Protecting Whistleblowers: Are You Ready for the Changes?

Vince Scopelliti - Wednesday, December 05, 2018

With new whistleblower protections to take effect in early 2019, it is essential that organisations understand the broad legislative changes to the Corporations Act 2001 due to be debated in Parliament. In addition to the requirement for formal mechanisms and strategies to protect and assist whistleblowers, both public and large private corporations will need to be able to 'spread the word' to staff in a practical way. 

Successfully embedding the changes to whistleblower protections into your organisation requires clear understanding, action and communication. With 2019 just around the corner, the time is right to ensure that you have all the information that you need to meet the new obligations.

WHat is the definition of a 'whistleblower'? 

Blowing a whistle has always been a common method for citizens to warn others of significant problems such as overcrowding, bad sportsmanship or dangerous waters. Whistleblowing has nevertheless developed some negative connotations in the corporate world. 

Despite the need to guard against corruption and corporate wrongdoing, corporations have in the past done little to actively protect those who speak up from being harmed. The new regime, due to be enacted in early 2019, includes compensation for any whistleblower who suffers statutorily-defined 'detriment'. 

No longer will the definition of whistle blower be restricted to current employees: past and present contractors, workers, suppliers, family members and many other stakeholders can rely upon the new protections.

who the changes apply to 

The proposed changes to the Corporations Act 2001 will effectively ensure that large employers provide the incentive, means and protection for individuals to blow the whistle when corporate wrongdoing is suspected. The changes formalise the legal protections that have been available in a relatively piecemeal manner across time. 

The new regime will mandate that all Australian public companies, large proprietary companies, and registerable superannuation entities will have compliant whistleblower policies in place by early 2019. Further, it will be necessary to demonstrate that stakeholders can safely and anonymously exercise their right to blow the whistle on corrupt practices. 

reach of the new bill

The demands on corporations flowing from the changes to whistleblower laws via the Treasury Laws Amendment (Enhancing Whistle-blower Protections) Bill 2017 can certainly seem daunting. As an example, the new Bill requires that corporations provide clear, comprehensive and anonymous pathways for any staff or stakeholders who wish to report suspected wrongdoing. 

This includes demonstrating that policies and procedures designed to promote and protect whistleblowing are accessible by all stakeholders. Further, access to an anonymous helpline is crucial to ensure that parties can talk freely about any suspicions of wrongdoing. 

The reach of the new Bill includes the ability to look at past corruption and in some cases to award damages to workers or others who have suffered detriment in the past as the result of blowing the whistle.

next steps? 

In the short time remaining between now and when the new whistleblower changes come into being, it is essential that all relevant organisations audit their current practices relevant to the new Bill. To assist our clients in understanding the proposed changes, we have published a white paper, which is available for free download. 

One core offering that we provide is our industry-leading Grapevine Confidential Whistleblower Hotline. Staffed 24 hours a day, 7 days a week, Grapevine provides employees with the opportunity to make anonymous complaints to trusted and experienced operators. 

WISE has provided Grapevine since 2016, and the hotline enhances the way our clients manage their business, but also allows them be legally compliant with the new regulations. January 2019 is fast approaching. If you would like any additional information or an obligation free proposal, contact WISE today! 

How to Prepare for a Difficult Conversation

Vince Scopelliti - Wednesday, November 28, 2018

Engaging in a difficult workplace conversation is one of those tasks that most managers and business owners would prefer to avoid. Yet the reality is that from time to time, workplace behaviour or performance will be below par and will need to be addressed. 

The key to conducting a challenging conversation at work that is both professional and productive lies in thorough preparation - the three W's of when, where, and what.

WHen is the best time to have the conversation?

Timing is everything when preparing to discuss a difficult issue. Ask yourself a deceptively simple question - why am I instigating this particular conversation right now? If the answer is that you are annoyed, aggravated or otherwise emotionally charged by an employee's behaviour or performance, then this can often be a bad time to attempt a challenging conversation. 

