Confidentiality Should Be No Surprise

- Tuesday, September 16, 2014

Confidentiality Should Be No Surprise

In a recent case involving a union delegate acting as a support person and a breach of confidentiality, the Fair Work Commission noted that those acting as support people during workplace disciplinary processes must be clearly informed by the employer about their obligation to maintain confidentiality. This might seem to some to be a fairly common-sense proposition, hardly requiring particular clarification on the part of the employer. That is, if asked to support a colleague during a disciplinary interview, it should be quite obvious that the sensitive subject matter indicates a need for utmost confidentiality. And, if following a disciplinary meeting, the worker’s support person then provides that confidential material to others, it would perhaps be no surprise if the employer took action against the support person.

Making it clear

Yet, in CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (MSS), a support person named Leighton did in fact express such surprise about the confidentiality requirements arising from his involvement in a colleague’s disciplinary interview. Leighton was asked by his co-worker Arnold to attend the interview as Arnold’s support person. After attending the meeting in this capacity, Leighton then proceeded to distribute to colleagues via email certain written information provided in confidence during the disciplinary process. The core issue in the case was actually whether the employer’s decision to issue Leighton with a final written warning was unnecessarily harsh in the circumstances. Before traversing that issue, Commissioner David Gregory was very clear in noting the basic remit of any support person’s obligations in the context of a workplace investigation:

Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times. [at 49]
Clarity of roles

Commissioner Gregory noted that Leighton’s particular role in the workplace required some consideration. He was a union delegate of the CFMEU at the MSS worksite, as well as being actively involved in other union activities across Victoria. The Commissioner stated that this position in the workplace could be seen in two lights. As a delegate, he should have been aware of the requirements flowing from workplace investigations. Yet considering his natural tendency to want to actively assist all workers at the site, his dissemination of this particular information arising from Arnold’s meeting was perhaps understandable.

A duty to inform

Other elements of Leighton’s behaviour and work history were noted, including a formerly unblemished employment record and his apology for the unintended breach. He maintained throughout that he simply did not understand the need for confidentiality in the disciplinary context. On this point, the Commissioner noted that employers are obliged to inform workers clearly and unequivocally of the need to maintain confidentiality about any information that arises in their capacity as a workplace support person. This should occur at a number of junctures during employment, including at the commencement of any workplace investigation in which they are involved. The FWC ordered a lessening of Leighton’s sanction, from final written warning to a written warning.

Support with information

As can be seen from this case, even for those regularly involved in workplace investigations, employers must take care to clearly and unambiguously set out the requirement of confidentiality. It can never be assumed that a person would ‘naturally’ be aware of their obligations in this context. It is common for union delegates to be involved in workplace investigations as support people. Such workers should be reminded that once in the role of support person, they are in attendance purely to support their colleague and to ensure a fair process. Clarify that any impulse to disseminate meeting outcomes for the perceived good of all colleagues, for example, must be resisted. Setting out possible actions to be taken in the case of a breach of confidentiality would also go some way to assisting support people to exercise the discretion required in workplace disciplinary investigations.

Keeping confidence

For employers or HR departments working through a workplace investigation, or simply wanting to enhance employee knowledge of confidentiality requirements, it is essential that the information provided is clear and accurate. To avoid any ‘surprises’ about the need to maintain confidence in investigative processes, get in touch to see how we can assist with your specific requirements. WISE Workplace provides a number of one-day investigation programs. To find out more information about programs tailored to your workplace, contact Harriet Stacey on 1300 580 685.

How to Plan a Workplace Investigation and Why it’s Important

- Tuesday, August 19, 2014

How to Plan a Workplace Investigation and Why it’s Important

If you are conducting either internal or external workplace investigations, it is crucial that you formulate a unique plan of action for each investigative process. No two workplace issues are the same, and a well-structured investigation plan will ensure that you account for the many variables that can arise. Almost certainly, you will be dealing with complex fact scenarios and high emotions within the workplace. Without a well-planned workplace investigation process, such factors can lead to distractions and pitfalls that have the potential to take the investigation off-track. The key factors to build into your investigation plan include:

