What are the Steps Involved in An External Investigation

Harriet Witchell - Thursday, April 10, 2014

 

Workplace misconduct, bullying and harassment are surprisingly common among Australian organisations. Although many problems can be managed and resolved through in house human resources and management, sometimes hiring an external investigator is the best option.

A good workplace investigation follows a series of steps to ensure a fair outcome for everyone and an unbiased investigation. Although every investigation is slightly different here is a brief outline of the steps that are usually involved in the investigation process:

1. Define the scope and Terms of Reference
Before engaging an external investigator or with the assistance of the investigator, clients must determine what is wrong with the behaviour that has been reported – define the scope of the investigation and prepare initial allegations or issues to be investigated. Clearly articulating the scope and allegations made in writing to the investigator is a high determinant of success for the investigation and welfare of staff involved.
2. Appoint an external investigator
It’s important to take time to find the right external investigator. A poorly undertaken investigation could be a waste of time and money and could leave you liable for additional costs in the long term, especially if a dissatisfied employee decides to take further action against the outcome or the way the investigation was conducted. Make sure you find a professional investigator with a Private Investigator licence. The licencing process ensures minimum qualifications/experience, and a code of practice. After establishing the correct licence find an investigator with a good track record, solid experience and understanding of the law, particularly in the specific area you are investigating.
3. Analyse the information that’s available
The first step an external investigator should take is to thoroughly examine the information that’s available. In cases of harassment this means looking at all the records and any evidence on either side and gaining a general understanding of the circumstances, workplace policies and any issues that could have led up to the alleged bullying or misconduct. Once the investigator has an understanding of the situation he or she can make an informed decision as to how to proceed.
4. Interviewing the complainant and witnesses
After the investigator has discussed the situation in depth with the client, the next step is to interview the complainant, any witnesses to gather further information. Interviews should be conducted in a private location, recorded and allowing the interviewees to have a support person present if they wish. Copies of records must be provided to individuals to check and sign. In many investigations the initial interviews may reveal new or different information or additional leads. If this is the case, follow up interviews may be required to verify or further investigate new allegations or information.
5. Examination of records
The investigator should be given access to all relevant documents, emails and available digital data to corroborate statements made by witnesses. To ensure impartiality, the examination of disciplinary records should only be undertaken if relevant to the facts at issue. The final decision maker can use prior disciplinary records to determine an appropriate penalty but this should not be considered at the investigation stage.
6. Putting the allegations to the respondent
Only when all the evidence has been gathered is it appropriate to speak to the respondent. Speaking to the respondent last ensures that all relevant allegations and evidence can be put to the respondent for a full and fair response. It is a requirement to meet the obligations under procedural fairness to provide the respondent the opportunity to respond to all allegations this should be done in an environment that is supportive. Audio record this interview wherever possible and make sure the respondent gets a copy to sign. Respondents should always be given the opportunity to have a support person present to give support but not advocate on their behalf. It is fair to provide an opportunity for a written response to be provided also.
7. Analysis and report
Once all the information has been obtained, the investigator will analyse the information and produce a report detailing their findings. The report should detail the investigator’s findings, whether the allegations of misconduct or bullying can be upheld and show how they reached their conclusion. They may also make recommendations for further action by management.
8. Notify parties involved
The complainant and the respondent should be notified of the outcome of the investigation and what further steps are required on both sides. It’s important that any workplace investigation follows a logical process and that findings are carefully detailed to avoid further legal action and ensure a fair outcome. A well-managed investigation can help resolve the situation and lets everyone move on as quickly as possible. Contact us today if you have any questions about the investigation process or to find an experienced, professional external investigator.

Changes to Anti Bullying Legislation: the Effects so Far

Harriet Witchell - Tuesday, March 25, 2014

New changes to workplace bullying legislation have so far showed underwhelming results according to a Fair Work Commissioner with the first substantive order under the new act being made almost three months after the new system came into effect. The changes were made to the Fair Work Act 2009 last year in response to the recognition of the prevalence of bullying and harassment in Australian organisations and took effect on January 1 this year. The impact of bullying is believed to cost Australian employers millions each year in absenteeism and lack of productivity.

The new laws mean that workers who believe they are being bullied at work can now lodge a complaint directly with the Fair Work Commission. The Fair Work Commission has been given the power to implement any remedy they believe appropriate apart from financial compensation to deal with specific incidents of bullying at work.

Although this new legislation came into effect at the beginning of the year, early reports show that there hasn’t been the anticipated dramatic increase in complaints lodged with the Fair Work Commission. However, it is still fairly early on and the number of complaints could rise in the future.

What has been done so far?

The first official ruling was made on March 21st by Lea Drake, Senior Deputy President of the Fair Work Commission and directions included prohibiting an employee to have any unaccompanied contact with a co-worker or making any comments about the co-worker’s clothing or appearance.

The decision was made after a conference on March 4 and directions also stated that the respondent (the employee accused of bullying) should avoid sending emails or texts to the co-worker except in an emergency, should complete any exercise undertaken at the employer’s premises before 8am and refrain from raising work related issues unless first notifying the Chief Operating Officer or his subordinate.

