
Investigating Fraud? When Do You Have to Tell the Respondent?

The possibility that an employee might be committing fraud can raise many emotions. As with other misconduct, disappointment can be pronounced. When fraud is suspected against either the business itself or customers, plain anger towards the potential culprit can also arise. It is this high emotion that creates the necessity for cool heads in any fraud investigation. If you are involved in an investigation where fraud is alleged, timing and a methodical plan are crucial to ensure that the process is sound. Depending upon the nature and extent of the fraud, the time at which the respondent should be told and/or interviewed can vary. The quality of any documented evidence you collect can have a notable effect on admissibility or weight in any later court proceedings. For this reason, adhering to procedural fairness in the workplace investigation will be vital. 

Get prepared

Your workplace investigation plan should include a basic timeline of actions. Top of the list will be the gathering of information relevant to the allegations of fraud. Be careful about how and from whom this will be collected. At this stage, as few people as possible should be involved in order to maintain confidentiality and the integrity of the investigation. Collect interview notes, documents, relevant screen dumps and any other physical evidence that purports to implicate the respondent in the fraudulent activity. This is also a good time to fully assess any possible motivations or overt emotional issues with the informant/s. Any later interview with the respondent needs to be based upon available facts – not any aspersions cast by an angry individual. Make a decision on any need for immediate action, particularly whether police need to be called if an employee is AWOL with fraud proceeds, for example, or data or money is currently being misappropriated. Once you have enough valid information, decide upon your next steps. It may be that the allegations against the respondent are clearly groundless. Perhaps there was a mere accounting error, for example. But if the allegations appear to have some substance, it might well be time to draft appropriate interview questions. Sometimes, the first person you talk to after the claimant is the respondent - but only after other documentary evidence has been secured. This gives them an early chance to explain their story, plus reduces the chances of workplace gossip or slander about the respondent snowballing unfairly. 

The interview

Having secured an interview time with the respondent, think through the nature and order of questions that you need to ask. The basic purpose of the meeting should be explained, without any blunt statements or accusations about the alleged fraud. It can help to be quite specific about the concerns raised by any informants: “There are concerns being raised about some anomalies that Brian found in the customer invoicing drive,” or “Your employer has some concerns about repeated discrepancies in reconciliations over the last six months”. Recalling the imperative for procedural fairness in the workplace investigation, maintain this objectivity throughout the remainder of the interview. Allow sufficient time for explanations, and ask inquisitive questions that demonstrate your open mind throughout the process.

Cater for reactions

Fraud is a serious accusation. Whether or not the respondent is involved in such behaviour, their individual emotions of indignation, shame and/ or anger might well surface. Assess whether the interview needs rescheduling, if a support person is needed, as well as any requests for legal representation. Also give the respondent options for response. Indicate that an immediate response is not required and they might prefer to respond at a later (agreed) time. Explain the remainder of your investigation plan and associated timeline for actions, in order to provide some sense of order to what might well be a moment of shock for the respondent. 

Cool heads rule 

The alleged fraud might tempt employers, owners and managers to simply confront the respondent in angry indignation. Perhaps understandable – but such action must be avoided in order to maintain the integrity of the investigative process. Remember, your objective in carrying out a well-constructed workplace investigation concerning the alleged fraud is to gather quality evidence in a fair and consistent manner. How and when to let the respondent know can be a delicate matter, dependent upon the nature and urgency of the facts in question. 

For training in the best ways of handling this type of investigation, WISE Workplace offers a Certificate IV in Government Fraud Control and a Diploma in Government Fraud Control.

What are Terms of Reference? Do You Need Them?

- Tuesday, October 14, 2014
Terms of Reference
What Are Terms of Reference? Do You Need Them?

Terms of reference (TOR) form a foundation stone for the commencement of any workplace investigation. Much like a recipe, they set out the core people and components of the investigation, as well as the boundaries and methods to be utilised. Without solid terms of reference, an employer’s well-meaning attempt to gather information and fix a workplace problem can fail, or cause even more problems. As well as establishing an understanding of what is required and by when, TOR create an excellent framework for the more detailed investigation plan. Terms of reference can prevent such pitfalls as misunderstandings, unintended breaches of privacy, and negative effects on relationships. 

When should the TOR be developed?

