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…Continue
Added by Phil O'Brien on December 6, 2017 at 8:00 — No Comments
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,…Continue
Added by Phil O'Brien on November 28, 2017 at 8:17 — No Comments
Added by Phil O'Brien on October 16, 2017 at 17:00 — No Comments
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…Continue
Added by Phil O'Brien on October 16, 2017 at 7:30 — No Comments
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.
Added by Phil O'Brien on September 13, 2017 at 8:00 — No Comments
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…Continue
Added by Phil O'Brien on July 26, 2017 at 8:00 — No Comments
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……Continue
Added by Phil O'Brien on July 25, 2017 at 12:00 — No Comments
When considering dismissing an employee for serious misconduct, employers must bare in mind the following;
More details of another case there the issue of the punishment fitting the crime was considered by the FWC – …Continue
Added by Phil O'Brien on July 24, 2017 at 8:00 — No Comments
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…Continue
Added by Phil O'Brien on July 24, 2017 at 7:30 — No Comments
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.
Added by Phil O'Brien on June 27, 2017 at 8:00 — No Comments
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…Continue
Added by Phil O'Brien on June 26, 2017 at 9:55 — No Comments
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…Continue
Added by Phil O'Brien on June 26, 2017 at 9:30 — No Comments
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;
Added by Phil O'Brien on June 21, 2017 at 22:00 — No Comments
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…Continue
Added by Phil O'Brien on May 19, 2017 at 7:30 — No Comments
Instances of bullying in the workplace are an issue for many employers at some point especially if not managed correctly it can be very costly. However a lot of the advice and suggestions for dealing with bullying while well-meaning simply do not work.
Let’s have a look at some of the common…Continue
Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.
Employers should always think very carefully and thoroughly consider the options before making a decision to immediately or…Continue
Added by Phil O'Brien on May 10, 2017 at 8:00 — No Comments
It is not uncommon especially when the outcome is disputed, for an employee subject of a complaint or grievance to claim that the investigation was unfair or investigator was bias or perhaps a conflict of interest existed, especially if there is an adverse finding.
How do you counter an employee’s claim that you may be bias in the investigation if you have prior knowledge of the parties and there is no one else that…Continue
Added by Phil O'Brien on May 8, 2017 at 9:30 — No Comments
Firstly it is important to accept that you can’t stop it 100%, but what you can do is take all reasonable steps to reduce the risk of workplace bullying harassment and sexual harassment to your employees and your business.
Workplace bullying, harassment and sexual harassment is damaging to those who experience it, those who witness it and can be very damaging and costly to the organisation.
Stopping workplace bullying,…Continue
Added by Phil O'Brien on May 5, 2017 at 13:30 — No Comments
In spite of a number of matters in courts and tribunals sexual harassment in the workplace continues to be an issue.
As a workplace investigator and trainer I come across many opinions, beliefs and myths about what is and what is not sexual harassment and where is the line drawn?
Myth: I can’t report sexual harassment as no one will believe…Continue
Workplace Investigation Questions and the question of what and how to ask questions during an interview.
The interview is typically a means to gather evidence, to clarify point made in a complaint, to find out what people saw, heard or experienced and also an opportunity for the person subject who is the subject of the complaint to provide their side of the story.
There are two key elements to the actual interview that are of paramount importance - asking questions and…Continue
Added by Phil O'Brien on May 2, 2017 at 8:00 — No Comments