Complaints Management Under the NDIS

Vince Scopelliti - Wednesday, August 09, 2017

The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  

REGULATORY FUNCTIONS OF THE NDIS

Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

Providers who wish to operate within the NDIS must:

  • Comply with all state and federal laws
  • Participate with the NDIS Code of Conduct
  • Engage in the NDIS Resolution Process

mandatory reporting regime

In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

According to the NDIS Quality and Safeguarding Framework (released 9 December 2016), once the NDIS has been rolled out and takes effect, registered providers must notify all 'serious incidents' to the NDIS Complaints Commissioner.

These include: 

  • Fraud-related incidents
  • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
  • Obvious neglect
  • Serious unexplained injury
  • The death of a scheme participant (This must be notified regardless of how the participant died)
  • Unauthorised use of restrictive practices

It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

How the ndis complaints procedure works

Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

The Commissioner will also:

  • Investigate serious incident reports
  • Review breaches of the NDIS Code of Conduct

In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

Finally, the Senior Practitioner is entitled to hear matters relating to:  

  • Inappropriate or unauthorised use of a restrictive practice
  • Unmet disability support needs. 
The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 

WHAT ARE PROVIDERS REQUIRED TO DO?

It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.

WHAT HAPPENS IF A PROVIDER ISN'T COMPLIANT? 

In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us

Investigating Allegations of Abuse in Care in Aged Care Facilities

Vince Scopelliti - Wednesday, August 02, 2017

Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

what is elder abuse?

According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

There are many different forms of elder abuse, including:   

  • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
  • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
  • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
  • Neglect or Abandonment - failing to provide a requisite standard of care. 
  • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
  • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

what are the signs?

Potential signs of the various types of elder abuse include:

  • A bad or unusual relationship between a care provider and recipient. 
  • Unexplained injuries
  • Insistence by the caregiver that the victim is never attended to without them being present.
  • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
  • Ongoing poor hygiene and living conditions.
  • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

common risk factors for elder abuse

In the context of care facilities, the greatest risk factors for elder abuse include: 

  • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
  • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
  • Excessive responsibilities and inadequate levels of support. 
  • Inappropriately vetted staff, including those with substance abuse issues. 
  • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
  • Inadequate complaint handling mechanisms. 

Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

How to prevent the risk of ELDER ABUSE

Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

  • All resident and staff concerns are appropriately listened to and noted. 
  • All staff have have undergone criminal checks.
  • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
  • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  

COMPLICATIONS ARISING FROM THE AGEING MEMORY

Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help. 

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

facts of the case

Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

  • Making fun of a resident
  • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
  • Continuing to drink tea with another co-worker while residents were calling for help.
  • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

decision of the commission

In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

  • Ms Tavassoli had been constructively dismissed
  • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

Legality of secret recordings

Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

  • Is notified in writing, before the intended surveillance, that it will take place.
  • The surveillance devices are clearly visible.
  • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

The Key message FOR EMPLOYERS

The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace

Performance Management to Avoid Bullying Complaints

Vince Scopelliti - Wednesday, July 19, 2017

Staff who are subject to increased employer supervision or performance management may feel that they are being personally victimised, attacked or even bullied.

It may be difficult to distinguish between reasonable performance management and bullying, especially when the worker involved is sensitive by nature, has personal stress factors, fails to acknowledge their own performance shortcomings or is emotionally reactive. This leads to an increased risk of bullying complaints when staff members are being performance managed. 

So how can employers use performance management steps to manage their staff to meet operational requirements without risking censure, criticism or complaints of workplace bullying?

When is performance management reasonable?

The following guidelines apply to reasonable performance management:

  • 'Reasonableness' should be judged objectively, rather than basing it on the worker's perception;
  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A particular course of action may still be 'reasonable action' even if all the separate steps, when seen in isolation, are not;
  • Consideration may be given to whether the management action was a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 

To guard against the perception of bullying, employers need to ensure that they: 

  • Provide clear instructions, information and training to all employees;
  • Establish that employees are aware of and understand the business' performance and disciplinary policies and procedures;
  • Take management action that is justified and follow a process that is procedurally fair and consistent;
  • Provide timely feedback to staff when the issues arise
  • Document all performance matters and disciplinary steps clearly. 

Even though the process is designed to be cooperative and consultative, employees may still object to performance management and complain that they are being bullied, victimised or harassed.

