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The Latest from the Blog

What is Workplace Bullying

Harriet Stacey - Tuesday, April 22, 2014

Workplace bullying has been identified as a serious problem in a large number of Australian organisations. According to a recent report produced by government organisation Safe Work Australia, workplace bullying affects between 3.5% and 21% of the Australian workforce and costs businesses and organisations around $6 billion a year.

Although “bullying” is a commonly used term, it is often misunderstood when used in the context of the workplace. Here is a brief overview of workplace bullying, what it means and the impact it can have on individuals and organisations in Australia.

What behaviour is classified as bullying?

Workplace bullying is broadly defined as repeated behaviour towards an employee or a group of employees which is unreasonable and creates a risk to their health and safety. Although the traditional view of workplace bullying is that of a manager harassing a subordinate, bullying can take place between co-workers of equal seniority or can be undertaken from a lower ranking employee towards a more senior employee.

Workplace bullying doesn’t include reasonable management direction and disciplinary action which is in line with reasonable company policies. Other types of workplace harassment including discrimination, sexual harassment and workplace conflict are not usually included in the definition of workplace bullying and can be dealt with separately or alongside bullying allegations.

What are the consequences of workplace bullying?

Workplace bullying can have severe consequences both for the individual/s involved and for the organisation as a whole. Some of the consequences for victims of work place bullying include: • Stress • Mental health issues including anxiety or depression • Loss of motivation • Effects on other areas of life including relationships, family and study • Physical health problems including headaches and back and neck problems • Sleeplessness • Loss of confidence • Isolation

As well as directly affecting the victim, workplace bullying also has consequences for organisations including: • Increased absenteeism • Reduced productivity • Higher staff turnover • Increased recruitment and training costs • Low staff morale It’s in everyone’s best interests for employers to take a proactive approach to preventing workplace bullying. As well as developing anti-bullying policies and staff training, make sure that as an employer you respond quickly to any allegations of bullying among your employees.

In recognition of the widespread issues caused by workplace bullying, the Fair Work Commission has recently brought new legislation into effect which makes workplace bullying unlawful. From January 1, 2014, workers who feel they are being bullied can lodge a complaint directly with the Fair Work Commission who can make whatever order it feels necessary to provide redress.

Matters concerning workplace bullying allegations can often be dealt with internally but if the allegations are severe or involve senior management it may be necessary to involve an external investigator. Our workplace investigators are highly experienced in cases of alleged workplace bullying and can help ensure a fair outcome and a quick resolution. Contact us today to find out more about what we can do to help you.

Reinstatement Appeal Awarded in Favour of Teacher

Harriet Stacey - Tuesday, April 15, 2014
                     

Last week the Fair Work Commission ruled in favour of a teacher who appealed against unfair dismissal after 37 years of service. The appeal was granted in spite of recognition that there was a valid reason for him not to be reinstated. In the ruling the Fair Work Commission stated that the employer had acted unfairly during the process and had not adequately investigated reinstatement options for the teacher. The teacher was employed by the Catholic Education Diocese of Parramatta and had been an employee there for 37 years. He was dismissed at the end of 2012 after refusing to follow a direction not to have contact with students out of school hours (for non-school related activities). Although the request not to have contact with students was found to be reasonable, the way the matter was handled and the teacher’s subsequent dismissal were considered unfair by the Fair Work Commission. This result highlights the need for employers to thoroughly consider reinstatement options for employees and to ensure that employees are fully informed if there is a possibility that they will be dismissed.
Employees should be advised if dismissal is a possibility
The teacher was dismissed at the end of last year after a disciplinary interview. During the process, and especially during the interview he wasn’t made aware of the possibility that he would be dismissed. The Fair Work Commission found that he wasn’t advised that the issues being discussed were significant enough to lead to a dismissal or that the diocese was considering dismissing him. This meant that he was not given an opportunity to address the allegations against him and put forward his case against being dismissed. Investigations also showed that the decision to dismiss the teacher was made for a number of reasons which weren’t discussed during the disciplinary interview. These included unsubstantiated rumours of sexual misconduct. During that time a number of teachers were under investigation for alleged sexual abuse of children and this was believed to be an influencing factor in the decision to dismiss the teacher. These reasons weren’t discussed with him prior to his dismissal and he wasn’t provided with the opportunity to respond to them. Although the teacher was advised that he would have the opportunity to put forward his case to the diocese’s executi ve director, he was never given that chance and was dismissed a couple of weeks later.
Unfair procedure
The Fair Work commission ruled that although the procedure for dismissing the teacher was unfair, the ruling for him to avoid out of school contact with students was reasonable. At the time, the school was under scrutiny for alleged sexual misconduct, and the request for teachers to avoid unsupervised contact with children was reasonable to protect the reputation of the school and the teachers and prevent further allegations being made against them. The Fair Work Commission also agreed that it was reasonable for the principal to refuse to reinstate the teacher to a teaching position, but that other options hadn’t been fully evaluated. The teacher had requested a non-contact position which didn’t involve spending time with students and this wasn’t given due consideration. The teacher had been with the school for 37 years and the fact that his long service hadn’t been taken into consideration formed a significant part of the appeal. This case highlights the need for employers to consider all reinstatement options for employees and ensure that any dismissal is conducted in a fair and reasonable manner.

