From Cyberspace to Head Space

- Monday, October 05, 2015
Workplace bullying spills over to cyberspace

So much of our lives are lived online these days, and even workplace bullying has made the leap to cyberspace. As one recent case before the Fair Work Commission (FWC) illustrates, employers need to be vigilant about what happens both in the office and online, as bullying spills beyond the boundaries of the physical workplace and on to social media.  

A case with a social media aspecT

In late September 2015, the FWC issued a stop bullying order in response to an application made by a Tasmanian real estate property consultant. She alleged that she had been bullied by the sales administrator Mrs Bird (who was also one of the owners of the business), almost from the commencement of her employment in May 2014.   

In one key incident, there was an impromptu meeting between Mrs Bird and the applicant, in which Mrs Bird accused her of being disrespectful and undermining her authority. Mrs Bird said the applicant was a “naughty little schoolgirl running to the teacher.”   The applicant tried to leave the room but Mrs Bird stood in the doorway, blocking her path. The applicant was humiliated and distressed and left the office to compose herself. While she was out, she checked her Facebook account and discovered that Mrs Bird had unfriended her. Shortly afterwards, the applicant took two weeks’ sick leave, followed by a workers’ compensation claim. 

The FWC found that found that Mrs Bird’s schoolgirl comment was “provocative and disobliging” and that the Facebook unfriending showed a “lack of emotional maturity and [was] indicative of unreasonable behaviour.”   

The applicant had been diagnosed with depression and anxiety for which she was being medicated and treated by a psychologist. The FWC found that Mrs Bird’s conduct posed a risk to the applicant’s health and safety. The FWC was satisfied that bullying had occurred and there was a risk that it would continue. Even though the employer had recently implemented an anti-bullying policy and manual, Mrs Bird and the employer had failed to appreciate the seriousness of the conduct.   

The FWC issued a stop bullying order, and referred the matter to a conference to be resolved.

Use of social media in workplace bullying

In 2014, the NSW District Court determined that cyberbullying could happen anywhere, not just in the physical work environment. The court was considering a case in which a teacher was suing a former student for defamation after the former student posted a series of defamatory tweets on Twitter.   

This highlights the need for employers to take immediate action if employees are found to be posting negative or defamatory comments on social media, regardless of whether the comments are about other employees, or external people or organisations.

The impacts of cyberbullying

Cyberbullying can impact an organisation in a number of ways, including:   

  • Management time spent investigating and managing complaints. 
  • Management time spent in FWC hearings. 
  • Increased employee sick leave and decreased productivity. 
  • Risk of workers’ compensation claims. 
  •  Increased friction between staff.   

Workplace cyberbullying should also be taken seriously because the employee can be exposed to the information online at any time – at work or at home. In other words, they have no escape.   

Psychological health is also a huge factor in workplace bullying and this case shows the psychological damage that bullying did to the applicant, exacerbated by the Facebook unfriending.  

The psychological impacts of bullying can include:   

  • Depression. 
  • Anxiety. 
  • Low self-esteem. 
  • Panic Attacks. 
  • Fatigue. 
  • Post Traumatic Stress Disorder. 
  • Suicidal thoughts.
Employer duty of care

Employers have a duty under occupational health and safety laws to provide a safe workplace for all employees. This includes a workplace that is free from bullying. Even though the FWC considered that the bullying of the applicant in this case posed a risk to her health and safety, it was concerning that the employer failed to recognise the seriousness of the conduct.   

Workplace bullying is no joke, as demonstrated by this case. It highlights the psychological impact of bullying and shows how social media can inflame the situation. Employers must be vigilant in monitoring the online activities of employees and educating them about appropriate conduct. This starts with a comprehensive policy and training. Employers should also take complaints seriously and investigate them thoroughly.   

The prevalence of social media use means that bullying issues have become far more complex to investigate and manage. If you have or suspect a bullying issue in your workplace, or would like assistance in writing guidelines or investigating complaints, contact us.

Cut to the Quick Part II: What Happens Next?

- Monday, September 28, 2015
Encouraging Reporting

It’s a delicate balance; how do you encourage employees to speak up about bullying and harassment in the workplace if they fear doing so will harm their career?