The Commonwealth at section 789FD Fair Work Act 2009, specifically states that an employer is not bullying their staff if they engage in 'reasonable management action carried out in a reasonable manner.'

In practice, reasonable management (as opposed to bullying) means that:

  • A course of action can be considered reasonable from an objective examination even if an individual step in the process is not.
  • Any action taken must be lawful and not 'irrational, absurd or ridiculous'
  • Management should ensure compliance with policies or procedures that are established and already in place. 

Regardless of how aggrieved the employee feels, or how they perceive their employers actions to be intended, a tribunal will consider the reasonableness of the performance management action objectively.  

WHAT IS A REASONABLE MANNER?

What is 'reasonable' is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. 

This may include consideration of:

  • The particular circumstances of the individual involved
  • Whether anything should have prompted a simple inquiry to uncover further circumstances
  • Whether established policies or procedures were followed, and
  • Whether any investigations were carried out in a timely manner. 

The Role of the performance improvement plan (pip)

When used to its maximum potential, a PIP can: 

  • Identify areas where individual employees are under performing or failing. 
  • Provide suggested methods whereby employees can improve their performance, whether to meet minimum required competency levels or, at the other end of the spectrum, or to assist employees to excel in their roles. 
  • Provide objective evidence in circumstances where an employee's performance is substandard and it is anticipated that their employment may eventually need to be terminated;
  • Help managers and employers observe patterns in employee behaviours and performance to identify factors contributing to poor performance. 

 It is important that PIPs are drafted in accordance with the organisation's workplace behaviour management policy. 

Managers should take the time to:

  • Determine the specific root cause of the poor performance;
  • Communicate with the employee in an open, clear and practical manner;
  • Focus on the problem, not the person; and
  • Set goals in consultation with the employee so that the employee knows what the specific concerns are and how to improve their performance. 

tHE three golden rules for employers

To guard against the increased risk of performance management bullying complaints, employers seeking to implement a performance management regime must ensure that:

1. Each employee has a clear, logical, objective and easily accessible position description according to which they can be measured (and self-measure). 

2. The employer's desired improvement outcomes are objective, have been explained to the employee, and are clearly understood. 

3. The employee is provided with employer, and where appropriate, peer support, and guidance to assist them in achieving the desired performance outcomes. 

Following the three golden rules can help employers avoid unfounded claims of workplace bullying when they are improving the effectiveness of their business through performance management procedures. 

Should you require a workplace investigation to determine whether management action has been reasonable or whether it constitutes bullying, contact WISE Workplace

Protecting Whistleblowers During Workplace Investigations

Vince Scopelliti - Wednesday, July 12, 2017

Feedback from employees is crucial to employers wanting to keep their finger on the pulse of a business. It is essential for management to be aware of risky behaviours occurring within a workplace, such as bullying, circumstances giving rise to easily preventable worker's compensation claims, failure to comply with regulations, corruption, or even criminal activities such as embezzlement, theft or fraud. In many circumstances, this information will only become available through the cooperation of whistleblowers. 

In order to ensure that accurate information is conveyed, it is essential for businesses to make sure that potential whistleblowers are protected from persecution, ridicule or reprisals during the investigation. But how does this occur in practice?

WHAT IS A WHISTLEBLOWER?

A whistleblower is somebody who reports internal wrongdoing within an organisation, either to a senior member of the organisation or to an external authority, such as the police or the Australian Securities and Investment Commission (ASIC). 

Generally speaking, protection is afforded to those who are current employees, officers or even contractors who are engaged in providing goods or services to an organisation. 

Information which is provided to an employer by a whistleblower is considered a 'protected disclosure', which must remain confidential and which can only be passed on if specifically authorised by law or by the whistleblower. 

how are whistleblowers protected?

There are various sets of state-based legislation which provide different types of protection for whistleblowers operating in the public sector. However only in South Australia are those working in the private sector afforded similar protections. In SA, the Whistleblowers Protection Act steps in to protect people who provide information:
  • Which the genuinely believe is true.
  • Which can be considered to be in the 'public interest'.
  • Which is provided to an appropriate authority. 
Nationally, the Australian Standard AS 8004-2003 sets requirements for the implementation of whistleblowing schemes in private enterprises. Under these requirements, the identity of the whistleblower must not be disclosed unless specifically authorised by law, and the information provided must also be kept confidential. 