What are the Steps Involved in An External Investigation

Harriet Stacey - Thursday, April 10, 2014

 

Workplace misconduct, bullying and harassment are surprisingly common among Australian organisations. Although many problems can be managed and resolved through in house human resources and management, sometimes hiring an external investigator is the best option.

A good workplace investigation follows a series of steps to ensure a fair outcome for everyone and an unbiased investigation. Although every investigation is slightly different here is a brief outline of the steps that are usually involved in the investigation process:

1. Define the scope and Terms of Reference
Before engaging an external investigator or with the assistance of the investigator, clients must determine what is wrong with the behaviour that has been reported – define the scope of the investigation and prepare initial allegations or issues to be investigated. Clearly articulating the scope and allegations made in writing to the investigator is a high determinant of success for the investigation and welfare of staff involved.
2. Appoint an external investigator
It’s important to take time to find the right external investigator. A poorly undertaken investigation could be a waste of time and money and could leave you liable for additional costs in the long term, especially if a dissatisfied employee decides to take further action against the outcome or the way the investigation was conducted. Make sure you find a professional investigator with a Private Investigator licence. The licencing process ensures minimum qualifications/experience, and a code of practice. After establishing the correct licence find an investigator with a good track record, solid experience and understanding of the law, particularly in the specific area you are investigating.
3. Analyse the information that’s available
The first step an external investigator should take is to thoroughly examine the information that’s available. In cases of harassment this means looking at all the records and any evidence on either side and gaining a general understanding of the circumstances, workplace policies and any issues that could have led up to the alleged bullying or misconduct. Once the investigator has an understanding of the situation he or she can make an informed decision as to how to proceed.
4. Interviewing the complainant and witnesses
After the investigator has discussed the situation in depth with the client, the next step is to interview the complainant, any witnesses to gather further information. Interviews should be conducted in a private location, recorded and allowing the interviewees to have a support person present if they wish. Copies of records must be provided to individuals to check and sign. In many investigations the initial interviews may reveal new or different information or additional leads. If this is the case, follow up interviews may be required to verify or further investigate new allegations or information.
5. Examination of records
The investigator should be given access to all relevant documents, emails and available digital data to corroborate statements made by witnesses. To ensure impartiality, the examination of disciplinary records should only be undertaken if relevant to the facts at issue. The final decision maker can use prior disciplinary records to determine an appropriate penalty but this should not be considered at the investigation stage.
6. Putting the allegations to the respondent
Only when all the evidence has been gathered is it appropriate to speak to the respondent. Speaking to the respondent last ensures that all relevant allegations and evidence can be put to the respondent for a full and fair response. It is a requirement to meet the obligations under procedural fairness to provide the respondent the opportunity to respond to all allegations this should be done in an environment that is supportive. Audio record this interview wherever possible and make sure the respondent gets a copy to sign. Respondents should always be given the opportunity to have a support person present to give support but not advocate on their behalf. It is fair to provide an opportunity for a written response to be provided also.
7. Analysis and report
Once all the information has been obtained, the investigator will analyse the information and produce a report detailing their findings. The report should detail the investigator’s findings, whether the allegations of misconduct or bullying can be upheld and show how they reached their conclusion. They may also make recommendations for further action by management.
8. Notify parties involved
The complainant and the respondent should be notified of the outcome of the investigation and what further steps are required on both sides. It’s important that any workplace investigation follows a logical process and that findings are carefully detailed to avoid further legal action and ensure a fair outcome. A well-managed investigation can help resolve the situation and lets everyone move on as quickly as possible. Contact us today if you have any questions about the investigation process or to find an experienced, professional external investigator.

Harriet Stacey 28 Jan 2014

Following the recent anti-bullying amendment to the Fair Work Act, WISE CEO Harriet Stacey talks about the importance for employers to be proactive and effective in how they deal with workplace bullying.