Difficult conversations that are planned and delivered in a calm and considered manner have a much greater chance of producing desired outcomes. Conversely, conversations that are started impulsively, out of anger or frustration can often lead to later accusations of abuse and unfairness. This is particularly so where no warnings or offers of support are given. 

Putting difficult conversations off indefinitely is not productive either. This may create the impression that the conduct is tolerated or accepted. So, ask yourself - is now the right time?

where should i hold the difficult conversation? 

Much like timing, you should carefully prepare the venue for these challenging work conversations. One golden rule is - not in front of a worker's colleagues. Entering a work station and immediately delivering difficult words can be seen as disrespectful or even as an abuse of power. 

In some workplaces, it might be best to email the worker and request that they come to your office or a designated neutral space. Depending upon the gravity of the topic of discussion, it might also be suggested that the worker bring along a support person. 

When you are anxious about the need to have a difficult conversation, you might prefer to just go for it on the spot and begin, but take a deep breath and ensure that the venue is appropriate.

what is the topic of the difficult conversation?

This again might seem like a question that has a simple answer. It might seem obvious to you that the problem is bad performance, bad behaviour - or both. Such general labels however can appear to be an attack on the person, with no real way for them to reply in a meaningful way. And broad admonitions to 'shape up or ship out' are not only unproductive performance guidance - they can be seen as real threats to a worker's employment and do not meet the requirements of reasonable management action. 

Try to have a basic agenda prepared and distil the 'what' of the discussion into two or three clear and succinct points. 

For example, the conversation might cover a tangible issue such as the three late starts since last Thursday; the 30% dip in sales since June; the four separate reports of disrespectful behaviour in the workplace. Specificity assists in driving a conversation that is fair, transparent and likely to deliver a sustainable outcome. 

Choose words which are neutral and not emotionally laden. Avoid descriptive words such as appalling, dreadful, bad or shocking. Try to be rational, measured and neutral in your language and approach. If you are able to deliver a clear and rational statement of what the employee has failed to do or what they have done wrong and invited a response, you are well on your way to having an open discussion and finding a resolution. 

And lastly - listen! A conversation, by definition, involves two or more people. Don't be tainted by pre-judgement.

DIFFICULT CONVERSATIONS AS PART OF THE PERFORMANCE MANAGEMENT PROCESS 

Humans avoid conflict. We are community-based creatures and prefer to have things just tick along nicely. Yet these difficult conversations are important, having the overall goal of improving performance, getting to the bottom of troubling issues and smoothing the rougher edges of behaviour. 

Acting in anger is inadvisable, as are publicly-heard conversations and sweeping accusations. Clear guidelines for such communication should be set out in the organisation's policies and procedures, with training and resources available to assist. 

Should your difficult conversation form part of a performance management process, make sure that you are adhering to your organisations' relevant policies and procedures. This may include drafting a performance improvement plan if informal performance counselling is not effective. 

Without these structures, organisations are left open to complaints of unfairness or a failure to take reasonable management action. 

Expert help in getting it right

The reality is that difficult conversations are inevitable in the workplace, and it is important that they are conducted well. At WISE, we specialise in the management of workplace behaviour. We can investigate matters of misconduct, resolve conflict through mediation and provide consultation services for effective people governance. Call us at any time to discuss your requirements.  

22 Types of Workplace Bullying Behaviour

Vince Scopelliti - Wednesday, November 21, 2018

Bullying is the scourge of many workplaces. There are few things which destroy office morale, tear apart team cohesion or cause good staff to leave as quickly as victimisation and harassment in the workplace. Interestingly, research has identified 22 different types of bullying conduct which might be encountered in the average workplace. 

We outline these different types of bullying and provide tips on how to avoid situations that cause this type of conflict in the workplace. 

What is the legal definition of bullying?

According to Fair Work Australia, a person is bullied in the workplace if they are repeatedly subjected to unreasonable behaviour by another person or group of people, or if that behaviour creates a risk to the health and safety of the bullied employee. 

