Phil O'Brien's Blog (46)

Workplace Investigations Secret Recordings

Workplace Investigations Secret Recordings - Can you record conversations without the knowledge or consent of one or more of the parties. Thanks to Navjot Singh from Pannu Lawyers for the…

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Added by Phil O'Brien on November 18, 2020 at 11:02 — No Comments

Workplace Sexual Harassment 2020

Workplace Sexual Harassment 2020 – Recently it was reported on the ABC that Workplace sexual harassment reports are rising during coronavirus and working from home may be a reason. 

The article stated, coronavirus, working from home and recent high-profile cases are encouraging more women to come forward and revealing the true extent of Australia’s sexual harassment problem, authorities have said that Law firms say they are being swamped with workplace sexual harassment…

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Added by Phil O'Brien on August 28, 2020 at 12:26 — No Comments

Serious Misconduct - Summary dismissal

Serious misconduct - In light of the Ivance Cuculoski v Australian Transit Group T/A Buswest [2020] FWC 3361 (30 June 2020) decision at the Fair Work Commission, I think it's time to review Serious Misconduct and Summary Dismissal. Full case here

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

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Added by Phil O'Brien on August 3, 2020 at 14:00 — No Comments

Workplace investigations & Workplace policies

One of the first questions I ask for when I am engaged to conduct a workplace investigation is can you send me your bullying or behavioural polices and and any Code of Conduct or other policies.



The reason I ask for this is that I frame any allegations against the person subject of any complaint based on potential breaches of your policies or Code of Conduct.



The policies I receive come a a variety of forms, but one of the elements I like…

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Added by Phil O'Brien on July 31, 2020 at 11:30 — No Comments

Dealing with reluctant complainants in workplace investigations

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 professionals 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…

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Added by Phil O'Brien on July 7, 2020 at 17:00 — No Comments

Sexual Harassment Investigations

Recently a very good article was published about Sexual Harassment in the workplace on the Monash University Impact web site: https://www2.monash.edu/impact/articles/legal/workplace-sexual-harassment-how-do-we-help-women-come-forward/

I particularly liked this comment:

“A workplace investigation should not be…

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Added by Phil O'Brien on July 6, 2020 at 13:00 — No Comments

Top 10 reasons why your organisation should have training in bullying harassment sexual harassment

Top 10 reasons why your organisation should have training in bullying harassment sexual harassment

Training your employees of all levels in bullying, harassment and sexual harassment shouldn’t be a “nice to have”, “we’ll get around to it” or “maybe one day”, it’s an imperative, today.  Not convinced here are the top ten reasons why your organisation should have training in bullying, harassment and…

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Added by Phil O'Brien on June 26, 2020 at 14:23 — No Comments

Sexual Harassment Investigation Myth Busting

I have investigated a large number of sexual harassment complaints this article busting the myths contains most of the excuses for the behaviour that I have heard when interviewing perpetrators.



I believe that when it comes to sexual harassment the behaviour is;



Deliberate – Where the perpetrator knowingly behaves in a sexually harassing manner towards the victim.



Offensive – Where the person subjected to the…

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Added by Phil O'Brien on June 25, 2020 at 7:30 — No Comments

Working from home bullying part 2 - social media

The Rolling Stones told us that Time is on my side, yes it is”  and with people working from home they may be right. 

People with more time on their hands combined with the social isolation that comes from working from home or being in lockdown can find themselves becoming frustrated which in turn can lead to people saying and doing things on social media that they might regret…

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Added by Phil O'Brien on March 24, 2020 at 11:30 — No Comments

Working from home workplace bullying

Working from home workplace bullying – I have conducted numerous investigations where emails have been the source of the issues that are claimed as being workplace bullying.

With more and more people working from home as a result of COVID 19, businesses, employers and managers are going to be more dependent on the use of email to communicate. It is important to remember that an email cannot express the sentiment behind it and can be easily misinterpreted.

The investigations I…

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Added by Phil O'Brien on March 23, 2020 at 10:30 — No Comments

Investigating Complaints Part 3 – Conducting a Risk Assessment

Investigating Complaints Part 3 – Conducting a Risk Assessment

This part 3 of a series is a step by step guide to help you investigate employee complaints.  The guides can also be used to investigate complaints from stakeholders including clients and customers.