This is a central issue stemming from the release of a draft report into harassment, bullying and discrimination in the practice of surgery. The report, released earlier this month, found nearly half of junior respondents reported that they had been subjected to some form of abuse. Senior surgeons and consultants were thought to be the primary source of the problems. 

Some of the reasons for reluctance or failure to complain about poor treatment included:

  • Fear of damaging future employment prospects.
  • Lack of confidence in the handling of complaints.
  • Abuse of power and bystander silence.

In our previous article, we looked at the findings of the report. 

This week we ask the question: What can you do if people are being abused at work but don’t feel they can report it?

Two of the most obvious solutions are to establish a whistleblower hotline, and to put confidential reporting systems in place.

Blowing the whistle

Setting up a whistleblower hotline allows for the whistleblower's confidentiality and anonymity to be maintained as far as possible. Information on how to make a report and the process for the handling of tips should be clearly outlined and available.There are a number of other things employers can do to support whistleblowers, including:

  • Encourage whistleblowers to seek legal advice early and to foster strong partnerships with their legal advisors.
  • Encourage whistleblowers to use internal complaints processes before using formal external avenues (for example, complaints to government bodies).
  • Compensate for lost income, other damages and if applicable, reinstatement to employment.
Confidential reporting systems

The first step is to make sure that policies governing bullying and harassment in the workplace are available to all employees. Clear guidelines for the submission and handling of complaints or concerns should be in place, whether you set up a phone line or online reporting.

Other factors to consider include:

  • Engagement of an independent third party to receive complaints.
  • Allowing complaints to be lodged anonymously.
  • Allowing complainants to anonymously follow up on their complaints. 
  • Keeping a log of complaints details - their receipt, investigation and resolution.
  • Providing avenues for confidential advice to be given. 
Possible solutions in the surgery field

Interestingly, by far the most compelling ideas for fixing the problems in the practice of surgery came from the respondents themselves, many of whom chose to anonymously offer suggestions via online forums that were facilitated by the Expert Advisory Group (EAG) that was set up to research and write the draft report. They included: 

  • The Royal Australasian College of Surgeons (RACS)  to provide leadership to promote a culture of change.
  • Women should be appointed to leadership positions in RACS for role-modelling and mentoring.  An independent body, much like an ombudsman, to be established for complaints handling.
  • Data collection and reporting to be handled by an independent body.
  • An independent training body to be established to teach senior surgeons how to provide feedback and support for trainee doctors.
  • RACS governance to be reviewed to ensure its independence.Improved performance management, accountability and transparency.
  • Improve work/life balance issues.
  • Review of examinations and assessments to provide increased transparency and procedural fairness.

It remains to be seen what action will be taken. What is certain is that without change, society will pay the price for the attrition of junior surgeons who simply cannot (and shouldn’t have to) stand up to the abuses inflicted upon them by their superiors. The problems in this field are certainly not unique, but they do highlight the need for all employers to put appropriate protections and avenues for complaint into place.

WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.

(Articulates with Cert IV in Government Investigations)

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December

Cut to the Quick

- Monday, September 21, 2015
Surgeons Under Fire in Wake of Report Findings

In April 2015, at the launch of her new book, senior surgeon Dr Gabrielle McMullin sent shockwaves through the medical community. She declared that junior female surgeons and surgical students would be better off acquiescing to requests for sexual favours by their senior male colleagues, as refusing requests or taking action against them would be sure to be the end of their surgical careers in Australia.

Although she was criticised for her view, her comments did make everyone sit up and listen. 

The story was reported in the media and the powers-that-be also took note. The Royal Australasian College of Surgeons (RACS) commissioned an Expert Advisory Group (EAG) to report on discrimination, bullying and harassment in the practice of surgery. The draft report has now been released. 

Draft report findings

The draft report, released earlier in September, confirms that discrimination, bullying and sexual harassment are “pervasive and serious problems in the practice of surgery” and the effects are “significant and damaging.” It also finds that many surgeons do not believe the problems exist. 

