Conducting Workplace Investigations: What You Need to Know

Vince Scopelliti - Wednesday, January 31, 2018

Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time. 

Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings. 

So, what are the most important things you need to be aware of when conducting a workplace investigation?

understanding why an investigation is necessary

All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission. 

Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable. 

Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.

how can your human resources team support you?

If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation. 

Your HR team can facilitate a successful investigation by:

  • Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
  • Providing a clear timeline and outline of processes;
  • Ensuring that staff are aware of their rights to have support persons involved;
  • At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.  

fact finding vs formal investigation

Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis. 

A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.

The need for procedural fairness 

A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness - a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.

The key elements of procedural fairness include:

  • Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
  • Permitting a reasonable amount of time for the employee to respond to the allegations;
  • Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
  • Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
  • Ensuring that decisions effecting the employee are based on evidence. 

So what is involved in conducting a workplace investigation?

The key elements of an effective investigation include:

1. Planning the Investigation

  • Adequate planning before the investigation starts, including considering any potential conflicts of interest;
  • The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
  • Preparing a list of interview questions for each witness;
  • Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
  • Notify all parties of there involvement, rights and obligations. 

2. Interviewing

  • Provide sufficient notice and make appropriate arrangements with all witnesses
  • Conducting formal interviews objectively and sensitively, having regard to the circumstances;
  • Checking that representation or support has been offered and outlining the investigation process and timeline;
  • Obtaining as much detailed evidence as possible

3. Analysing and Weighing the Evidence

  • Assessing the evidence with regard to reliability, consistency and credibility;
  • Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
  • Coming to a conclusion and making a finding, based on the evidence gathered. 

4. Facilitating a Resolution

  • This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling. 

When to ask for help

The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive. 

In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process. 

This could include situations where: 

  • Serious allegations are made and there is a potential risk of criminal or civil litigation;
  • Complaints are made against senior employees;
  • A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally; 
  • There is a need for legal privilege to cover the circumstances;
  • There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge. 

If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations. 

The Cost of Aggressive Leaders

Vince Scopelliti - Wednesday, January 24, 2018

There are many different skills which are required for an effective leader - such as excellent communication skills, perseverance, the ability to inspire and motivate staff, clarity of thought, and efficiency. But one detrimental trait that many leaders may possess is aggression.

Although it is often accepted that a domineering personality seems to go hand in hand with successful leadership, in many situations it can actually get in the way of optimal and effective management.

a bad habit or a behavioural strength? 

There are different levels on the scale of aggression - and indeed, for some jobs a level of combativeness is almost an essential quality. From a CEO accustomed to facilitating hostile takeovers, to a litigator who must take charge of a courtroom, to a police officer, in these careers, behavioural traits which are more closely aligned with aggression can be helpful. 

Contrast this with "softer" jobs, such as a primary school teacher, a nurse, a psychologist or a social worker, and it becomes apparent that certain personality traits are much better suited to some industries than others. 

Hiring managers and HR managers responsible for recruitment and selection of managers need to be aware of the difference between simple assertiveness and unbridled aggression or even narcissism.

the difference between assertive and aggressive

A "positive" and assertive boss might:

  • Engage in competition against external competitors, but support a whole team ethos;
  • Be forthright and open, including potentially critical - but be equally willing to accept criticism of their own methods;
  • Seek facts;
  • Respect the rights of staff to their own opinions. 

In comparison, a "negative" aggressive or narcissistic boss may:

  • Constantly compete with their own staff;
  • Belittle or punish those who disagree with the leader;
  • Base decisions on their emotions or feelings rather than rational or logical conclusions;
  • Mock or otherwise put down staff; 
  • Yell, gesture, stride around or otherwise engage in physically intimidating behaviours.

the downsides of aggressive behaviour in the workforce

In its most basic form, employees who work for aggressive leaders can be uninspired and unhappy, often not wishing to come to work. A leader who storms around like a bear with a sore head, as the expression goes, is likely to cause, or at the very least contribute to, a toxic workplace. 

This, in turn, can lead to significant losses in productivity, high rates of absenteeism or presenteeism (where staff physically turn up but do not properly fulfil their duties) and excessive staff turnover. 

changing leadership behaviour 

It can be difficult to modify leadership behaviour, particularly when it comes to leaders with type-A personalities, which will likely mean that they are reluctant to accept criticism or receive feedback well. 

Strategies for changing leadership behaviour, or at least improving the ability of staff to deal with aggressive leaders, include:

  • Building a strong relationship between the leader and the rest of their team, including by encouraging open communication and fostering the ability for human resources staff as well as team members to provide feedback on decisions made by the leader. 
  • Appeal to the leader's sense of logic and highlight the potential impact of their actions on the business.
  • In the case of narcissistic leaders, it can be helpful to frame feedback on their behaviour in terms of how it might negatively affect their goals, rather than as a direct personal criticism.
  • Stop supporting this type of behaviour by refusing to promote or reward leaders who are aggressive, and who refuse help to modify their behaviour. 