    • Maintaining procedural fairness during the workplace investigation
    • Planning how to elicit the best evidence
    • Ensuring full coverage of pertinent issues
A good workplace investigation plan guides the process - yet retains sufficient flexibility to accommodate unforeseen developments.
Maintaining procedural fairness e

Legally, procedural fairness is not as simple as ‘being fair’ in our dealings. The very structure of a procedure such as a workplace investigation must also appear fair to an objective bystander. For example, a well-meaning internal investigator might dissuade a worker from bringing a support person because ‘this is just a friendly chat’ about alleged misconduct. It might well transpire that any evidence gathered in this process is tainted by a lack of procedural fairness. A cogent plan for how and when staff and management will be engaged is crucial. If the size or nature of the organisation is such that such fairness cannot be guaranteed, engagement of an external investigator might well be the prudent option. For external investigators, assessing any potential power dynamics, access issues or managerial support for the investigation can all enable the investigator to create a robust and procedurally fair workplace investigation plan, suitable for individual workplaces.

Plan for the best evidence

In workplace investigations, it pays to keep in mind that the best reports and recommendations are built upon sound evidence. The Briginshaw principle reminds us that although there is only one civil standard of proof – the balance of probabilities – the seriousness of the allegations and possible consequences in a particular matter will affect whether available evidence is sufficiently probative to meet that standard. In the heat of the moment in a workplace investigation, it can certainly be difficult to remember your rules of evidence, with a view to possible future actions! Unfortunately with workplace disputes often creating a veritable minefield of evidentiary blunders such as hearsay (‘I heard from Henry that Sheila saw Jane take the printer’), it is best to plan for the location and elicitation of the most probative available evidence in the circumstances. In your investigation plan it helps to go over any written brief or preliminary notes you might have on the physical and social characteristics of the workplace, in order to timetable your evidence-gathering strategy. Are original documents onsite, are private interview rooms available, are any key staff members on leave, do managers encourage support people for interviewees? With a little forward planning, the workplace investigation can extract strong and compelling evidence.

Ensure full coverage of pertinent issues

A workplace investigation should proceed with clear and detailed terms of reference (TOR). The investigator must be clearly informed as to the scope and scale of the investigation, in order to be able to create an investigation plan that most closely meets these parameters. Within that plan, it will be necessary to identify the relevant aspects of employment law or related legislation, in order to gauge the most pressing issues to investigate relevant to the TOR. For example, recent case law regarding exclusionary provisions within anti-discrimination legislation might affect the types of relevant issues to best explore in a given workplace. As well as planning for legal and factual issue coverage, a sound investigation plan will ensure that the workplace investigation does not head off on a tangent. It can take strong professional aptitude to compassionately hear a story, while also limiting interviews to the pertinent issues.

In order to be fair, to collect good evidence, and to cover all of the pertinent issues, a detailed workplace investigation plan is a must-have for all workplace investigators.

How to Work Effectively With External Investigators

- Tuesday, July 08, 2014

How to Work Effectively With External Investigators

If you are dealing with an employee dispute, suspected misconduct or allegations of harassment and bullying in many cases it may be necessary to hire an external investigator. Utilising the services of an unbiased third party means that you can be sure your investigation will be free from personal conflict and the person in charge of the investigation will be truly impartial.

Employee or management conflicts can be devastating to any organisation and they can end up costing a lot of money in absenteeism and lost productivity as well as creating a stressful environment for co-workers. Many employee disputes and allegations of misconduct come with legal implications so it’s important that any investigations are conducted ethically and lawfully by a skilled professional. If not handled properly, any resolution could be overturned or lead to a lengthy and costly legal battle.

It is in everybody’s best interests to get the best possible outcome when working with an external investigator and there are a few things you can do to help ensure a quick and accurate resolution of the situation. Here are some tips for working effectively with external investigators, for management and employees.

Before the investigation starts

It’s important that everyone is clear about the scope of the investigation, the terms and whether or not there are any conflicts of interest or other issues which could affect the investigator’s ability to carry out their job in an unbiased manner. Make sure it is clear what assistance and support will be required from the agency or organisation including access to administrative records, availability of employees for interview and any other requirements.

Knowing what to expect on both sides will help alleviate stress and misunderstanding and make the process go a lot more smoothly. Although not everything can be predicted, the investigator will probably have some idea how they plan to go about the investigation and it is important that this is communicated to the organisation so that management and the employees involved understand what is likely to happen.