There are no hard and fast rules regarding how and when TOR should be drafted. Some employers start with a Statement of Complaint and flesh out the terms of the proposed investigation based upon this central concern. Others call upon the services of a workplace investigator to actually assist in drafting TOR, particularly where a workplace problem is vast, sensitive, and/or complex. Sometimes it is important to wait and collate some preliminary materials prior to pinning down the exact terms of the investigation. In any event, it is important to start working on your TOR sooner rather than later, and certainly once a workplace investigation is confirmed.  

what will the tor include?
The terms of reference represent what the employer and the workplace investigator have agreed upon. Not surprisingly, both parties are entering into a human territory where all sorts of sensitivities can crop up – emotional, occupational and legal. It is common sense that the TOR will be designed with these issues in mind, creating a clear framework for the investigation. In essence, the TOR should contain the ‘three R's’ of an investigation – the reason, the remit (or scope) and the report. 

The reason section of a workplace investigation TOR will include the general purpose of the investigation, the people and incidents known to be involved, and the types of questions that need answering. The remit or scope sets out the boundaries of inquiry, including documents, people and activities that can be explored by the investigator – and those that cannot. It also includes what is required from the investigator in terms of deliverables, such as interim reports and final actions. For example, this part of the TOR will specify if the investigator is simply fact-finding or is working with a view to dispute resolution or discipline. The TOR then specify what form the final report will take, who can be supplied with copies, and when it is due. Where no report is required and an oral discussion is preferred, the scope and purpose of this discussion should be noted.

What can the TOR achieve?
 As mentioned above, the circumstances leading to the need for a workplace investigation can be quite fraught. Concise and clear terms of reference help to ensure the smooth running of the investigation. They can prevent irrelevant issues being raised (such as old wounds) and provide an element of professional objectivity. Considering the need for procedural fairness in all aspects of employment law, TOR provide the means by which emotive or biased considerations can be eliminated from the investigation. Further, sound terms of reference provide an excellent starting point for the drafting of a workable investigation plan. For both employer and investigator, the chances of misunderstandings are reduced in relation to the many aspects of the investigation’s reasons, remit and desired report. Put simply, good terms of reference can be a guiding light through the sometimes-choppy seas of a workplace investigation.


The Reasonable Person Test Explained

- Monday, September 22, 2014

The Reasonable Person Test Explained

The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. One human causing damage to another is certainly a tale as old as history itself. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. In a way, a bit of retrospective risk assessment has to be carried out by the courts in these cases. What exactly happened here? Who was involved? Was it an accident? Is anyone hurt? How can we fix things? Certainly, most torts (the kinds of acts or omissions that cause damage) are caused by pure accidents or mistakes.

Yet it’s never as simple as ‘oh, look, a mistake was made – let’s all move on’. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Due to the fact that within law the ‘reasonable person’ has a hypothetical presence in workplaces, schools, homes, streets and venues, it pays to understand the basic ideas and applications embedded within this legal standard. And in the context of workplace risks and potential litigation, it is particularly useful benchmark for employers and managers to keep in mind.

Does reasonable mean average?

The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible.

The ‘reasonable person’ in the workplaces

Risky and unfortunate situations arise everywhere in life - and of course the workplace is no exception. Injuries happen, enmity arises, harassment can occur, and unwanted advances are made. And the possibilities for damage, loss and distress to workers, contractors, visitors and clients are so extensive that some days, business owners can question their decision to open the doors! Yet in remembering the careful and prudent ways of the ‘reasonable person’ when it comes to workplace risks, employers can successfully prepare for and respond to hazardous scenarios. Importantly, remember that ‘action’ by an employer also includes ‘inaction’. Turning a blind eye to harassment between co-workers, putting off fixing the air conditioner in summer due to cash flow, and forgetting to wind up the extension cord in the hallway are the sorts of omissions that our ‘reasonable person’ in your situation wouldn’t neglect. Positive actions to prevent harm, such as sexual harassment training and reasonable warning of organisational changes, are examples of the way the ‘reasonable person’ carries on their business.

Going forward, make a rolling risk assessment part of your ‘reasonable’ workplace strategy.

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.

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.

Public Service Misconduct: Hiring an External Investigator

- Tuesday, March 11, 2014

Allegations of misconduct can have a serious effect on employees and your agency’s public image. All employees who work for the Australian Public Service (APS) are required to abide by the APS code of conduct. If it is alleged that an employee has breached the terms of the APS code of conduct the agency they work for can either choose to investigate the matter themselves through their in house human resources department or they can engage the services of an external investigator.

Using an external investigator has a number of advantages but it’s important to be aware of some of potential pitfalls too. Here is a brief guide to help you select the best external investigator for your circumstances and avoid the repercussions of making the wrong choice.