Taking a few simple steps towards correcting the ongoing behaviour of an aggressive leader, while still highlighting the importance of strength in decision-making, can help to significantly improve the satisfaction, productivity and quality of your workers. If you believe you have an aggressive leader or a toxic workplace where an investigation or cultural review would help, contact WISE today for an obligation free quote. 

Tackling a Toxic Workplace Culture

Vince Scopelliti - Wednesday, January 17, 2018

Many people start off each year with a bundle of resolutions - to eat better, to exercise more, to spend more time with the kids... the list goes on. The start of a new calendar year is also a fantastic time for businesses to take stock and reassess. If your workplace culture is getting in the way of your business fulfilling it's potential, make change your top New Year's resolution for 2018.

what is workplace culture? 

Culture is loosely defined as the beliefs and behaviours that govern how people act in an organisation. 

While it is often considered to be a vague concept, how workers interact with each other is an incredibly important part of work life. Good organisational culture is now believed to be a key factor in a business' success or failure. 

If staff feel uncomfortable, unhappy or excluded, they will obviously not enjoy coming to work - which generally means that they will be less motivated, less productive and reluctant to go beyond the call of duty when asked.

how to identify if your workplace culture is bad

Whether a workplace is toxic or not is difficult to define. Generally speaking, if people are unhappy at work more often than not, you are dealing with a poor workplace culture. 

Factors that can contribute to a toxic culture include:

  • Staff not being trusted to take calculated risks or perform their jobs without being micromanaged.
  • Workers constantly being asked to perform under significant pressure and without adequate resources being allocated to assist them.
  • A lack of clarity or top-down direction.
  • Poor leadership behaviour or interaction 

what happens when workplace cultures are toxic

Toxic cultures can breed hostile, pessimistic team members, drive away top talent and prevent organisations from reaching their full potential. 

Some signs and consequences of toxicity include:

  • Increasing staff conflict
  • High staff turnover
  • High levels of absenteeism
  • Presenteeism (where people physically show up at work, but don't perform their duties to the best of their abilities)
  • Increased workers' compensation claims
  • Complaints of bullying or other types of harassment 

HOW to chage a negative workplace culture

In order to address workplace toxicity, employers need to be prepared to tackle issues head-on. 

These 10 steps towards changing workplace culture for the better can help make the task less daunting.

  1. Identify and assess the underlying problems. This is best achieved by issuing a staff survey, conducting exit interviews to determine why staff are leaving, or otherwise encouraging open and honest feedback. 
  2. Establish a concrete company vision. Ensure that all employees are engaged with the vision and understand where the business is headed.
  3. Rinse and repeat - ideally, make sure that surveys and opinion polls are conducted on a regular basis to identify what factors may be improving or worsening the workplace culture.
  4. Encourage consultation and open communication. In addition to helping filter ideas and feedback up to the leadership team, this makes staff feel valued and assists in reducing emotions such as frustration or anger.
  5. Facilitate friendships and encourage team building. If your staff actually like each other, they are much more likely to take additional steps to support co-workers and the business. 
  6. Be consistent and fair. One of the biggest gripes of staff who feel they operate in a toxic environment is that their supervisors seem to change attitudes on a regular basis, or that responses are likely to vary depending on what mood the boss is in. 
  7. Maintain a sense of fun - all work and no play makes Jack a dull boy, as the saying goes, and creating a workplace where staff feel at home is much more likely to improve morale. 
  8. Pick your team wisely. When selecting and hiring new staff, consider how they will fit into the team and how they will get on with your other workers.
  9. Be physically present. Although senior staff will doubtless have different hours and regimes to stick to than average workers, it is disheartening to see supervisors roll in regularly at 11am with coffee in hand, head out for long lunches and then leave in the early afternoon. Allow your staff to see that you are working just as hard as they are. 
  10. Recognise the efforts of staff. Whether this is through an employee of the month program, an annual awards dinner or simply ongoing quiet acknowledgement of good performance, ensure that staff know they are appreciated. 

So, start this year the right way - make your workplace somewhere your staff want to be, instead of somewhere they have to be. And if you're having difficultly with a toxic workplace culture, WISE can help, through out investigation, mediation and governance services. 

How to Truly Relax Over the Summer Holidays

Vince Scopelliti - Wednesday, January 10, 2018

The Christmas tree is up, the fairy lights are lit, the bonbons are set on the table, the trifle is in the fridge - and you are sifting through your phone, replying to just one more email, tweaking just one more slide on the Powerpoint, making just one more phone call to a prospective client. Happy holidays, right? 