At federal level, the Commonwealth Corporations Act 2001 also provides specific protections for whistleblowers, which prohibits any action, including personal or professional retaliation, from being taken against a person who has disclosed wrongdoing. In the event that any such retribution occurs, the Act provides a civil right for whistleblowers to sue reinstatement of employment. 

Alternatively, if a whistleblower suffers any other loss as a result of their disclosure, they can claim compensation for damages suffered directly from the alleged wrongdoer. 

The Act stipulates that whistleblowers cannot be subjected to criminal prosecution or civil litigation because of their involvement in providing protected information.    

However in order to fall within the protections set out in Paragraph 1317AA of the Act, it is necessary for:
  • The whistleblower to provide their name.
  • There to be reasonable grounds to suspect a breach of the Act and the report is to be made in good faith.
  • The whistleblower to be a current employee or director (of course, this is problematic in circumstances where the person was recently sacked or otherwise resigned from their employment)
In June 2017, the federal government announced its intention to introduce legislation which updates and improves on whistleblower protections, including potentially incentivising whistleblowers with financial rewards for providing information which has resulted in successful prosecutions.   

HOW YOUR ORGANISATION CAN ASSIST WHISTLEBLOWERS

Although Australia has some legal provisions in place to ensure that whistleblowers are protected from reprisal or other involvement in litigation, there is still much more that can be done to encourage the reporting of wrongdoing observed within a company. 

If you are concerned that your workplace may not provide sufficient incentive to employees to report wrongdoing, or provides insufficient support to those who do reveal sensitive information, sign up to WISE Workplace's 24/7 whistleblower program, Grapevine. The program offers independent monitoring of complaints and assessments of appropriate methods of dealing with complaints, as well as advice on how best to advise your employees that they are entitled to whistleblower protections. 

Ensure that your organisation is strengthened internally by implementing a strong whistleblower policy to guarantee that all staff feel comfortable providing information relating to misconduct or inappropriate behaviour. 

How Can HR Support Staff During a Workplace Investigation?

- Wednesday, June 28, 2017

Where a complaint has been made by one staff member against another, and a workplace investigation takes place, all kinds of emotions can be running high. 

People participating in a workplace investigation, whether as complainants, respondents or even witnesses, can suffer symptoms of mental health issues such as depression and anxiety, as well as emotional distress. 

Respondents in particular can feel abandoned and cold-shouldered, especially in cases where HR departments decide to take a 'hands-off' approach while the investigation is being conducted. If a respondent is also suspended from work during the process, they may also feel prejudged and already declared guilty. 

In light of this, it's extremely important that employers ensure that investigations are handled fairly and impartially, and that all participants are supported. 

Here's how HR can help support participants throughout a workplace investigation.

THROUGH TRANSPARENCY AND COMMUNICATION

First and foremost, effective communication and transparency are vital from the outset. A failure to communicate can worsen distress and lead to participants thinking the worst. 

Decide on being transparent from the beginning. This involves taking the complaint seriously, listening to all sides, and making sure all participants know how the complaint will be handled. It's also important to check back that they have understood what was said and address any misunderstandings (something that can easily happen when emotions and tensions are high!)   

SETTING OUT THE PROCESS

It's important to get to work quickly, appoint an investigator, and make decisions regarding the scope of the investigation, the timeframe, and actions to be taken after completion. However, do be prepared for the process possibly taking longer than anticipated. 

Once you've decided on the process, make sure to keep everyone informed of how the investigation will be conducted and what they can expect, and aim to keep communication lines open throughout. Also reassure the respondent that they are not in any way being prejudged, even if they have been suspended for a time during the investigation. 

APPOINTING A SUPPORT PERSON

Participants need to know they have someone to go to for emotional support, who can also explain the process and answer any questions they may have. 

One thing to note here is that employees may not necessarily show their emotions at work and this could lead you to think they are fine and don't need assistance, when in fact the opposite is true. 

Appoint a support person whose role it is to regularly check up on the person and provide support without taking sides. 

CONDUCTING INTERVIEWS WITH RESPECT 

Interviews need to be conducted fairly and withe respect and non-partiality. 

It's important to avoid acting like an interrogator; your job is to uncover the facts and truth of the matter and not to extract a 'confession'. This means all participants should be treated with respect and empathy, and given breaks during interviews if required. 

