Phil O'Brien's Blog (60)

Returning to the office and workplace complaints

As a workplace investigator I am seeing a upsurge in complaints of bullying and sexual harassment that could be attributed to  employees forgetting the rules and expectations of the workplace and not being used to a higher level of interpersonal contact.

“For the last two years the kids have been stuck inside, now they’re going back to the playground they seem to have forgotten how to play nice.”

It is also important to remember that employees who were hired during the…


Added by Phil O'Brien on May 6, 2022 at 8:00 — No Comments

Violence in the workplace – Best practice responses

Violence in the workplace – Best practice response.

At times violence in the workplace occurs and employers must respond in a professional and considered way that protects their employees and the best interest of the employees and the organisation and it’s culture.

An example that I have encountered as a workplace investigator involved two employees who had engaged in a fight in the workplace, a production facility.  The Police attended on the night and took statements, neither…


Added by Phil O'Brien on April 21, 2022 at 10:00 — No Comments

Can out-of-hours conduct at social gathering be a valid reason for dismissal?

An interesting case that raises some questions about the employers responsibilities when organising and running out of hours events,…

Added by Phil O'Brien on April 19, 2022 at 14:30 — No Comments

What are workplace interpersonal disputes

What is workplace interpersonal disputes – It is common for employees and managers to be faced with interpersonal disputes between employees that effect the workplace.

Interpersonal disputes can manifest as:

* Argumentative employees

* Misunderstandings

* General disagreements

* Bullying complaints where there is no witnesses or corroborating evidence making a finding difficult…


Added by Phil O'Brien on April 14, 2022 at 10:03 — No Comments

5 tips for effective investigation interviewing

A properly conducted interview is a primary method of obtaining evidence in a workplace investigation. A flawed interview can derail the entire investigation. Here are a few tips (there's a lot more, it's a complex task) that might help

(1) Always conduct a complete, careful & thorough analysis of the complaint/s to fully understand;

* What the complaint is about,

* Who are the parties

* What happened…


Added by Phil O'Brien on April 7, 2022 at 10:00 — No Comments

What constitutes sexual harassment?

Sexual Harassment Who decides – When a complaint of sexual harassment is made decisions have to to be made including;

  1. Is the behaviour being complained about sexual harassment?
  2. Is it a breach of company policy, Code of Conduct or the law?
  3. What to do next?

Sexual harassment is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. It can be physical, verbal or written.

When managing or…


Added by Phil O'Brien on April 5, 2022 at 8:00 — No Comments

Workplace complaints mediate or investigate?

When dealing with complaints such as bullying, harassment or sexual harassment in the workplace employers are often faced with difficult situations where the complaint is denied and there is little supporting evidence to assist in making a determination.

Often you have the statement/complaint from the complainant with their version of events and a completely opposite version from the respondent.

What do you do?…


Added by Phil O'Brien on April 4, 2022 at 11:14 — No Comments

Fair Work Commission thwarts ANU sacking of lecturer for skinny-dip kiss with student

Sexual harassment?

Breach of policy? or

Just poor judgement?

Fair Work Commission thwarts ANU sacking of lecturer for skinny-dip kiss with student

The Fair Work Commission has found that the ANU had unfairly dismissed a lecturer, saying that the interaction was consensual and…


Added by Phil O'Brien on April 1, 2022 at 8:00 — No Comments

Advice from the Fair Work Ombudsman - new sexual harassment protections

Some very useful and essential information for the Fair Work Ombudsman in relation to the new sexual harassment protections.

It is highly recommended that all employers are familiar with the changes that are aimed at making sure that workers are protected and empowered to address sexual harassment at work.

This CANNOT be ignored.

My advice to employers is make sure that you have all of the following;…


Added by Phil O'Brien on October 27, 2021 at 10:30 — No Comments

Unfair dismissal & the role of workplace investigations

What role does the investigator and the investigation play in ensuring that a dismissal is not unfair? It is important that employers and investigators get it right the first time every time.

When an employee submits an unfair dismissal application after being terminated from their employment, the Fair Work Commission looks at 3 criteria; was the dismissal Harsh, unjust and/or…


Added by Phil O'Brien on July 21, 2021 at 17:30 — No Comments

Sexual harassment prevention - A missed opportunity

I have to agree with the article

Especially in relation to recommendation 17;

Amend the Sex Discrimination Act to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

The government argued that such requirements are already implied…


Added by Phil O'Brien on July 13, 2021 at 14:30 — No Comments

Sexual harassment law changes on the way

Sexual Harassment law changes - Respect@Work 2020 report

HR Managers, employers & business owners - have you reviewed your sexual harassment policies & training in light of working from home & the 55 recommendations contained within the AHRC Respect@Work report relating to the National Sexual Harassment Survey.…


Added by Phil O'Brien on May 11, 2021 at 15:00 — No Comments

Reasonable management action or workplace bullying?

Following on from my last article - 'Why do managers get complaints?', do you know the difference between workplace bullying and reasonable management action.

This article goes into more detail about what the Fair Work Act says in s789FD(2) - ‘Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.’ and how I as an investigator address this question when conducting investigations against…


Added by Phil O'Brien on March 24, 2021 at 13:30 — No Comments

Why do managers get complaints?

Workplace complaints against managers – why do managers get complaints?

The easy answers are:

1. What they do!

2. What they don’t do!

What managers do

As a workplace investigator I have conducted a large number investigations into complaints about managers and what I have found is that many complaints come as a result of the manager:

* Managing and directing an employee

* Placing an employee on some form of performance improvement…


Added by Phil O'Brien on March 22, 2021 at 19:28 — No Comments

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…


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…


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…


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…


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…


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:

I particularly liked this comment:

“A workplace investigation should not be…


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

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