The applicant was also ordered not to arrive at work before 8.15am. The parties have both been given leave to have the matter re-listed for a later conference if there are any difficulties implementing the orders.

According to workplace tribunals commissioner Anna Cribb, there have been 66 bullying claims made so far under the new system, nine of which were withdrawn in the early stages. This is lower than the predicted 67 claims a week but there has been an element of confusion as to whether alleged acts of bullying committed before January 1 can be included in claims and this may have impacted the level of reporting.

What are the main types of claims?

The majority of claims made so far under the laws have fallen into one of two categories according to HR publication OHS Alert. According to Commissioner Cribb the majority of reports involve employees being bullied either by supervisors or managers or by a group of employees. There were also two cases of supervisors reportedly being bullied by employees.

Although the number of complaints lodged so far falls below what was anticipated, the bullying tribunal’s helpline has reportedly been receiving in excess of 200 calls per week.

How effective is the legislation in dealing with complaints?

It is believed that the Fair Work Act legislation regarding reasonable management action will apply in a significant number of workplace bullying allegations. Many of the applications made by employees regarding bullying by a supervisor are believed to fall into this territory with the need to clarify what exactly constitutes reasonable steps taken by management and what would be classified as harassment or bullying.

Other legislation involving bullying, notably workers’ compensation laws in different states, have clear exclusions as to what behaviour constitutes reasonable direction and disciplinary action by managers and supervisors. So far the Fair Work Act legislation has a certain amount of uncertainty around what behaviour is excluded from further action. It is believed that this could lead to employers being able to claim reasonable disciplinary action rather than bullying and therefore avoid further penalisation.

The Fair Work Commission has recently ruled that alleged bullying activities which took place before January 1 are admissible under the new scheme, and this could lead to an increase in the number of complaints lodged.

Is your business suffering from allegations of workplace bullying? Bullying can be difficult to determine and often an impartial investigator is the best way to ensure a fair result. Contact us today to find out more about what we do and how we can help you effectively deal with claims of harassment and bullying in your organisation.

Teacher Awarded Compensation over Twitter Defamation

Harriet Witchell - Tuesday, March 18, 2014

Workplace harassment can happen in a number of different environments, not just in the office as was upheld by a recent ruling in the NSW district court. In the first case of its kind, NSW teacher Christine Mickle successfully sued a former student for defamation via popular social media platform Twitter. The student was ordered to pay $105,000 in compensation for comments made on Twitter and Facebook.

Workplace harassment and bullying are a real issue for many employees. It can be extremely distressing for employees to be victims of bullying in the workplace but when this continues online over social media it can be even more devastating. Being harassed over the internet means that employees have no escape from bullying, even when they are at home, and with the widespread use of smartphones, negative and derogatory comments can follow them around wherever they go. The Twitter defamation case demonstrates that workplace harassment via social media is actionable and can have serious financial consequences for those who engage in it so it’s important that it is taken seriously.

Cyber bullying has been in the media for a number of reasons recently with calls for stricter laws governing the behaviour of cyber bullies and trolls along with increased awareness of the effect this type of harassment has on victims. In the case of Mrs Mickle, the effects of the defamation were described as ‘devastating’ and resulted in her taking an extended period of sick leave and only returning to work on a limited basis.

What is defamation?
The law regarding defamation is most commonly thought of in relation to media organisations and newspapers who publish false or negative information but the law can equally be applied to businesses and other organisations. Defamation is the publication or dissemination of false information which could damage another person’s reputation.
It’s very important for businesses and other organisations to be aware of the potential for defamation and be extremely careful when posting anything about another organisation or a current or former employee. Material posted on social media networks can be seen as defamatory if it:
  • Says that someone is dishonest or disloyal.
  • Makes personal statements about them which could cause someone else to think less of them.
  • Accuses them of doing something they didn’t.
  • Makes negative assertions about their capability of doing their job.

To count as defamation something doesn’t have to be overtly untrue, it can be argued that a statement which makes implications can also be considered to be defamation.

Make employees aware of the risks of social media
If you hear complaints that employees are posting negative comments about their co-workers on social media it’s important to take the allegations seriously. Social media harassment and defamation can lead to serious consequences for individuals and organisations. Make sure your employees are aware of the consequences of talking negatively about each other on Twitter or Facebook and help create a culture that discourages social media harassment and bullying to make your organisation a safer and healthier environment for everyone.

Workplace Bullying - Effective Responses

Harriet Witchell - Tuesday, February 11, 2014

 

Video: The anti-bullying amendments to the Fair Work Act, introduced on 1 January 2014, mean that employers can no longer overlook complaints of workplace bullying. It sends a clear message that bullying in the workplace will no longer be tolerated.

WISE CEO Harriet Stacey gives examples of recent instances when workplace bullying has been left unchecked with tragic consequences. She then discusses the steps employers can take to see a reduction in workplace bullying, outlining three crucial elements:

  • Strong policies
  • Effective Training
  • Consistent Action.

Only when all three are implemented and working together will your workplace achieve an effective reduction in workplace bullying.