Once the investigation is underway

Good communication is essential at all stages of an investigation and a set of deliverables should be agreed on by both sides so that expectations are clear. It’s a good idea for the investigator and a representative of the agency they are investigating to touch base regularly to ensure any issues are dealt with and the investigation is proceeding as required.

Make sure that the investigator you use provides a full written report of their findings including all the evidence, how it was obtained and the reasoning process involved in reaching their final conclusion. This is an essential part of the process and can protect you in the future if there is a dispute over the final outcome by giving you a written record of exactly what was decided and what evidence was used.

Generally an investigator doesn’t make the final decision but they may make recommendations. Make sure that the person who is in charge of making a final decision, particularly if it involves termination of employment, is aware of the legal and procedural implications involved so as to reduce the chance of further legal action or a decision being overturned.

The more you co-operate and support an external investigator the more likely it is that you will have a quick resolution and be able to put the matter behind you and move on. At Wise Workplace we have experience working with a number of different agencies and investigating a wide range of complaints. Talk to us to find out how we can help you.

Bullying Claim Ended After Employee Dismissal

- Tuesday, June 24, 2014

Bullying Claim Ended After Employee Dismissal

A recent attempt by a former employee to take action against ANZ bank for bullying has been dismissed due to the fact that the employee is no longer working for the bank. According to the deputy president of the Fair Work Commission, the employee had no reasonable prospects of success so continuation of the case was considered unnecessary.

This dismissal was based on the fact that for a bullying claim to be dealt with in court there needs to be a risk that the employee would continue to be bullied at work in the future. As this particular employee was no longer working for the employer, the risk of future bullying had been removed and therefore there were no grounds for further action on the part of the Fair Work Commission.
Reasons for dismissal not relevant to bullying claims

The employee involved has opposed the move, stating that his dismissal from the organisation which took place while he was on paid parental leave, was invalid. He also claimed that he had been the subject of adverse action on the part of ANZ for making an anti-bullying application. In addition to this, there were a number of arguments made by the employee in support of his claims of an invalid dismissal and unfair treatment.

As the employee didn’t claim any breach of contract on the part of ANZ or refuse to accept the dismissal, the matter was considered not to have any bearing on the original bullying claims. According to the ruling, the employment contract was terminated, the employee accepted this termination and therefore bullying was not likely to be a problem in the future.

The matter being decided by the bullying case was considered to be unrelated to whether or not the dismissal was lawful or fair and this was treated as a matter to be dealt with separately at some point in the future. If, after the matter of the dismissal has been dealt with and the employee is reinstated, he will have the option of bringing a fresh anti-bullying claim to court.

No reasonable chance of success

When making the ruling, the deputy president stated that there was no reasonable prospect of success to the employee from continuing the claim. There is a provision in the Fair Work Act that action can be ceased if there is no chance that it will be successful. The deputy president noted that although at the beginning, when the application was made, there was a chance of success, the circumstances had changed and there was no longer any reasonable prospect of success.

In this case, success was taken to mean an order to stop bullying being issued against ANZ bank. As the employee was no longer working there, an order wouldn’t be able to be issued and therefore, even if the employee had a valid claim, there was no reasonable prospect of success.

Lawyer Loses Bullying and Sexual Harassment Case

- Tuesday, June 17, 2014

Lawyer Loses Bullying and Sexual Harassment Case

A recent ruling by the Federal Circuit Court found that a law firm hadn’t taken adverse action against one of its solicitors after she complained of bullying and sexual harassment in December 2011.

Emails sent from the solicitor to the firm where she stated that she wanted to consider how to part ways amicably and that the employment relationship had irretrievably broken down were determined to be acceptable as an official resignation. The solicitor had sent two emails on December 13th and had received a confirmation email back stating that her resignation had been accepted and inviting her to make a proposal for a settlement. She didn’t respond and later denied having resigned.

The solicitor had previously made claims of bullying and sexual harassment and the law firm had engaged an independent investigator to evaluate the claims. They had also offered the solicitor leave while the claims were being investigated. She sent the resignation emails on the morning that she was due to be interviewed by the investigator, stating that her leaving would save embarrassment to the firm and prevent sensitive matters from becoming public knowledge.