Bullying includes teasing, exclusion and unreasonable work demands, but does not include reasonable disciplinary action or control of workflow. 

types of bullying behaviour

Research conducted by the University of Wollongong into 500 Australian employees over a 12-month period identifies the following different types of bullying behaviour: 

  • Withholding information (relevant to a person's employment or role)
  • Humiliation and ridicule
  • Tasking a person with work that is below their level of competence
  • Removing responsibility from a person who has earned it
  • Spreading gossip or rumours 
  • Ignoring or excluding a worker
  • Making personal insults
  • Shouting at or otherwise berating a person
  • Intimidating behaviour
  • Providing hints or signals that a person should resign or abandon their job
  • Reminding a worker constantly of errors or mistakes they have previously made
  • Persistently criticising an employee
  • Ignoring a worker hostile behaviour towards a worker
  • Ignoring a worker's opinion
  • Playing practical jokes or pranks
  • Imposing unreasonable deadlines
  • Making unfounded allegations
  • Excessively monitoring an employee's work
  • Putting pressure on an employee not to claim entitlements such as annual leave, personal leave or carer's leave
  • Teasing an employee
  • Imposing unreasonable workloads
  • Making threats of violence or engaging in actual abuse

These types of conduct, if repeated, generally present themselves in categories of limited indirect bullying, task-related bullying, or occasional bullying, or frequent bullying. Regardless of the cause, bullying results in increased absenteeism as a result of physical and mental health consequences on the worker who is affected. 

The risks of bullying

Apart from the obvious risks of employees resigning or taking extended periods of leave due to bullying, employers should also be aware of the potential for presenteeism - where staff turn up but are too affected by the bullying to effectively perform their work. 

Should employers fail to deal with bullying behaviour, they may be in non-compliance with their duty of care and their obligation to provide a safe and healthy workplace.

What can employers do? 

It is essential for employers to set clear boundaries on what sort of behaviour is and is not acceptable in the workplace. The most effective way to do this is to create clear and direct policies which are well publicised to all staff, ensuring awareness. 

Staff should also be trained in dealing with subtle acts of bullying, which could over time escalate into more serious types of bullying. 

Employers can best combat bullying by fostering a positive workplace culture as a whole, and encouraging strong leadership and communication. This includes giving staff sufficient resources to do their jobs effectively, providing positive feedback and resisting the urge to micromanage. 

WISE Workplace is against workplace bullying and provides training for employers on how to investigate allegations of bullying in the workplace. If your organisation wants to create a workplace environment that is free from discrimination, harassment and misconduct, contact us today! 

Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Overcoming Unconscious Bias

Vince Scopelliti - Wednesday, November 07, 2018

When conducting investigations or otherwise making determinations in the workplace, it is essential to avoid bias, whether conscious or unconscious. It is equally important to avoid a situation where co-workers believe decisions made in the workplace are biased - whether real or perceived.

What is unconscious bias? 

Unconscious bias may take a number of different forms, including:

  • Preferring or tending to support people who are similar to us (for example, people who attended the same high school, or who share the same ethnic background or sexual preference)
  • 'The beer test', also known as the 'in group' versus the 'out group' - having a bias in favour of people you would enjoy spending time with yourself.
  • The halo effect - where a specific characteristic or attribute of a person dominates impressions formed about that person. For example, if somebody is physically attractive this may increase their inherent like-ability, without merit. 
  • Confirmation bias - effectively, making judgements which support existing, previously held beliefs. 

For investigators, objectivity and drawing reasonable and unbiased conclusions is an essential component of a fair investigation. This doesn't alter the fact that everybody has unconscious biases. In order to remain neutral, investigators should take careful stock of what those biases may be for them specifically and ensure that they do not allow bias to influence their analysis of a party's credibility or their ultimate conclusions.

the effects of bias 

From an investigator's perspective, a failure to be objective may mean that they have subconsciously drawn premature conclusions about the outcome of the investigation. 