This process is by no means the only process, it is however the process I use and have been using successfully for a number of years.

The next stage in the investigation process is to conduct a Risk…

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Added by Phil O'Brien on February 20, 2020 at 9:46 — No Comments

Investigating Complaints Part 2 – Developing the Investigation Plan.

This part 2 of a series is a step by step guide to help you investigate employee complaints.  The guides can also be used to investigate complaints from stakeholders including clients and customers.

This process is by no means the only process, it is however the process I use and have been using successfully for a number of years.

Once you have completed your analysis of the complaint the next stage of the investigation is to develop your Investigation Plan.

The…

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Added by Phil O'Brien on February 19, 2020 at 12:49 — No Comments

Summary dismissal, Serious Misconduct & Workplace Investigations

A case at the Fair Work Commission (Trialonas v Steric Solutions Pty Ltd) highlighted the need for employers to understand what Summary Dismissal is, how it applies to Serious Misconduct and the importance of thorough professional workplace investigations.

In this case a worker was summarily dismissed for using abusive language towards his supervisor but then allowed back to work…

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Added by Phil O'Brien on January 31, 2020 at 16:30 — No Comments

Investigating Complaints Part 1 – Analysing the complaint.

Investigating Complaints Part 1 – Analysing the complaint.

This series is a step by step guide to help you investigate employee complaints.  The guides can also be used to investigate complaints from stakeholders including clients and customers.

This process is by no means the only process, it is however the process I use and have been using successfully for a number of years.

The first step in the investigation process is…

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Added by Phil O'Brien on January 31, 2020 at 12:30 — No Comments

Complaint Management  & complainant expectations

Complaint Management  - Dealing with complainants and their expectations. As an business owner, employer or manager you may have to deal with complaints from stakeholders including clients, customers, suppliers or employees.  Complaints could relate to a number of issues however from experience we have found common complaints include;

  • The behaviour of your staff towards stakeholders/clients/other employees
  • The way in which your organisation or facility is being…
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Added by Phil O'Brien on January 28, 2020 at 11:22 — No Comments

Workplace Investigations Managing Expectations

At times during a workplace investigation it may be necessary to manage the expectations of managers especially senior managers. As an investigator you must take control and responsibility for the investigation.

In my experience management expectations/interference/demands comes in three forms;

  1. Expectations around the process – how the investigation is conducted.
  2. Expectations about the outcome – What they want.
  3. Expectations around the timelines – How…
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Added by Phil O'Brien on January 14, 2020 at 10:39 — No Comments

Dealing with uncooperative complainants in workplace investigations

Workplace Investigations Uncooperative Complainants – at times during a workplace investigation you may have to deal with an uncooperative complainant, what should you do?

In my experience uncooperative complainants fall into 3 categories; (there may be more, but this is what I have encountered.)

  1. Complainants who are concerned and even fearful of the process and their part in the investigation.
  2. Complainants who know that their complaint is baseless and want…
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Added by Phil O'Brien on January 10, 2020 at 9:30 — No Comments

Dealing with Difficult Respondents in Workplace Investigations

Workplace Investigations Difficult Respondents – What can or should you do? – Remain calm and professional,  do not engage in arguments and stick to your interview plan/process.

At times during a workplace investigation, you may have to deal with difficult respondents. This can occur in a number of ways:

  1. The respondent refuses/declines to attend an interview to discuss complaints/allegations made against them.
  2. The respondent refuses/declines to answer questions…
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Added by Phil O'Brien on December 6, 2019 at 10:00 — No Comments

Workplace Investigation Questions

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 points made in a complaint, to find out what people saw, heard or experienced and also an opportunity for the person 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 listening to…

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Added by Phil O'Brien on December 5, 2019 at 15:02 — No Comments

Complaint Ownership in Workplace Investigations

Workplace Investigations Complaint Ownership

Workplace Investigations Complaint Ownership – What if the employee does not want an investigation into their complaint?

In some circumstances, an employee may raise a workplace issue with their employer or make an “informal” complaint but does not wish for any formal action to be taken. What are the options for the employer, Manager or HR professional?

While it is…

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Added by Phil O'Brien on December 5, 2019 at 14:00 — No Comments

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