The report’s key findings are that: 

  • Almost half of Fellows, trainees and graduates have experienced discrimination, bullying or sexual harassment.
  • 54 per cent of trainees and 45 per cent of junior Fellows have experienced bullying. 
  • Bullying is the most frequently reported issue in hospitals, followed by discrimination, workplace harassment and sexual harassment.
  • The problems occur in all surgical areas.
  • Senior surgeons and surgical consultants are reported as the primary source of the problems.
  • The most common form of discrimination is cultural, followed by sexual discrimination. 
  • The gender inequality in surgery means that the behaviour of senior surgeons and consultants towards more junior females often goes unchecked. 

ABC News has documented the disturbing stories contained in the report, such as one female student who was expected to provide sexual favours in return for tutorship, and another respondent who said “I was subjected to belittling, intimidation and public humiliation.” One woman said that she was required to work 30-hour shifts into the final weeks of pregnancy, and another said “I was told I would only be considered for a job if I had my tubes tied.”

Why not complain?

Why not complain about the bad treatment? The report found that there were plenty of reasons for victims to keep quiet: 

  • Fear that complaining would be an act of “career suicide” – that future employment prospects would be damaged.
  • Lack of trust and confidence in the complaints handling process.
  • Surgeons lacked the people and teaching skills to provide adequate education.
  • Lack of transparency and independence across the board – for example, complaints handling, data management, feedback and assessment.
  • Bad behaviour being passed from teacher to student, abuse of power and bystander silence.
  • Conflicts of interest as senior surgeons protect their market share by victimising more junior staff.
  • Poor work practices including long hours, unpaid work and inattention to work-life balance.
The response to the draft reporT

In response to the draft report, the RACS issued a statement accepting its findings and saying that:

“The College has apologised, on behalf of all Fellows, Trainees and International Medical Graduates, to everyone who has suffered discrimination, bullying or sexual harassment by surgeons.”

With the final report due in late September 2015, we now wait to see how RACS proposes to deal with the issues. There is certainly much to do – throughout the report there are quotes from doctors who do not recognise the problem, such as “surgery is a stressful speciality. If you can’t deal with the stress, and that includes bullying, you should choose a different profession.”

With bullying, harassment and discrimination being so entrenched in surgical practice, it is clear that a massive cultural change is needed and this will take time to effect. Surgeons perform such important work and their training is so extensive that any attrition because of these behaviours is damaging to the wider community. Let’s hope a solution can be found that has far-reaching and long-term effects. 

WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.

(Articulates with Cert IV in Government Investigations)

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December

When punishment doesn't fit the crime…..

- Monday, September 14, 2015
When Systems Designed to Protect Go Too Far

The current Royal Commission uncovering shocking examples of institutional child abuse has brought the issue to the forefront of our national consciousness. It is perhaps unsurprising, then, that some authorities get jittery about their role in protecting such a vulnerable section of the population. But sometimes, the very system that is supposed to protect in fact imposes unnecessary hardship.

Recent case illustrates the complexities
A case in point is the recent decision of BQY v Children’s Guardian. The applicant, referred to as BQY, was a 21-year-old student teacher when she met the student, who was aged 17 and in year 12. She completed her teaching placement at the student’s school, and subsequently had a series of chance meetings with him and his friends at pubs and clubs. She had also befriended some of them on social media. 

A few weeks after the end of her placement, BQY was invited by the student’s friends to contribute to a gift for his 18th birthday. She contributed $50 and the group purchased a TV as the gift. BQY was to deliver the TV to the student as she was the only one with a car. 

She delivered the TV to the student at home (his mother was also at home at the time). While there, the student kissed her. Immediately afterwards, things became awkward, so she left and had very little contact with him after that. There was no further physical contact between them. There was a subsequent investigation by the NSW Department of Education and Communities (DEC) which found that BQY had committed misconduct. BQY had responded to the allegations in writing and confirmed that she had formed a social relationship with the student and that they had shared one kiss. 

On the basis of the misconduct finding, the Children’s Guardian refused to give her a clearance to work with children. This would make it impossible for her to find work as a teacher. BQY applied to the NSW Civil and Administrative Tribunal for the decision to be reviewed.
Reason prevails in review
In reaching its decision, nearly nine months after BQY was first refused clearance, the tribunal looked at relevant child protection legislation, which provided that clearances could be refused by the Children’s Guardian where the applicant posed a risk to the safety of children.There was no doubt that BQY had exercised poor professional judgment in allowing her friendships with the students to develop socially, and she accepted that she should not have contributed to the gift or delivered it to the student’s home. She had also demonstrated “sincere regret” for her conduct.