If this resembled your Christmas, you're not alone. Nearly 73% of Australians continue to work in some way while they are on leave. This figure is sure to continue rising, as thanks to email, text and social media, people are now contactable 24/7, no matter where they are in the world. 

So, a very modern question - is it possible to have a true break from work, relax fully, and not worry about what might be awaiting you when you return?

it's all about PREPARATION

The key is to organise things before you go away, so that you're in the right headspace to relax and revitalise. 

Top tips to prepare for your holiday break include:  

  • Plan ahead - prepare a list of issues that might come up while you are away and assign them to people who will be working. If necessary, arrange for the relevant people to have access to your emails or your mailbox so that important correspondence can be dealt with in your absence. 
  • Ensure that people you work with, and people you deal with externally, are aware that you are going on leave, and when you will be back. It also helps to give several weeks' notice that you will be away, so that you are not inundated with requests on your way out the door. 
  • Keep a few clear days before you head off on holidays to deal with last-minute issues and put out fires as necessary.
  • Organise yourself so that you have the items requiring your top attention ready to deal with as soon as you return. 

Once you walk out of the workplace, switch off!

Turn off the phone, turn off the emails, and don't check in - relax and enjoy your time off. In almost every case, things will keep going without you. 

Stuck at work?

Of course, not all of us get time off over the summer period. 

If you do have to work through, try to: 

  • Plan your days to maximise what you can achieve, while still allowing time to re-focus. Make sure you take a lunch break, or find some time to stretch your legs.
  • Keep a positive attitude towards having to be at work - someone will benefit from you being there to help!
  • Motivate yourself by planning a break or some time off as a reward after the busy summer holiday season, even if it is just time spent with family at home. 

managing your stress levels is also key to relaxing

While we're all very familiar with the term, what exactly is meant by "stress"? Stress sparks the fight or flight response, preparing the body for action against a potential threat. Adrenaline and cortisol are released, resulting in a speeding up of the heart rate, metabolism and breathing rate. 

Once, this fight or flight response might have kicked in with a mammoth chasing you across the tundra, but in the modern workplace, it's much more likely to result from your supervisor imposing a tight deadline, or dealing with an angry client or a hundred "urgent" emails! 

Stress is largely inevitable, whether you're dealing with issues at work or navigating long holiday queues at the airport. In many ways, it is an acceptable part of modern living - so long as it is managed correctly. 

The stress response can be helpful in the short-term, but long-term, it can have negative effects on your health. Stress can lead to a variety of conditions including fatigue, high blood pressure and depression. 

how mindfulness can help you deal with stress 

A recent buzzword in human resources and psychology, mindfulness is a useful technique for reducing stress. Mindfulness can help you manage your workload better, improve your concentration, increase relaxation and promote self-awareness. 

It involves reflection, prioritisation and listening, without distractions. It means being present in the moment, thinking only of the task at hand, and re-focusing on your work and its purpose. 

There are a number of mindfulness techniques you can try, including mediation, paying attention to your breathing and progressively relaxing your muscles. 

So whether you are working through or taking time off these holidays, make 2018 the year you return to the workplace relaxed and re-focused, and better able to manage stress! 

And if you'd like to get your 2018 off on the right start, we have training programs available to ensure your workplace investigation is as stress free as possible.  

2017: The Year Sexual Harassment Claimed the Public Spotlight

Vince Scopelliti - Wednesday, January 03, 2018

It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers. 

From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light. 

There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the 'year of the Weinstein' is that we don't forget some of the less obvious - but no less damaging - manifestations of sexual harassment in the workplace. 

The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example - a workplace might tacitly support that 'touchy feely' manager, or the 'jokey' worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised. 

Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.

Key definitions of sexual harassment

The Federal Sex Discrimination Act contains the following definition of sexual harassment: 

28A - Meaning of Sexual Harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engaged in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Importantly, 28A(1)(b) provides for the broader "unwelcome conduct of a sexual nature." 

Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as 'just mucking around' or 'a harmless Aussie joke' might in fact fall squarely within the meaning of sexual harassment. 

As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous 'reasonable person'. 

global reach - the #metoo campaign

We watched the tsunami of the '#metoo' campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. 

Both women and men have been subjected to unacceptable words and acts - often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour - as the matter of Kordas shows. 

Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.

THE extreme and the ugly...

As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood's Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation's 'gardening guru'. 

Yet it is arguable that such extreme cases do little to assist the public's understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017. 

The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are - sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge. 

risk of ignorance 

When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed. 

Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims - not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.

workplace vulnerabilities 

Workplaces where rank and hierarchy exist - such as emergency services and the armed forces - can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police [2017] NSWIRC 1001, the Commission noted that part of the problem with the senior constable's lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour. 

Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.

workplace sexual harassment policies crucial

The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment. 

Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours. 

The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities - reputation.

strong but subtle RESPONSES

2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace. 

Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.