A common example involves a situation where a senior executive has been accused of serious wrongdoing, and the investigator understands that the removal or significant disciplining of the executive is likely to result in immediate negative effects for the business. 

Against that background, the investigator may be more likely to conduct the investigation in such a way that it justifies a decision which has already been made - namely that the executive will not be terminated or otherwise harshly disciplined. 

It is incumbent on impartial investigators to seek to uncover all facts that will help them determine the credibility of the parties involved, and assist in reaching a fair conclusion. It is equally important for investigators to remember that all evidence (however unpalatable) uncovered during an investigation must be taken into account in making a final determination, regardless of whether the information supports or contradicts the allegations. 

what is best practice?

Forming an inherent bias is a completely natural human response. It is important to ensure, however, that it does not lead or alter the outcome of an investigation. To this end, strategies for preventing inherent bias include:

  • Scheduling 'interrupters' - these are regular pauses in the process which are designed to force a decision-maker to step back and take an overview of how they have progressed with the investigation, as well as consciously consider whether they are being influenced by bias or not. 
  • Ensuring that the investigator's approach is as transparent as possible, and ideally an investigator should not be required to investigate people with whom they have ties. 

what can employers do?

Employers need to facilitate open and honest communication about the potential of bias affecting a decision-making process. This includes ensuring that all staff who are likely to conduct investigations or make sensitive decisions are aware of the potential impacts of bias, and take steps to avoid it. 

Another important stratagem is to ensure that investigators are not required to conduct investigations involving those with whom they have a prior relationship, to avoid any perception of bias. 

Investigations are an important tool for companies dealing with breaches of policy misconduct. If an employee views a process as fair and unbiased they will be more likely to report concerns. If you think there is an issue in your workplace and are concerned about potential or perceived bias, WISE can conduct independent and unbiased investigations. Contact us today for an obligation-free cost estimate.  

Why Employers Can't Afford to Ignore Procedural Fairness

Vince Scopelliti - Wednesday, August 01, 2018

It is important for employers to keep procedural fairness top of mind when conducting workplace investigations or taking disciplinary action.

Failing to do so can result in terminations being deemed unfair, as the recent Fair Work Commission decision of Nicholas Jarmain v Linfox Armaguard Pty Ltd [2018] FWC 3255 (14 June 2018) shows. 

background of the case 

Linfox Armaguard dismissed casual employee Nicholas Jarmain in October 2017 for serious misconduct. While the Fair Work Commission found the termination was justified, it determined that Mr Jarmain had been unfairly dismissed due to insufficient procedural fairness.

Mr Jarmain was dismissed after a client complained that he was "overly engaged in interaction and discussion" and generally inappropriate with staff members and customers of the client.

In response to the allegations, Mr Jarmain was asked to undergo an interview with a security officer and a union support person present. Explanations for his behaviour were sought (and his answers recorded) during the interview, and Mr Jarmain was then suspended from duty.

At a meeting three weeks later, Mr Jarmain was given further opportunity to explain the circumstances giving rise to the complaints against him. However, as his preferred union delegate was injured and unable to attend, the employer substituted their own preferred union official for that meeting.

The employer terminated Mr Jarmain's casual employment the next day, citing wilful and deliberate breaches of safety and security procedures. 

Breaches of procedural fairness

In the interest of procedural fairness, Mr Jarmain's employer should have advised him what claims were being investigated before asking him to participate in a recorded interview.

This was considered to be particularly egregious given that the employer is a big company with sufficient access to HR professionals. HR could (and indeed should) have been relied upon to ensure that Mr Jarmain was afforded procedural fairness when facing disciplinary action.

While the employer's reasons for dismissing Mr Jarmain were "sound, defensible and well-founded", especially given the job involves loaded weapons, the Commission concluded that the flaws in procedure, such as failing to provide any formal warnings or reprimands, were significant. 

The Commission determined that Mr Jarmain had not been given sufficient notification of the circumstances surrounding the complaints against him, or indeed the events giving rise to the complaints - and that he had effectively been ambushed, without sufficient information to defend himself against the claims. 