At the time they kissed, the student was aged 18 and no longer a child within the meaning of the legislation. The age difference between them was three and a half years. 

BQY was deemed not to pose a real threat to children and so her working with children clearance was granted.
The repercussions of the case
There are rigorous requirements for the NSW working with children check. Not only must a national criminal history check be conducted, but also a check for workplace misconduct. It is one of the highest standard checks in the country.

But it is a real concern when less serious circumstances can lead to lifelong consequences, for example being barred from a vocation of choice. It is problematic that the Children’s Guardian appeared to take on a punitive role. Its primary function is to protect children from harm rather than to punish someone who at worst exercised poor professional judgment. It is also excessively harsh that it took almost nine months to overturn the decision.

Thankfully, in this situation, common sense prevailed and the tribunal looked behind a black-and-white application of the legislation and closely scrutinised the factual circumstances. In short, finding that the punishment didn’t fit the crime.

Essential tips on moving forward…and leaving bullies behind

- Monday, September 07, 2015
Organisational Change and Workplace Bullying Complaints

In hindsight, a workplace bullying situation can seem both regrettable and avoidable. Yet time and again, we find that the circumstances leading to the making of a bullying complaint were predictable, or at least displayed a reasonable risk of complaints of bullying occurring. 

What we can all agree on is by the time a complaint has been made, much of the damage has already been done. Prevention is the best medicine. 

We examine three of the key structural precursors to workplace bullying complaints, which business owners and managers should keep an eye out for. Through the prism of real-world cases, three common structural precursors to bullying complaints are highlighted: 
  • Long-term borderline poor performance issues. 
  • Replacement of someone in an acting position. 
  • Placement of a new manager into an established team. 
What all these have in common is organisational change. 
Cases to consider
1. Long-term borderline poor performance issues 

In a recent hospital-based matter, the complainant, enrolled nurse (C), raised allegations of inappropriate action by management. This included being telephoned at home while on sick leave, being refused weekend shifts, and not having her university commitments accommodated in the roster. C had been on and off performance management programs for 24 months when supervisors received a complaint regarding her performance from a doctor and took more decisive action. 

C claimed unfairness in the investigation; doctors at the hospital had allegedly been invited to complain about C, and the complainant had been given no right of reply. As a result of the complaints, C was required to undergo further nursing assessment and restricted work hours that meant loss of shift penalties. Much of the management action was found to be reasonable in this case, but given the long-term nature of the performance management and ongoing dissatisfaction of the complainant, despite the outcome of an investigation into the allegations of bullying, C was unlikely to be satisfied unless the finding was in her favour. 

2. Replacement of someone in an acting position 

In another matter, an existing employee R alleged that she had been the subject of workplace bullying by the new manager W. Hostilities commenced only weeks after W arrived in the new position, usurping R in her established communications with the Director. Early complaints were made but dismissed as teething problems. The conduct didn’t subside, with the investigation establishing that while some of the behaviour towards R was reasonable management action, much of it, including the withholding of leave application approvals and the allocation of tasks outside of R’s capabilities, was bullying. 

3. Placement of a new manager into an established team 

This is often done following a restructure or to bring about cultural change, but when new managers are asked to lead established teams it can be a catalyst for a very unhappy workplace. If not managed correctly, the subculture of the team will seek to test the manager and resistance for change can lead to feelings of isolation and bullying in the manager. A change of direction and new demands on employees can also create feelings of injustice in the team, leading to cross complaints.
Organisational change
These three very typical cases demonstrate the types of situations where, through the process of organisational change, feelings of bullying can arise. But how do we prevent such complaints and circumstances without the benefit of hindsight? 
  • Awareness 
  • Risk assessment 
  • Rapid response to early signs 
  • Focus on fairness in outcomes 

The first step is being aware of situations where complaints could arise. Being aware automatically makes us sensitive to avoiding difficult situations and conflict. 

