Phil O'Brien's Blog (26)

Workplace bullying and sexual harassment: no complaint, no witnesses

What do you do if you know or suspect that the culture is bad & that bullying & sexual harassment is happening, but you don’t have any proof or actual complaints.

This can be tough as you have a duty of care to take all reasonable steps to provide a workplace that is free from bullying & sexual harassment, so I recommend a 3 step approach.

1. Conduct training to outline what bullying & sexual harassment are, the behavioural expectations of your organisation…

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Added by Phil O'Brien on April 24, 2018 at 8:00 — No Comments

Workplace investigations: Avoiding bias and conflict of interest

How can you avoid being accused of bias or a conflict of interest during an internal…
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Added by Phil O'Brien on April 23, 2018 at 14:00 — No Comments

Workplace Bullying: HR or WHS issue?

Having investigated 100s of workplace bullying/harassment complaints and conducted many training sessions. I have found that the requests/engagements have always come from the HR department or another senior manager (if there is no dedicated HR) but never from a manager involved in safety or WHS. 

Would a shift in responsibility for the handling of bullying and harassment complaints and training from HR to WHS/HSE affect the process and how bullying and harassment…

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Added by Phil O'Brien on April 23, 2018 at 13:00 — No Comments

Workplace Complaint Investigation - reluctant complainants

How many of you have encountered the problem when a complaint is made but the complainant tells you that they don’t want the matter investigated

I often get asked by HR professional and managers, “What do I do if someone makes a complaint and then says that they don’t want me to do anything, they just wanted me to know.”

Despite what people think this is not a difficult situation, it becomes all about ownership of the complaint.

Once someone has made a complaint…

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Added by Phil O'Brien on March 19, 2018 at 10:30 — No Comments

Workplace Investigations: How to set out allegation letters

Workplace Investigation Allegation Letters. This article addresses the how and the format of allegation letters.

In a workplace investigation allegation letters are used to advise the person subject of the complaint about what has been alleged and also to invite that person to attend an interview to provide their version of events or their side of the story.

There are certain components that I recommend you include in an allegation letter, the…

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Added by Phil O'Brien on February 13, 2018 at 8:00 — No Comments

Workplace investigations: drafting allegations

Workplace investigations drafting allegations – One of the most important parts of workplace investigations is the drafting of the allegations to be put to the person subject of a complaint. There are a number of important considerations;

Timing: Personally I interview the complainant first, then witnesses and then gather any other available evidence before attempting to draft allegations. I know of others who like to interview the respondent…

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Added by Phil O'Brien on February 12, 2018 at 8:00 — No Comments

Workplace Investigations - Do it yourself or call in an expert?

Conducting workplace investigations into employee misconduct or complaints such as bullying, harassment or sexual harassment should be fairly straight forward and not beyond the skill set of managers or generalist HR professionals or is it?

Consider the case of Paulson v Industrial Relations Secretary (Department of Justice) heard at the NSW…

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Added by Phil O'Brien on December 6, 2017 at 8:00 — No Comments

Sexual Harassment Investigation

With the increasing publicity surrounding sexual harassment in Hollywood and the #MeToo campaign it may only a matter of time before there is an increase in the reporting of sexual harassment complaints in the workplace, is your organisation ready to deal with complaints?

Responding promptly and correctly is in the best interests of victims and the organisation.  For the organisation or business failing to deal with complaints can result in costly litigation,…

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Added by Phil O'Brien on November 28, 2017 at 8:17 — No Comments

Why does your organisation need Anti Bullying Training?

 

  1. The make sure that you employees understand what workplace bullying is and what it is not
  2. To support the health and well being of your employees by taking steps to eliminate bullying from your workplace
  3. To support your policies, polices alone cannot stop bullying
  4. To make sure that you employees know the consequences if they engage in bullying in the workplace
  5. To show your employees that you are serious about protecting their health and well…
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Added by Phil O'Brien on October 16, 2017 at 17:00 — No Comments

Are managers and HR professionals the forgotten victims of complaints in the workplace?

We know that bullying, harassment and sexual harassment in the workplace is stressful to the victims, but it is often forgotten that the responsibility for dealing with and/or investigating these matters can also be very stressful on managers and HR professionals.