Allegations of bullying not upheld

The judge ruled against the solicitor in her allegations of bullying. There were eight separate incidents of alleged bullying and harassment by a legal secretary towards the solicitor. Some of the behaviour included the secretary rolling her eyes, huffing, and reprimanding the solicitor for not using the right coloured folders. This behaviour was not sufficient to amount to harassment according to the judge. The judge also noted the potential power imbalance between the solicitor and the secretary which favoured the solicitor as she had a more senior role in the firm.

Sexual harassment claims rejected

In addition to the bullying allegations, the solicitor made claims of sexual harassment against two lawyers in the firm. These claims included claims of passing physical contact and comments by one of the partners about trading in his wife for a younger model which were made in the presence of his wife. These allegations were also rejected by the judge who noted that although the comment may not have been funny to everyone, it didn’t qualify as sexual harassment when made to the solicitor.

Workplace policies found not to be part of contract

The solicitor also claimed that the law firm had breached her contract of employment and argued that the law firm’s workplace harassment prevention policy was expressly incorporated into her contract. This was ruled not to be the case as that particular policy was not expressly identified in the contract and there was no evidence that it had been provided to her when she signed the contract.

The law firm admitted that there was a clause in the contract implying that they would deal with her in good faith and the judge ruled that they had as bullying and harassment had not taken place, the solicitor had been given the opportunity to take time off, and an investigation had been organised into her claims.

Small Businesses Not Immune to Large Payouts

- Tuesday, June 03, 2014

Small Businesses Not Immune to Large Payouts

A family-run photography business has been ordered to pay a former employee more than $235,000 in compensation and penalties in a constructive dismissal ruling by the Federal Circuit Court of Australia. The ruling, made on April 30 in Melbourne, imposed penalties on the former employers for discrimination and breaching the Fair Work Act, after they allegedly told a pregnant employee that she couldn’t work with clients because it was “not a good look.”

Unreasonable Demands

The employers were ordered to pay compensation of $174,097 plus additional penalties by Federal Circuit Judge Dominica Whelan, who described their conduct as serious. As well as repeatedly discriminating against the employee on the basis of her pregnancy, and refusing to consider letting her return in a part-time capacity after the birth of her child, they insisted that she work “all hours necessary” to assist the business. She was ordered to take long service leave before her child’s birth because her employers stated that customers wouldn’t want to see a pregnant woman working, and it would make them (the employers) look like “slave drivers”.

In addition to the unreasonable demands on her working hours, after learning of her pregnancy, the employers demanded that she agree to a new contract of employment linking her wages to unrealistic, never previously achieved sales targets. The photographer had worked for the business for 12 years, and during this time it had never been suggested that her wages should be linked to sales figures. The figures had never been reached in the history of the time she had worked there, and she believed that the expectation was unreasonable.

Verbal Abuse

The behaviour of the employers towards the employee was aggressive, and included verbally abusive language on a number of occasions. This increased when she refused to work additional hours and complained of discrimination. The arguments put forth by the employer stated that if they had constructively dismissed the employee, it was due to a combination of performance issues and the financial state of the business, and unrelated to her pregnancy. However, Judge Whelan was satisfied that the employee’s pregnancy was the sole cause, and not the reasons suggested by the employers.

A Warning for Small Business from the Bench

Although in this case the employee was able to seek legal redress against her former employer, the judge raised concerns about the rights of employees in small businesses as a whole. Although this employee had been able to pursue her case due to her education and the fact her husband had legal expertise, evidence was heard that another employee in the same business had been afraid to inform the business owners of her pregnancy when she resigned and felt unable to seek similar legal protections.

Part of the reason for awarding the large payout, as explained by the judge, was to act as a deterrent against other small businesses making unreasonable demands on their employees and discriminating against pregnant workers. Judge Whelan stated that society has to take a stand to protect the capacity for women to continue in employment during their pregnancy and to be able to continue their career after having a child.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

No harassment no unfair dismissal - ruling clears Energy Australia

- Tuesday, April 01, 2014

On March 25th, an application against Energy Australia made by a former director of corporate affairs was dismissed at the Federal Court by Justice Julie Ann Dodds-Streeton. Former Energy Australia employee Kate Shea claimed that she had been made redundant in 2012 as retribution for sexual harassment complaints made previously and this was found not to have been the case.