Risk assessment 

With organisational changes, the implications of certain decisions on teams should be subject to risk assessments that include consideration of moral impacts on individuals and the likelihood of complaints of bullying. Once assessed as a risk, preventative measures can be adopted to reduce the likelihood of such events occurring. 

Rapid response to early signs 

It is very tempting to dismiss early signs of disharmony and adopt the head in the sand approach to interpersonal conflict. In some cases, this strategy works and the problem appears to go away. When it doesn’t, however, the problems are multiplied and positions become entrenched – making mediation and resolution much more difficult. 

Focus on fairness in outcomes 

Finally, when conflict is addressed, early stages of intervention should focus on the end game rather than remaining in the past. If parties can be brought to a position where they want their working relationship to be now, rather than focusing on the rights and wrongs of yesterday, it may be possible to turn the situation around, avoiding continued conflict and complaints.

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

(Articulates with Cert IV in Government Investigations)

Over 2 days rather than 3
Special discounted rate of $1400
Location: Brisbane
Date: 16-17 September

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December

Another Dimension to the Standard Of Proof?

- Monday, August 31, 2015
Another Dimension to the Standard Of Proof?

It is not uncommon that following a workplace investigation, the former employee raises allegations that the process was procedurally flawed. In addition to considering the investigation process, we need to be aware that the standard of proof used to make any findings may be called into question. In other words, although the investigator may have followed all the appropriate steps, the findings themselves may not be sound.

The case law

The standard we are (hopefully) familiar with is found in Briginshaw v Briginshaw. In this matter, his Honour made it plain that before accepting the truth of evidence of a particular allegation, there is a need to consider the nature of the allegation and the likely consequences that will follow should an adverse finding be made.

The legislation

The standard of proof required is laid out in the Evidence Act 1995, where we are told that: 

  • In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. 
  • Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: 
a. the nature of the cause of action or defence; and
b. the nature of the subject-matter of the proceeding; and
c. the gravity of the matters alleged. 
What is the new dimension?
Bartlett v Australia & New Zealand Banking Group Limited [2014] NSW SC 1662 relates to the termination of a senior executive’s appointment without notice for serious misconduct. In brief, an email sent to a journalist was doctored with the addition of a number of false statements. 

The (now former) employee sued ANZ for damages for breach of contract alleging that he was not guilty of serious misconduct and therefore that ANZ was not entitled to terminate his employment without notice.   

ANZ argued that it was entitled to terminate the employee's employment without notice, since such conduct would amount to serious misconduct within the meaning of a clause of the contract. 

The clause that ANZ relied on was: 

  • b. ANZ may terminate your employment at any time, if, in the opinion of ANZ, you engage in serious misconduct, serious neglect of duty, or serious breach of any terms of this employment agreement… 

The words "in the opinion of ANZ" mean that the underlying fact is not the determining matter but whether, in the opinion of ANZ, the employee was guilty of serious misconduct. In this instance, it was found that ANZ was entitled to dismiss the employee.

What does this mean?

When conducting a workplace investigation, the employment contract and any relevant policy and procedure wording should be reviewed to identify any provisions which may bear upon the appropriate standard of proof to be applied. The ANZ case also enables the employer to draft employment contracts, policies and procedures to set their own standard of proof in respect of termination clauses and other procedural matters.

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

(Articulates with Cert IV in Government Investigations)

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October

Bridging the Gap

- Monday, August 24, 2015
Interview Challenges Across the Civil and Criminal Divide

There are special skills that come into play during any workplace investigative interview. Particular care is needed, however, when non-criminal elements of a child-related issue are under investigation. Criminal and civil investigative processes might both be required for the one workplace matter, and within each approach the challenges can be considerable.

Child-related complexities

At first it might seem unusual that a workplace investigator would need to get involved in an investigation concerning children. But if we think about it, the numbers of workplaces that either employ or interact with children are considerable; from schools and churches to fun parks and retail outlets. Care must be taken in such investigations to ensure that all criminal/ non-criminal aspects are well managed in the context of any vulnerable persons.

Special workplace issues

Criminal prosecution might seem like the only natural avenue to follow when a workplace issue relates to alleged child abuse. Yet often there will be non-criminal elements that come to the fore in such cases, related to misconduct, bullying, occupational health risks and the like. And very often these matters will need to be examined via a workplace investigation, regardless of the outcome of any criminal prosecution.