The benefits of using an external investigator
In some circumstances it is simply more appropriate to opt for an external investigator over using in house personnel to investigate allegations of misconduct. These circumstances can include:

  • Where the agency is small and doesn’t have sufficient in house resources available to thoroughly investigate the matter.
  • Investigations requiring specialist expertise is required which can’t be supplied through in house staff.
  • When it’s unlikely that current employees of the agency will be able to conduct an unbiased or independent investigation.
  • Situations where there is a need for the agency to use a third party to maintain public confidence in the outcome of an investigation.

There are plenty of benefits to using an external investigator and many public service agencies choose to bring in a third party when they are investigating allegations of misconduct.

What should you look for in an investigator?
When looking for an external investigator it’s important to find the right individual or team, particularly if the allegations are serious or require specialist knowledge and experience. Here are some of the skills and attributes that make a good investigator:

  • Familiarity with the employment framework of the public service, including the Public Service Act and other relevant legislation.
  • A strong understanding of the Fair Work Act 2009 and its requirements.
  • Good interpersonal and verbal communication skills and the ability to put people at ease when conducting interviews.
  • Strong written communication skills and experience producing written reports which clearly present the evidence on both sides and discuss the reasoning process involved in any decisions.
  • Sound analytical skills and good judgement.
  • Awareness of the elements of administrative decision making including procedures for weighing up evidence and the need for a fair and balanced process.
  • Experience conducting administrative investigations and weighing conflicting evidence to find out the truth.

Allegations of misconduct, if proven, can lead to serious consequences for the employees involved and could affect their ability to work in the future as well as having a significant impact on them financially. It’s important that any investigations are conducted in a fair and unbiased manner to ensure that everyone is treated fairly and in accordance with employment law.

What are the risks of hiring the wrong investigator?
When an external investigator lacks the experience or expertise to handle an investigation appropriately it could lead to a decision being challenged in court and ultimately set aside. This can lead to a waste of time and resources for the agency involved and could make it more difficult for them to effectively enforce behavioural and conduct standards for employees in the future.

If you have made the decision to hire an external investigator for your public service agency make sure you choose a firm or individual with the skills and capabilities of carrying out a thorough unbiased investigation which complies with legal requirements.

WISE Workplace is on the Australian Taxation Office panel and has a long history of providing investigation services to Commonwealth agencies. All our investigators hold private security licenses and a minimum of Certificate IV qualifications in government investigations. Wise Workplace also provides nationally recognized training in government investigations, and is recognized as a national expert in investigating allegations of misconduct, bullying and harassment.

Contact us today to find out how we can help you with your investigation. The more rapidly and effectively you can deal with allegations of misconduct in the workplace, the sooner your organisation can move forward.
 

Use of social media records as evidence of misconduct

- Tuesday, November 05, 2013

There is no doubt that social media is playing an increasing role in our lives.  

Have you ever been handed a folder of print outs from Facebook and told; “Here you go, I want this person out!”?

An increasing number of organisations are developing social media policies as a starting point to control inappropriate staff interaction online, but the question still arises: ‘how do you prove that someone has breached the policy?’

Where do you start?

Initial questions that need to be asked include;  What was said?  Is it work-related?  Who wrote it? At first glance, the latter question may seem obvious, but in more than one case, someone impersonating someone else has posted comments. To take effective administrative action, you must “prove” who made these comments. This is known as “attribution of the records”.

In a recent case conducted by Access Forensics, alternate records from the social media site identified the true author of the comments and a just outcome was achieved.

In another case, a client became concerned with internet records which appeared to suggest excessive use of the company’s IT system to visit social media sites.  However, closer inspection confirmed that most records were generated as a result of automatic processes not initiated by the user, nor as a result of visiting the social media site.

To effectively attribute a digital record to a particular author, it’s imperative that the investigator uses good, old fashioned interviewing skills, to question the alleged author about the creation of the social media post. They should also collect other sources of evidence and circumstances surrounding the case, to avoid attributing the post to the wrong person.

So what do you need from your Facebook printouts?
  • The name of the person who saw the comments on Facebook
  • The name of the account where they were seen
  • The time and date of printing off the posts
  • The name of who did the printing
  • A description of how they did the printing

All this information can be easily obtained in a statement that should accompany the Facebook pages and give credibility to the source of the evidence. These steps won’t prove who said what, but they will give weight to the evidence that you have.

Written by Harriet Stacey of WISE Workplace in collaboration with Clinton Towers, of Access Forensics