Justice Dodds-Streeton stated that Energy Australia had sound business reasons for making the redundancy and Ms Shea’s claims had no reasonable basis and were made for personal gain rather than in good faith.

The allegations

The claims that were previously made against Energy Australia included allegations that managing director Richard McIndoe was previously involved in sexual harassment against a female employee at a party in 2006. Ms Shea also claimed that she had been the victim of sexual harassment in 2010 by then chief financial officer Kevin Holmes and that Energy Australia had a corporate culture in which sexual harassment was condoned.

An investigation was undertaken relating to Ms Shea’s complaints in 2011 and the results found that although Mr Holmes had made contact with her he had not sexually harassed her. After the investigation, Ms Shea sent a letter to Mr McIndoe accusing him, along with the CFO and the company’s HR director of concealing evidence and working to cover up a culture of sexual harassment within the organisation.

The letter is said to have contained a number of demands including one for a financial settlement, and threats that if the demands weren’t met in a specific time frame the letter would be sent to Energy Australia’s parent company in Hong Kong, CLP Holdings Limited. Ms Shea received a sum of $133,000 and returned to work in October 2011. She and her personal assistant were made redundant four months later after a company restructure.

The outcome

Justice Dodds-Streeton noted that Section 341 of the Fair Work Act 2009 has not yet been thoroughly tested from a judicial standpoint, and that there are still a number of significant aspects which are left unaddressed. Although there is no requirement for complaints made against a company to be justified or for an accusation to be true or proven, there is still a requirement for claims to be reasonable and genuinely held by the complainant. According to Justice Dodds-Streeton, the claims made by Ms Shea weren’t made in good faith but purely from the motivation of financial gain. The judge stated that she wasn’t convinced that Ms Shea had any real belief that her former colleagues’ conduct amounted to sexual harassment and this was apparent in her conduct as a witness.

The judge also determined that complaints made against an organisation need to be underpinned by a right or an entitlement. In Ms Shea’s case, there wasn’t enough of a connection between the alleged misconduct of Mr McIndoe against another female employee and the employment of Ms Shea.

Ms Shea had been seeking reinstatement and lost earnings which would have amounted to around $6M. The judge ruled out reinstatement, due to the fact that the trust required for an employee/employer relationship was gone. Energy Australia and the employees involved were cleared of any allegations of harassment and misconduct and the redundancy was found to have been made for sound business rather than personal reasons.

Insufficient investigation implicated in Choice Homes debacle

- Tuesday, January 28, 2014

 

When the sole director of Choice Homes summarily fired a senior manager for sending an “all staff” email that implicated that the director was a w**ker, it is highly unlikely that the director planned for the massive reputational damage that he incurred at the unfair dismissal hearing in December 2013.

Basic investigation of common work practices and applying procedural fairness principles, by allowing the manager a right to respond to allegations prior to dismissing him, could have saved Choice Homes from poor decision making and public humiliation.


The circumstances
In April 2013, Mr Knight, sole director of Choice Homes purchased a Lamborghini motor vehicle and said that he had worked towards this for a very long time. One morning in May 2013 at 9.40am, on the 20th anniversary of Mr Knight’s involvement with Choice Homes, Mr Knight received an email from Mr Steve Bignill, the Construction Manager of Choice Homes which was addressed to ‘all staff’. The email included images of a 20 year service award medallion and a Lamborghini motor vehicle and stated in the subject line:

Congratulations you have reached 20 years service on the books .... and your reward is a Lamborghini.”

At 9.43 am Mr Cronin responded to that email and directed an email to Mr Bignill, Mr Cronin and the “AllStaff” group. The subject line of Mr Cronin’s email stated:

RE: Congratulations - I actually found his original resume too !!

Attached was a document in the following terms:

“Hobbies & Interests
  • Gym and fitness
  • Tennis 
  • Computers 
  • Excessive Masturbation 
  • Football 
  • Socialising 
  • Bungee jumping and skydiving”

The Fair Work Commissioner stated that “It is not in dispute that the attached document is a “mock” resume taken from a website called “Lamebook”, containing documents said to be humorous”.