The criminal angle

In some cases, a criminal investigation will be carried out first where serious allegations are raised in the workplace. Understandably, police investigators employ interviewing techniques that are centred upon the criminal elements of the matter. Yet in many cases after a prosecution is dropped, workplace investigators are then left with investigative challenges such as:

  • Delays that can occur between the criminal matter and the workplace investigation.
  • Initial police focus in interviews upon criminality, which can bypass pertinent non-criminal issues.
  • Evidentiary issues flowing from differing standards of proof in criminal and civil matters.
Some cases in point

In a recent case involving a staff member and the client of a sheltered workshop, a police investigation was conducted into allegations of sexual assault by the employee. The police understandably focused upon the potential criminal elements. They did not proceed with prosecution, due to issues of legal competence and limited prospects of prosecutorial success. 

Dilemmas of time and proof

The workplace investigator in this case was then faced with issues such as witnesses who were no longer available, permission to use statements being refused, plus continuing issues around witness competence. Interestingly however, the differing standard of proof in non-criminal matters – plus specific evidence gleaned about complaints processes – were sufficient for the workplace investigation to generate successful outcomes regarding certain staff.

Unsafe haven?

In another matter involving a member of the clergy, delay caused considerable issues for the workplace investigation and the manner in which interviews could be conducted. The case involved allegations being made against a priest in relation to his dealings with a young boy. After 12 months, including several delays between the prosecution’s evidence-gathering endeavours, a decision was finally made by the police not to proceed with the case. 

Taking up the non-criminal case

The challenges then faced by the workplace investigator regarding the allegations in their industrial context were considerable. Taking up the case from the non-criminal point of view, the workplace investigator dealt with a number of difficulties around both time delays and prosecution-focused interview techniques. Despite these challenges, nuanced investigative interviews and evidence collection led to decisive action being taken on the non-criminal workplace issues. The principle in Briginshaw was carefully incorporated into all evidentiary activities carried out by the investigator, enabling appropriate action to be taken.

Anticipate the challenges

Between criminal and non-criminal investigations there can be a number of differences that need to be managed with care. Workplace investigators must work out ways to effectively elicit information that is relevant to the workplace issues. And the emphasis in work-related interviews will necessarily differ from interviews carried out by police. Employers should ideally act swiftly following police investigations to ensure that evidence and witnesses remain available to a workplace investigator. The criminal/non-criminal divide in work-related investigations must be handled skilfully by all involved. It is certainly worth the effort to get the process right – particularly when children and other vulnerable persons come into the equation.

Focusing on Quality in Workplace Investigations

- Monday, August 17, 2015
Avoiding Pitfalls in Workplace Investigations

Choosing an investigator to conduct your workplace investigation can be a complex task. Do you look internally or externally? What are the features of a high-quality workplace investigator? And what common problems can arise along the way? Common issues that employers should consider include:

  • How confidentiality and fairness are to be balanced. 
  • How quality will be assured without undue cost. 
  • How and when information will be communicated throughout the workplace investigation. 

Establishing end-to-end quality in your workplace investigation can save considerable time and resources down the track. It is far better to plan well prior to an investigation, than to find yourself with an investigation outcome that is more harmful than helpful.

Confidentiality versus procedural fairness

Right at the start of any workplace investigation, it is vital that all parties understand the nuances and limits of confidentiality. While it can be tempting to invite witnesses to ‘speak freely’, can you be confident about the extent to which information is, in fact, protected? Employers can at times believe that their lawyers have certain communications ‘under wraps’ via legal professional privilege. Yet some workplace investigators have learned the hard way that such assurances can be dangerously hollow. Despite some employers depending upon lawyers to conduct the ‘best’ investigation, it can often be the case that a specialised workplace investigator will more readily understand the particular nuances of the confidentiality/ fairness divide.

A related factor complicating the confidentiality issue is the need for rigorous adherence to the principles of procedural fairness throughout the workplace investigation. If a party is unfairly prevented from accessing and responding to adverse material relevant to their situation for example, procedural fairness might well be lost. Understanding and communicating the requirements of procedural fairness are core elements of the investigator’s role.