This meant that both Mr Jarmain's interview and ultimate dismissal were contrary to the requirements of procedural fairness.

Additional failures included the employer selecting the support person assisting Mr Jarmain in the second interview (as opposed to permitting the employee to pick his support person). By making such a decision it was akin to removing Mr Jarmain's right to have a support person present at all.

Further, the employer should not have suspended Mr Jarmain without pay.

the final decision

Ultimately, given the nature of the industry in which Mr Jarmain was employed, Commissioner Cambridge declined to order reinstatement of the employment but ordered compensation payments to the tune of $8,592.

This case demonstrates that having a valid reason to dismiss is only one factor that is considered in unfair dismissal claims. The Commission will not hesitate to award judgments in favour of the applicant where the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair, WISE provides full and supported investigation services, as well as training.  

Counter Allegations - Who Did What When?

Vince Scopelliti - Wednesday, June 20, 2018

Experienced workplace investigators are well aware that when two or more people are in dispute, there will inevitably be differing perspectives on what 'the truth' might look like. Contentious workplace issues can often play out in a 'he said, she said' fashion, with one allegation being closely followed up by a second person's counter-allegation. Such complications should be dealt with in a fair, considered and methodical way.

Separate allegations made by opposing parties will ideally be dealt with in discrete stages by workplace investigators, with each being handled in accordance with its individual merits. And as evidence comes to light regarding one or more of the competing allegations, investigators should aim to assess and weigh each piece of information with utmost care and objectivity.

When two tribes go to war 

When a counter-allegation is initially made, it is important not to jump to conclusions regarding this development. It does not necessarily mean that the first complainant was misrepresenting events or indeed that the second complainant is somehow defensive, guilty or panicky. It is possible that both the original and the counter complaints are valid.

Let's take an example: perhaps she took his stapler and he wiped her hard-drive. Two complete denials on the same issue can require the workplace investigator to look more closely at the milieu of the counter-allegations. For instance, if two workers in a scuffle both identically calm that "I did nothing - she pushed me", an astute investigator will know that a pointed and methodical approach to the counter-allegations is certainly called for.

In each of these scenarios, both allegations should be investigated and dealt with separately. It can be tempting to create one big file entitled 'Stapler/hard-drive fiasco' or 'Smith and Jones stoush'. Yet clear delineations between people, events and timing will ensure that impartiality and clarity are maintained for the duration of the investigation and that the validity of each complaint is tested.

Seen and unseen allegationS

Very occasionally a workplace investigation involving counter-allegations will be easily settled. For example, the employee might not have been at work on the day that she allegedly stole the stapler - a simple mistake, evidenced by the work roster and now the complaint file can (on that issue at least) be finalised.

If only things were so simple... In most workplace situations, the investigator will need to step carefully through complex evidence attached to each allegation. Some events might be directly witnessed in a cut and dried way; Brown was in the kitchen with Smith and Jones on 7 December 2017 and can confidently say she saw Smith push Jones, who then walked away. Yet in many cases there are no witnesses to wrongdoing in the workplace and the 'he did/she did' scenario must be dealt with. 

Further clarification in many forms becomes the best way to methodically tease out the knots of knowledge. This might take the form of documentary evidence, circumstantial evidence such as presence at a meeting that day, or a contemporaneous report such as an OH&S report involving counter-complainants. A tidy pattern of good circumstantial evidence can at times provide the clarity needed in the face of vehement counter-allegations. The workplace investigator must carefully assess the quality, reliability and utility of such material, being sure not to make assumptions and/or factual errors along the way.

Hearsay - treading lightly on complex terrain

As with all areas of law and investigations, hearsay evidence can provide helpful insights in situations where nothing more concrete is available. Hearsay is generally words or things observed by an individual who was not directly present when an event occurred. In other words, it is a type of indirect evidence. A simple idea, but surprisingly difficult to manoeuvre successfully during investigations.