I wonder if this stress is the cause of investigations either not being done at all or being done in a less than effective manner. Managers and HR professionals are often blamed if they get it wrong, or take to long and you…

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Added by Phil O'Brien on October 16, 2017 at 7:30 — No Comments

Workplace Misconduct - Things to consider when terminating an employee

Recently an employee who was terminated for workplace misconduct as as result of drinking too much alcohol on Anzac Day and was awarded $8229.00 after the Fair Work Commission found that her dismissal was valid but none the less harsh under the circumstances.

Avril Chapman was employed by the Tassal Group. Her job  involved scaling, slicing, weighing and packing fish.  She had  been employed since 1 August 2012 and was terminated for workplace misconduct on 1 May 2017.

On 25…

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Added by Phil O'Brien on September 13, 2017 at 8:00 — No Comments

Top Ten tips for conducting internal workplace investigations

When faced with issues of workplace misconduct or complaints or grievances employers have a duty of care to respond in a manner that ensures a safe working environment. – Read more about the duty of care

Generally when you receive a complaint you have 3 choices;

1. Outsource to an external investigator (See what the FWC had to say about outsourcing investigations…

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Added by Phil O'Brien on July 26, 2017 at 8:00 — No Comments

Misconduct Investigation Allegation Letters

When AWPTI conducts an investigation we provide all the documentation including letters of allegation to our clients however I am often asked “Should we provide some sort of letter or email with the allegations?”

The answer is always YES.

Why: Recently I published an article about allegation letters, procedural fairness and why it is essential……

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Added by Phil O'Brien on July 25, 2017 at 12:00 — No Comments

Unfair dismissal, serious misconduct & workplace investigations

When considering dismissing an employee for serious misconduct, employers must bare in mind the following;

  1. Does the alleged behaviour that resulted in dismissal reach the threshold of serious misconduct
  2. Have you conducted an investigation – do you have the evidence to support the decision to terminate?
  3. Does the punishment fit the crime?

More details of another case there the issue of the punishment fitting the crime was considered by the FWC – …

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Added by Phil O'Brien on July 24, 2017 at 8:00 — No Comments

Summary dismissal – Do you have the grounds?

In light of the  XL Express Pty Ltd decision at the Fair Work Commission, I think it’s time to review Summary Dismissal. (More about XL Express here – http://awpti.com.au/unfair-dismissal-serious-misconduct-workplace-investigation/

Summary dismissal is dismissal without notice. It does not require advance notice to the…

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Added by Phil O'Brien on July 24, 2017 at 7:30 — No Comments

Workplace Investigators behaving badly

The presence of bias be it actual or perceived during an investigation can derail the entire investigation and undermine any findings and recommendations.

As I mentioned in the previous article, Workplace Investigation Biased process, complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews.

This…

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Added by Phil O'Brien on June 27, 2017 at 8:00 — No Comments

Workplace Investigation biased process

The presence of bias be it actual or perceived during an investigation can derail the investigation and undermine any findings and recommendations.

Complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews.

This article will examine the process, part two will examine bias during interviews.

Workplace investigations are defined as "an unbiased gathering of evidence" and to ensure that that a…

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Added by Phil O'Brien on June 26, 2017 at 9:55 — No Comments

Workplace investigation documents

It is important to understand that a workplace investigation may be scrutinised by a court in the case of a complainant suing in negligence for a breach of a duty of care in a bullying or sexual harassment matter. For example the case of Mathews v Winslow Constructors where an award of 1.3 million dollars was ordered or by the Fair Work Tribunal in the case of an unfair dismissal…

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Added by Phil O'Brien on June 26, 2017 at 9:30 — No Comments

Workplace Investigation Allegations and Procedural Fairness

During the course of an investigation there comes a point where you must ensure that the person subject of a complaint is afforded procedural fairness.

Failure to afford an employee Procedural Fairness can result in;

  • Successful unfair dismissal action by terminated employees at the Fair Work Commission
  • Orders for compensation against the employer
  • Orders for reinstatement of the terminated employee
  • Negative publicity and damage to brand…
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Added by Phil O'Brien on June 21, 2017 at 22:00 — No Comments

Sexual harassment investigation – Grabbing an Employee and Sexually Propositioning her was Valid Reason for Dismissal

The Fair Work Commission dismissed a former Calvary Hospital office worker’s application for an unfair dismissal remedy. Link to case

Andrew Powell commenced employment with Calvary Public Hospital in an administrative role in September 2014. On 26 May 2016, Mr Powell was suspended without pay pending an investigation into allegations of serious…

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Added by Phil O'Brien on May 19, 2017 at 7:30 — No Comments

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