Cost versus quality

It is certainly understandable that business owners wish to have workplace investigations finished quickly and efficiently. An internal solution can seem ideal - you don’t have to lose valuable time and money explaining the environment, systems and personnel to your internal investigator. As with many ‘simple’ options however, there are particular pitfalls to consider. Consciously or not, an internal investigator might be pressured to support particular interests – including the employer’s, the complainant’s or those of certain colleagues. Such a slant can unfortunately lead to investigative outcomes that fail the test of procedural fairness. 

A related problem can be the continuous use of the same ‘reliable’ external service provider. A better strategy for quality investigations is to utilise a number of external investigators. Reports and outcomes thus have a greater chance of reflecting true independence.

Clear communication

An experienced and professional workplace investigator will have a solid communication strategy in place for the duration of the investigation. Avoid selecting an investigator who cannot clearly describe the investigative process in terms of available communication channels, plus the key delivery dates for investigation outcomes. 

Such outcomes can include the draft investigation report, feedback options and the final report. An astute workplace investigator knows how to employ flexibility in communication – without jeopardising the overall fairness of the process. Professionals in the field understand the importance of accessibility without bias. If an employer, complainant or other party attempts to exert undue influence over proceedings, an investigator must be able to clearly delineate and communicate appropriate boundaries.

Education is power

It can be counterproductive to simply criticise employers who decide to conduct internal workplace investigations themselves. For workplaces where the nature and pitfalls of workplace investigations are well-understood, an internal investigation might in fact be an adequate solution. With appropriate education and assistance, there is room for workplace investigations to be carried out well in-house.

Where a work situation is complex and/or fraught with issues however, an external professional investigator might be the safer option. If this is the option taken, employers should vet potential investigators about their proven record in conducting high-quality workplace investigations. With solid research and planning, employers can build a solid defence against the pitfalls of workplace investigations.

First Formal FWC Ruling Since Introduction of Bullying Rules

- Monday, August 10, 2015
First Formal FWC Ruling Since Introduction of Bullying Rules

The Fair Work Commission (FWC) has issued a formal ruling for a Stop Bullying Order under section 789FF of the Fair Work Act. It’s the first formal ruling since the anti-bullying provisions of the Act came into effect on January 1, 2014. 

The Details of the case 

In the ruling on August 5, the FWC de-identified the names of all parties. The case involved two employees of a real estate business who applied to the FWC for a Stop Bullying Order, alleging that a manager at the workplace had engaged in:

  • Belittling conduct. 
  • Swearing, yelling and use of other inappropriate language. 
  • Interfering with and undermining the employees’ work. 
  • Physical intimidation and “slamming” objects on the employees’ desks.
  • Attempts to incite the applicants to victimise other staff members.
  • Threats of violence.

The employer had conducted an informal investigation of the allegations, and attempted mediation between the parties, which was unsuccessful. In the end, the manager resigned from her employment, and was then employed in another related business. The employer believed that the manager’s removal from the workplace had solved the problem. 

But the manager was then seconded back to the workplace – a placement that was intended to be short-term – which saw her physically back in the company of the employees. The employees applied to the FWC for a Stop Bullying Order, made workers’ compensation claims and underwent medical treatment. At the time of the hearing, both employees were on sick leave. 

The commission’s findings

The FWC considered section 789FD of the Act and in particular the meaning of bullying. The FWC found that the manager had engaged in bullying that was within the definition of the Act:

“The conduct revealed … was indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved,” the FWC found.

The FWC also found that even though the manager had been relocated, her secondment and the need for the businesses to interact from time to time meant that there was a real risk that the manager and employees would continue to have contact with each other. This posed a further risk to the health and safety of the employees and so the employer should have taken further steps to prevent the bullying from recurring.

The FWC ordered that for a period of two years:

  • The parties not approach one another and not attend each other’s premises.
  • The employer implement anti-bullying policies, procedures and training including outlining to all employees its expectations about appropriate conduct and behaviour. 
  • The employer was also ordered to clarify its arrangements for reporting bullying.