Great care is needed in these situations, as hearsay evidence is notorious for causing problems later in post-investigation proceedings. Employees may go home and talk openly to their spouse about distressing events. Or they stomp back to their desks, muttering to a colleague about 'the stapler thief'. Yet the spouse or the colleague cannot tell us much about what actually happened. They are a friendly ear - after the alleged event.

Such indirect evidence can be the least helpful in many cases. However, experienced investigators will know how to gather and utilise such material when more direct evidence is difficult to obtain.

Workplace allegations and motivations

It is not unheard of that rather ulterior motives can exist in a workplace allegation. When stories are not gelling, it is natural for the workplace investigator to think - what am I missing? Why would this person make this up? It is important to consider the possibility that rivalries, emotional issues and/or collusion might unfortunately form part of the mix that has motivated an internal complaint. While it does not pay to assume such a phenomenon, investigators should be aware that such dynamics can and do arise in the workplace.

In workplace investigations, we find that it is never simple. If you have an investigation that has 'blown' out, or you are reviewing cross and counter complaints and could use some professional assistance, then contact WISE today.

Managing Complaints - How To Find The Positive

Vince Scopelliti - Wednesday, June 13, 2018

When an employee complaint alleging workplace discrimination or harassment is lodged, it is usually seen as a negative moment in the life of the organisation.

However, it is possible for an employer to view this as a positive phenomenon, rather than a sign of complete failure. This is because well-handled complaints can illuminate hidden corporate weaknesses, as well as any lurking issues affecting staff morale or motivation. Such information can become a valuable catalyst for positive change across the broader business - a win-win for internal and external stakeholders alike.

Best-practice in complaints handling is dependent upon a structured complaints process that includes two key ingredients: the quality of investigation process and the structure of the complaints process itself.

1. A thorough high-quality workplace investigation is an essential tool in the management of internal complaints, including allegations of discrimination and harassment.

2. The structural framework of internal complaints policies and procedures will necessarily be clear, accessible and well-publicised. A well-managed complaint can be a good news story not only for the people involved, but for the broader success of the business.

INVESTIGATING DISCRIMINATION AND HARASSMENT 

When an employee complains that they have been the subject of discrimination or harassment, it is highly likely that there will be differing opinions and perspectives as to whether or not this is actually the case.

As a result, best-practice workplace investigation requires fair, open and even-handed treatment of all who are involved in the investigative process. Further, it is important for investigators to move at a reasonable and logical pace, first making preliminary enquiries before deciding on any next steps.

But what does a good investigation mean on the ground? One key concept is procedural fairness. This means that parties involved are equally able to access the process, to be heard in a substantive way and to be given a fair opportunity to understand and respond adequately to any claims made against them. Under procedural fairness parties have the right to an impartial decision-maker and to having a support person present during their interview. Professional investigators must be seen to be unbiased in every phase of the workplace investigation.

Added to this, a high-quality workplace investigation will ensure that all relevant and reliable evidence has been carefully obtained, anaylsed and included appropriately in the final report. There can be no room for short cuts or preferential treatment in workplace investigations.       

Robust complaints policies and procedures

Employers, investigators, complainants and witnesses alike should ideally all have access to a durable set of internal policies and procedures covering common areas of complaint.

A strong policy document detailing how and to whom to make a complaint should be accessible, user-friendly and up-to-date. The policy should also direct the reader to one or more procedures that need to be followed in the event that an alleged instance of harassment or discrimination has occurred. This is often a time of great stress, and instructions to complainants should be clear and helpful.

Internal policies and procedures that are complicated, badly written or tucked away in a dusty filing cabinet are of little-to-no assistance to the individual seeking to make a complaint.

This is why good investigations and good complaints policies go hand-in-hand: even the best investigator will struggle to keep things fair if complaints policies are convoluted or absent, or if procedures leading up to the investigation are sub-optimal.