OFFERING POST-INVESTIGATION SUPPORT

An investigation can affect everyone and can reduce morale and trust in a workplace. It may in some cases even lead to employees seeking work elsewhere after feeling demoralised by the whole experience. 

In a case where the respondent has been restored to duty, it may be hard for them to simply go back to 'business as usual'. The same may also apply to complainers, particularly if the investigation did not go the way they wanted. 

Be prepared for it to take some time for trust and morale to be restored, and offer mentoring and support after the process to anyone who needs it. Be proactive in rebuilding trust and positive relationships. 

Lastly, we can provide expert assistance with workplace investigations. Feel free to contact us for more information.  

Handling a Paranoid Response to Workplace Investigations

- Wednesday, June 21, 2017

In conducting workplace investigations, both the alleged victim and perpetrator and potentially even witnesses may have an intensely personal reaction to the accusations. But what happens if one of the people involved in a workplace investigation has a mental illness or otherwise suffers from poor mental health? 

In this situation, a workplace investigation can be perceived as a direct personal attack - for example, a complainant may feel that the mere fact of an investigation means that they are not taken seriously or believed in their allegations. A respondent to a complaint may feel vilified or victimised by having to respond to the claims at all. In these circumstances, it could be easy for paranoia to creep in during the investigative process. 

So what additional steps should a prudent employer take during the investigative process when dealing with an employee who struggles with their mental health? 

POTENTIAL CONSEQUENCES OF FAILING TO CONSIDER MENTAL HEALTH

The State of Workplace Mental Health in Australia report, released by TNS Australia and Beyond Blue, has found that 45% of all adult Australians will experience a mental health condition at one point in their lives. In addition, untreated mental illness costs Australian Workplaces almost $11 billion annually.  

This financial cost (calculated on the basis of absentee figures, 'presenteeism' where employees are physically present but not performing to their maximum capabilities, and compensation claims) is reason enough to take mental health in the workplace seriously, and to ensure that workplace investigations do not run roughshod over the rights of employees with mental health concerns. 

However, even more concerning is the potential for a poorly handled workplace investigation to exacerbate an employee's mental illness or even to cause a new psychological injury. 

It is crucial for employers to ensure that workplace investigations are conducted sensitively and have regard to any disclosed or hidden mental health issues suffered by employees. This is particularly the case given that it is an employer's legal obligation to ensure that workplaces are free from conduct which could reasonably be foreseen to cause injury, including psychological injury, to employees. A failure to do so can leave the employer exposed to a compensation claim.  

WHAT SHOULD AN EMPLOYER'S RESPONSE BE?

Employers must ensure that investigators don't dismiss signs of paranoia as an employee being 'silly' or simply difficult. 

It's important to recognise that the employee does genuinely feel under threat, without agreeing with them, and to lay out any evidence clearly. 

It can also be helpful to detail how the investigation will proceed to avoid the risk of misunderstandings, for example an employee deciding that more than a week has passed therefore an adverse finding must have been made against them. 

Honesty and fairness are key in any workplace investigation, but it is particularly important to demonstrate both when dealing with an employee who is feeling under attack. It's essential to remain patient, and work on building trust and rapport in interviews.  

Employees should also be able to access a support person of their choice to participate in any interviews or other formal steps of the investigation. 

Being available and following through on any actions that have been decided on, however minor, may also help lower a fearful employee's anxiety. 

If the initial complaint has caused or substantially contributed to an employee's poor mental health, and this has resulted in the employee receiving a medical certificate, an employer should consider not permitting the employee to return to work until the investigation has been resolved. Any decision along those lines should be made strictly in consultation with the employee's medical team and the employee themselves.  

    HOW WE CAN HELP

    Taking these simple steps will help to ensure that your staff do not feel victimised and do not become unduly paranoid or concerned about the investigative process and potential outcomes.  

    At WISE Workplace, we can help you navigate your way through the potential minefield of workplace investigations. We offer full investigation services if you prefer to outsource, and also training to assist you in running your own investigations.

    The Risk of Ignoring Reports of Sexual Abuse

    - Wednesday, May 31, 2017

    The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. The Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, 

    This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers 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. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer 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. 