The importance of policies and procedures
The FWC’s reasoning makes it clear that the employer’s lack of policies and procedures was a significant issue. An anti-bullying policy is an opportunity for the employer to send a strong message to all its employees, regardless of seniority, about expectations of appropriate behaviour and the ramifications for poor conduct. It also becomes a legal document in the event of any escalation of bullying issues. A good anti-bullying policy should also set out procedures for dealing with bullying complaints. Employers must ensure that they are closely followed.

Employers should also take meaningful action around bullying by:

  • Taking complaints seriously.
  • Properly investigating complaints.
  • Investigating without bias.
  • Applying policies consistently (especially when it comes to disciplinary action).
  • Determining what safety measures should be implemented.
  • Providing training to employees to identify what is and is not bullying. 
The order makes it clear that the FWC will be intolerant of employers who have failed to put in place policies and procedures aimed at preventing bullying. Employees also need to be educated in the requirements of the policies and procedures, and understand what constitutes bullying and the terrible effects that it can have on other staff members. 

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.
(Articulates with Cert IV in Government Investigations)

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October

Protecting Casual Workers

- Monday, August 03, 2015
Casual employees and discrimination
Have Casuals? Discrimination and Unlawful Dismissal DO Apply

There are huge benefits to employers in having a workforce of casual employees. There’s no need to worry about leave entitlements, work hours can be changed at short notice, and it’s easy to shed or add staff depending on the needs of the business. Indeed, casualisation has revolutionised the modern workforce in many ways. But a serious issue arises when employers treat casual workers as expendable, for example if a casual worker’s employment is terminated for discriminatory reasons. 

Discrimination in employment

Discrimination in the workplace occurs when an employee or potential employee is treated unfavourably on the basis of: 

  • Race
  • Colour
  • Gender
  • Sexual preference
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion 
  • National extraction or social origin

The Fair Work Act prohibits employers from taking adverse action against employees for discriminatory reasons. Adverse action can include termination of employment, altering an employee’s position to their detriment or refusing to employ a prospective employee. Termination of employment for discriminatory reasons is known as unlawful dismissal. Significantly, the Act does not distinguish between large or small employers. 

Any employer, regardless of how big or small, is prohibited from engaging in discriminatory conduct. Additionally, the Act prohibits discrimination against any employee or prospective employee.That means that employers cannot discriminate against casual employees.

Casual employment conditions

If a casual employee’s employment is terminated for discriminatory reasons, they can take action for unlawful dismissal under the Fair Work Act, provided that they have:

  • Worked for the employer on a regular and systematic basis.
  • A reasonable expectation of continuing employment.
  • Been employed for a minimum of six or 12 months (depending on the size of the organisation). 

For example, an employee who for 14 months worked regular days and hours for a store suddenly had her hours cut by 50 per cent. When she asked why, she was told by management that it was felt that someone younger would bring in more sales. 

In this case, the employer may have thought to rely on the employee’s casual employment status to make a tough decision. But in reality, the employer discriminated against the employee on the basis of her age. The employee could make a complaint to the Fair Work Ombudsman to have her hours restored. If the employee felt compelled to resign because the severe reduction in her hours had made her position untenable, she may make a claim of unlawful dismissal in the Fair Work Commission. She may argue that she was constructively dismissed – that she had no other option but to resign – and rely on the regularity and length of her employment to meet the jurisdictional requirements of the commission. 

Even if the employee doesn’t meet the commission’s jurisdictional requirements, she may choose to take action elsewhere, for example under state anti-discrimination or equal opportunity legislation (legislation varies from state to state), or make a complaint to the Australian Human Rights Commission under the Australian Human Rights Commission Act and the Age Discrimination Act.

The implications for employers

 It is important for employers to realise that despite the highly flexible nature of casual employment, casual employees can still exercise their rights under state or federal legislation, even if they have no jurisdiction to bring an action under the Fair Work Act. And if a casual employee is out of work due to an act of discrimination, there may be nothing to stop them from making a complaint. A complaint of discrimination by an employee (or former employee) will impact on an employer. Valuable time will be spent investigating the complaint, and legal expertise may be required to defend the complaint – a costly undertaking. Workplace practices and procedures may also need to be reviewed in light of the allegations. Steering clear of discrimination is a far more cost-effective way to operate a business, and employers should send a strong message to all staff that discrimination is not to be tolerated. 

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October