Vince Scopelliti's Blog (179)

Substantive, Not Superficial: A Call to Improved Procedural Fairness

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses,…

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Added by Vince Scopelliti on March 17, 2020 at 9:50 — No Comments

How Fact-Finding and Disciplinary Investigations Differ

When dealing with allegations of staff misconduct, employers must be able to clearly delineate between fact-finding and disciplinary investigations. 

This includes communicating the difference to staff involved in the process.

FACT-FINDING VS FORMAL INVESTIGATION

A 'fact-finding' process is often a necessary preliminary step in determining whether a…

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Added by Vince Scopelliti on February 25, 2020 at 15:30 — No Comments

Sacked on Leave: Procedural Fairness and Unfair Dismissal

The rules around when staff can be terminated while they are on leave can be a source of consternation for management and human resources professionals. 

The consequences of getting it wrong are demonstrated in the recent Fair Work Commission decision of Tuan Nguyen v Adelaide Fencing and Steel Supplies Pty Ltd [2020] FWC 79 (30 January…

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Added by Vince Scopelliti on February 20, 2020 at 8:55 — No Comments

How to Navigate Counter Allegations in Investigations

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of…

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Added by Vince Scopelliti on February 14, 2020 at 12:57 — No Comments

Racial Discrimination at Work

We are all familiar with the more obvious signs of workplace discrimination; but with targeted racism and xenophobia spreading faster than the Coronavirus, it is vital to be aware of the more nuanced and subtle acts of discrimination at work. 

Queensland has seen MP Duncan Pegg slam a phoney health department …

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Added by Vince Scopelliti on February 5, 2020 at 16:30 — No Comments

Unfair Dismissal: Case Studies from the FWC

Perhaps one of the most vexed issues employers face is how to terminate employees without exposing the organisation to the risk of a successful unfair dismissal action. 

In light of the 15 January updates to the Fair Work Commission (FWC) Unfair Dismissals Benchbook, these two unfair dismissal…

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Added by Vince Scopelliti on January 29, 2020 at 14:03 — No Comments

Whistleblowing in 2020: Is Your Organisation Ready?

The concept of whistleblowing was once frowned upon, or at the very least looked upon with trepidation. However, in recent years, the value of promoting whistleblowing as an acceptable way to improve corporate regulatory compliance and culture has been demonstrated. In this changing landscape,…

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Added by Vince Scopelliti on January 23, 2020 at 9:22 — No Comments

Managing Volunteers in the Workplace

Volunteers can be a fabulous resource in any business. Generally, they bring enthusiasm, true passion for the organisation's ethos and purpose, and a "can-do" attitude to the job.

However, volunteers in the workplace can also bring their own set of challenges for organisations. Even though they are not on the payroll, volunteers enjoy the same protections as paid workers are entitled to. Indeed, the Work Health…

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Added by Vince Scopelliti on January 16, 2020 at 12:20 — No Comments

Managing Misconduct over the Holidays

The festive season is fraught with concern for employers. With many staff on leave and those who remain letting their proverbial hair down (often with a beverage or three!) the holiday period can be a minefield.

We take a look at when employees are still considered to be "at work", define misconduct and provide some tips for dealing with poor behaviour in the workplace over the holidays. …

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Added by Vince Scopelliti on December 18, 2019 at 16:00 — No Comments

Managing Risks in Workplace Investigations

MANAGING RISKS IN WORKPLACE INVESTIGATIONS?

By its very nature, a workplace investigation involves sensitive and contentious information.

When a workplace investigation is required, whether this is outsourced to an external investigator or conducted in-house, it is necessary to be aware of the risks which could eventuate.

WHAT ARE THE KEY…

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Added by Vince Scopelliti on December 11, 2019 at 15:00 — No Comments

Rules of Evidence in Workplace Investigations

Although workplace investigations are not expected to be conducted in the same way as a police investigation, it is essential to keep in mind the principles of evidence which might apply. This is particularly important against a backdrop where many workplace investigations end up in the Fair Work Commission or otherwise in a contentious, litigated setting.

We examine the rules of evidence which should be followed to…

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Added by Vince Scopelliti on December 5, 2019 at 8:22 — No Comments

Responding to Bad Behaviour at the Christmas Party

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is…

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Added by Vince Scopelliti on November 27, 2019 at 11:55 — No Comments

Dealing with Pornography in the Workplace

Unsurprisingly, the access to pornography can be extremely problematic in the workplace. Not only does the access to pornography at work open up a minefield of possible harassment and other sexually motivated complaints, it contributes significantly to presenteeism (where staff are physically present but not concentrating on their jobs).

Indeed, according to a report in the Financial Times, 45% of daily viewers of popular pornography compilation site Pornhub,…

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Added by Vince Scopelliti on November 25, 2019 at 11:44 — No Comments

Audio Recording or Written Statements?

Appropriately recording evidence is a crucial part of workplace investigations.

For investigators, this can cause a significant dilemma as to whether it is preferable to rely on written statements, or obtain audio recordings of interviews conducted during the investigation.

Here are a few of the main considerations for each method.

AUDIO…

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Added by Vince Scopelliti on November 7, 2019 at 16:45 — No Comments

When a Pre-Determined View Leads to an Unfair Investigation

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural…

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Added by Vince Scopelliti on October 31, 2019 at 15:16 — No Comments

How to Prevent Sexual Harassment in the Workplace

Unfortunately, dealing with allegations of sexual harassment in the workplace is an issue for many employers. Sexual harassment can take many forms, and cases are rarely "open and shut".

Once allegations of sexual harassment or misconduct have been made, they must be appropriately investigated and dealt with. However, prevention is always better than cure.

Let's take a look at employer…

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Added by Vince Scopelliti on October 16, 2019 at 17:00 — No Comments

Supporting Mental Health in the Workplace

Employers understand that it is their responsibility to provide a safe workplace. Yet unlike physical health safety concerns and hazards such as lifting, tripping, sun exposure and dust reduction, many employers find themselves uncertain about how to support the mental health and wellbeing of their staff.

The first and most powerful antidote to this uncertainty is becoming informed. For business owners and managers,…

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Added by Vince Scopelliti on October 9, 2019 at 13:48 — No Comments

Outsourcing or In-House Investigations?

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations…

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Added by Vince Scopelliti on October 3, 2019 at 17:43 — No Comments

Police Involvement in Workplace Investigations

On occasion, police will become involved and/or need to be involved in the allegations from a workplace matter. In this situation, it's important for employers to know what their obligations are, and to be aware of some of the challenges that can arise. 

So, let's take a look at when police are or may need to be called in and what should happen once they are. 

WHAT MATTERS REQUIRE THE…

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Added by Vince Scopelliti on September 25, 2019 at 12:53 — No Comments

Elder Abuse in Care

The most vulnerable members of our society are generally those with disabilities, the very young and the elderly. People who are vulnerable are at greater risk of being abused or otherwise mistreated, especially in residential care facilities. This is currently being made distressingly clear at the aged care Royal Commission. 

We discuss what elder abuse in care looks like, how it can occur and what factors can make…

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Added by Vince Scopelliti on September 18, 2019 at 16:44 — No Comments

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