    Courage TO TELL 

    In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'

    SILENT DAMAGE

    Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 

    LISTEN OUT

    Busy employers can be tempted to argue that they can’t be everywhere at once. Although employers are certainly not blind to the potential for unacceptable behaviour, there can however be an built-in 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 Matthews the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Matthews had two discussions with a representative of the employer was certainly sufficient grounds to say she provided 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 Matthews, compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures to follow workplace health and safety procedures 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 

    It is that failure to act that can cause so much preventable harm. At the moment when the Area Site Manager 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 serious 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 those faced by Ms Matthews. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

    ACT EARLY 

    The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, 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

    Bullying: I've Been Talking to HR but Nothing's Happening

    - Wednesday, May 24, 2017

    If you have been the victim of bullying, the HR department in your organisation is generally the first port of call for raising your concerns. 

    It can be mentally or emotionally challenging to make a complaint to HR. You may feel exposed or vulnerable because you are concerned that your complaint may not be believed, or that the person about whom you have made a complaint has been told that you have "dobbed" on them.

    Depending on the nature of your complaint, or the relationship of the HR personnel with the person or people about whom the complaint has been made, you may have concerns that a workplace investigation will not be conducted thoroughly or your grievance not taken seriously. In any event, your working life can become very uncertain after you have made a complaint to HR. 

    Taking a company issue to the HR team can also be a lengthy process, and it may feel like nothing is happening as time ticks by. But it's important to remember that much of the HR investigation will be taking place without you being directly aware of it. 

    Here is a brief look at how the process works.

    THE FIRST STEP

    After you have aired your grievance, it's important to try and remain focused and perform your job to the best of your ability. If you feel you are unable to do so, it may be best to take a few days off work on sick leave until you feel stronger, and better able to approach your tasks or face your co-workers.    

    THE COMPLAINT PROCESS 

    There are certain steps which a diligent HR team must follow once a complaint has been brought to their attention. Initially, the complaint must be assessed. 

    Next, the HR department will meet with relevant senior staff, who must make a decision as to what the appropriate follow-up actions will be.

    Depending on the severity of the alleged behaviour, this may involve HR having a quiet word to the other person or the initiation of formal disciplinary proceedings. The latter is more likely to be the case if the person being complained about is already being performance-managed in relation to prior issues. 

    Be aware that it may well take HR a week or even longer to finalise the preliminary investigation process, and make and communicate a decision on the best way forward. 

    Privacy obligations to the other employees involved may also mean that you are not entitled to know the full details of what further action will be taken.

    WHAT CAN HR TELL YOU?

    At a minimum, HR is required to advise you of: 

    • The fact that it has received your complaint, is taking it seriously and is conducting appropriate levels of investigation. 
    • What Employee Assistance Programs are available. 
    • Who the liaison person for these programs is (if your organisation has one) and how to contact them. 

    WHAT IF THERE IS A FORMAL WORKPLACE INVESTIGATION? 

    For serious complaints, your company may engage the services of a third party workplace investigator. 

    If this occurs, then you are entitled to: 

    • Be one of the first people interviewed if a detailed investigation is commenced. 
    • Receive a copy of your interview transcript or detailed statement, which you should sign if you agree that it is an accurate record of what you told HR

    If your complaint is sufficiently serious, then the respondent facing your allegations will be advised of the exact complaints against them. Although they are also likely to be interviewed, you are not entitled to a copy of their transcript or statement. If you are concerned about any bias, however, be aware that their interview will be recorded.

    Once these steps have been finalised, the investigator will draft a report for the review and consideration of the HR department. That report (hopefully completed within a timeframe of less than three weeks) will then be provided to the relevant decision-makers within your organisation for a final determination. 

    You will generally be advised that the investigation has been completed, what the findings are, and of any further action steps as they concern you. But in most cases, you will not be specifically advised of any punishment to be meted out to the respondent. 

    BE PREPARED FOR WORKPLACE CHANGES

    If your complaint is serious, you may be asked to move or transfer offices or departments. This is not a punishment, but is designed to ensure that your wellbeing is protected, generally by reducing the likelihood of any contact occurring between you and the respondent. 

    Try not to respond by being offended or otherwise feeling indignant. All businesses, regardless of their size, have legal obligations to all employees. Your employer cannot simply fire workers who have issues with other employees, and other considerations may mean that the respondent cannot be moved. Bear in mind that your organisation is simply trying to find the best outcome for all concerned. 

    If you are nervous about making a complaint or otherwise wish to obtain guidance on how whistleblowers should be dealt with, contact WISE Workplace today for detailed assistance with all aspects of the workplace investigation process.