Later that morning Mr Cronin was summarily dismissed for serious misconduct for distributing an email the “content of an explicit sexual nature. The email was both offensive and inappropriate”.

Mr Cronin’s application:
Mr Cronin contested that his dismissal was harsh, unjust and unreasonable. The Commission agreed with Mr Cronin stating:  

“Generally, an employee who sends an email inferring that the Chief Executive Office is a “wanker” will be found to have engaged in misconduct. While Mr Cronin’s email was ill-considered, and personally offensive to Mr Knight, in all of the circumstances of this case, the email did not constitute a valid reason for Mr Cronin’s dismissal.

The proposition that Mr Bignill or Mr Stern would have been offended at the use of the term “masturbation” is ludicrous, when viewed in the context of their predilection for hard core pornography and other highly offensive material. Mr Knight’s concern about offence which may have been taken by female staff of Choice Homes to Mr Cronin’s email is also ludicrous when consideration is given to the active involvement of female staff of Choice Homes in circulating highly offensive material.”

In finding that the dismissal was harsh, unjust and unreasonable Deputy President Asbury held:

Dismissal HARSH:

Mr Cronin’s dismissal was harsh as:
Mr Cronin had been in continuous employment for more than 6 years and had been unable to secure alternative employment and as such the penalty was harsh in that it had serious consequences for Mr Cronin.

Dismissal UNJUST:

Mr Cronin’s dismissal was unjust as:
Mr Knight’s reaction was disproportionate to the conduct;
Given the culture at Choice Homes and that other employees had engaged in more serious misconduct and not been dismissed;
The manner in which the dismissal was conducted did not permit Mr Cronin to apologise or provide a response to the allegations.

Dismissal UNREASONABLE:

Mr Cronin’s dismissal was unreasonable as:
The email was clearly intended as a joke;
The reference to masturbation was not sexual and therefore the email did not include sexually explicit material;
There was a workplace culture of distributing and disseminating emails that tick every box in the spectrum of highly offensive material including hard core pornography, sexism and racism and where more serious misconduct engaged in by other employees did not result in dismissal”.

Mr Knight claimed that he was not aware of a culture of disseminating and circulating sexual explicit emails within the organisation however simple examination of Mr Cronin’s emails would have exposed such conduct as rife and may have led to better decision making in terms of what was the most appropriate course of action to take regarding Mr Cronin at the time.

The Commission criticised the employer for failing to demonstrate that any of its employees had actually been humiliated or offended by the email sent by Mr Cronin. The Employer only asserted that employees would have been offended which was considered insufficient by the commission.

Finally the failure to provide Mr Cronin with a right to respond to the allegations prior to his dismissal was a clear failure to provide procedural fairness.

Lessons to be learned:

  1. Disciplinary action should be applied consistently across an organisation and in proportion to the conduct at issue;
  2. However clear the evidence appears, an investigation to determine key elements that a breach of company policy has occurred will assist in defending any future court action;
  3. Investigate how a person’s conduct compares with prevailing workplace culture as this will determine what level of penalty you can put in place;
  4. Always allow a person a right to respond to allegations particularly when the outcome is significant to the individual accused.
Reference:

Paul Cronin v Choice Homes (Qld) Pty Ltd [2013] FWC 10240 (30 December 2013)

photo credit: TheSite.org

Lessons for employers about bullying dismissals

- Tuesday, August 27, 2013

A recent case determined by the Fair Work Commission provides some important lessons for employers about bullying dismissals. 

In Harris v Workpac Pty Ltd [2013] FWC 4111 the Commission found in favour of the applicant and determined that her dismissal for gross misconduct for bullying a co-worker was unfair.

Mrs Harris was dismissed on 20 December 2012 with five weeks pay for gross misconduct for bullying a co-worker.  She was dismissed after a co worker resigned and made complaints of persistent bullying and humiliation against Mrs Harris during an exit interview. 

The complaints were investigated although no evidence of the investigation or the decision making process was provided to the Commission. Similarly no evidence was provided by the co worker to support her claims of bullying, aside from a statement containing general comments of how the applicant made her feel.

Mrs Harris was notified by email of the allegations just a couple of hours before being interviewed and despite disputing the allegations, she was dismissed the same day for gross misconduct.

Significantly, despite the employer conducting a quick investigation and finding that the behaviour complained of had occurred over a prolonged period of time, the employer failed to provide any evidence about the investigation or their reasoning for dismissing Mrs Harris.

The complainant’s allegations were vague and disputed and the Commissioner cited a lack of evidence from either party as a barrier to his decision making.

The complainant stated she previously complained at the time of the incidents but the employer did not produce evidence that any action had been taken in relation to these earlier complaints, nor any evidence that the complaints were investigated following the resignation of the co worker.

The Commissioner stated:
"while the Commissioner does not and should not endorse the view that "anything goes" at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with vigour and related to incidents which occurred some time ago. In my view the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities not divine angels employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is "guilty of bullying" and "gross misconduct".

The Commission also criticised the employer for failing to take into account that the majority of incidents complained about occurred when Mrs Harris’ husband was in a coma and subsequently died.  The Commission stated that this was a period of recognised stress and should have been considered in the determination of the dismissal.

Lessons for employers to take away from this case include:
  • The importance of line managers responding to complaints at the time they occur;
  • The need for the complainant to particularise the complaints - general statements going only to the impact of the behaviour are insufficient;
  • Do not assume that the level of harm is directly proportionate to the poor behaviour. 
  • The need for employers to document the investigation AND the decision making process related to disciplinary action;
  • Take into account circumstances that may mitigate against the behaviour.

 

For guidance on responding to complaints WISE Workplace has prepared a free e-book:

Five top tips on investigating workplace bullying

- Wednesday, June 19, 2013

New federal legislation passed this month means employers will need to pick up their game when managing complaints of workplace bullying.

Prevention is the best place to start. However, putting in place suitably qualified staff capable of conducting robust investigations and managing difficult cases is an essential strategy for any employer.

Previously, the investigation of workplace bullying involved managing the challenges of workers taking ‘sick leave’ and lodging a compensation claim for the stress caused by bullying at work.

Employers may also have had to navigate issues when HR became the subject of complaint when they assisted managers with performance management.

From 2014, however, HR policies and procedures will come under scrutiny directly by the Fair Work Commission, and staff will potentially have to handle prevention orders from the FWC.

This kind of oversight is not new to all business, but many will find this unfamiliar territory stressful. It will provide complainants with an extra level of control.

For the past 12 years, WISE Workplace has helped companies and government agencies manage investigations into bullying. Here are our top five tips for the successful management of these often difficult cases:

  1. Ensure procedural fairness is afforded to both complainant and respondent. This means allowing both parties to have their say.  More than just a procedural step, the key to procedural fairness is to ensure that this is done with an open mind and that key decisions are not made until ALL parties have been spoken to and supporting evidence gathered.
  2. Do not make assumptions based on your prior knowledge of parties involved. There are just as many frivolous, ill-conceived complaints as there are substantive ones - and some of the biggest bullies sit high up in an organisation.
  3. Do not allow staff to make ‘confidential’ complaints that may be about bullying. You have a legal responsibility to ensure that bullying behaviour does not go unchecked. If you receive complaints or whinges of behaviour that you consider could be bullying you will need to start an investigation regardless of the wishes of the complainant.
  4. Resist the temptation to perceive complainants as ‘difficult’ or disingenuous because they use or threaten external avenues for complaints. Lodging a workers compensation claim if you are harmed, lodging a complaint with the Fair Work Commission, a human rights commission, ombudsman or solicitor are all legitimate avenues for a victim of bullying. In extreme cases, victims may also legitimately report actions to the police. These things make the cases complex not implausible. 
  5. Make sure you understand the concept of the ‘reasonable person test’ when it comes to assessing management action and behaviour that may have a risk to health and safety.

Safe Work Australia has released the Draft Code of Practice - Preventing and Responding to Workplace Bullying for public consultation. Responses are invited until 15 July, 2013.

WISE Workplace offers training to HR professionals and managers on how to respond to workplace bullying, conducting investigations and making findings of fact. For more information you can call us on 1300 580 685.