Perhaps most importantly, managers and employees should be trained in practically accessing and using these documents, at all stages being assured that complaints are taken seriously and are indeed welcomed by the organisation.

Step by step pathways

A sound complaints process begins with employees first being made aware of a useable and fair pathway for their grievance. A good internal complaints system will work step-by-step through a logical process. This means initially providing clear and succinct information on the nature of common complaints, some definitions where appropriate, the bigger picture of the complaints process and - perhaps most importantly - who to speak with in the first instance about the particular concern.

An internal complaint is a golden opportunity for employers to gain important information about people and workplaces. For this reason, the internal complaints system should be presented in a simple, cordial and helpful format.

Problems arise every day that require the existence of an effective complaints and investigations pathway. Thankfully many complaints can be quickly and easily resolved. However, if you need to undertake investigations or a review of your HR policies, and want to ensure you are conducting it with best practice, our training is developed by investigators for investigators. Contact WISE today to find out more.

How to Deal with Bullying in Hospital Environments

Vince Scopelliti - Wednesday, June 06, 2018

Hospitals - very few people like them, yet many of us will be a resident at one time or another. Even though hospitals can be sources of great joy, places where babies are born, miracles happen and lives are saved, they also represent sickness, injury, death, and some pretty ordinary food! 

The people who work in them - the doctors, surgeons, nurses, aides, assistants, administrators and catering staff - perform difficult work in an extremely stressful environment. Imagine the potential consequences when the added stressor of workplace bullying is added to the mix.

Factors which facilitate bullying in this environment 

Hospitals and the healthcare sector remain a particularly hierarchical environment - carers need to get sign-off from nurses before passing out certain medications, nurses confirm recommended treatments with doctors, doctors and surgeons rely on their own pecking order. 

This hierarchy, and the importance of culture and following rules, automatically puts certain workers in a subordinate position relative to others.

Lateral violence, verbal, physical and psychological bullying among peers, can also be an issue in the health services. 

Combined with the stress of having to deal with time-critical emergencies, becoming involved in physically and mentally straining situations and dealing with the trauma of patients suffering, hospitals are the perfect breeding ground for hostility, anger and frustration.

Prevalence of bullying

Bullying in the healthcare sector is an under-recognised but pervasive problem. Hospitals often have scant or limited resources and staff are under significant pressure, which may contribute to the prevalence of workplace bullying.

The Australasian College for Emergency Medicine surveyed its members in 2017 and found 34% had experienced bullying, 16.1% had experienced harassment and just over six percent had been victims of sexual harassment. A landmark 2015 report commissioned by the Royal Australasian College of Surgeons showed that almost half of all surgeons had experienced bullying, discrimination or sexual harassment. 

The Victorian Auditor General Office, in its 2016 report to the Victorian Parliament, 'Bullying and Harassment in the Health Sector', stated 

"The Health Sector is unable to demonstrate that it has effective controls in place to prevent or reduce inappropriate behaviour, including bullying and harassment. Key controls that would effectively reduce this risk to employee health and safety are either inadequately implemented, missing or poorly coordinated." 

However, by its very nature, bullying in this type of workplace can be particularly difficult to detect and manage. 

Consequences of bullying

The potential consequences of bullying are significant. In addition to litigation arising from the bullying and costs associated with worker's compensation or other payouts, a number of issues can arise. These include:

  • High turnover amongst dissatisfied staff
  • Presenteeism - where staff turn up at work, but are unhappy or stressed and perform inadequately, which is particularly dangerous in a hospital environment. 
  • Increased absenteeism
  • A poorly functioning team environment that can adversely affect staff and patients.      

are there solutions to bullying in high-stress environments?  

Key strategies to help solve the problem include:

  • A focus on workplace culture, including by conducting regular cultural audits. 
  • Encouraging a 'mentor' or 'buddy' system (in consultation with unions where appropriate), or otherwise provide a supportive environment whereby staff are encouraged to vent or ask for assistance with any matters they are struggling with. 
  • Facilitating easy access for staff to obtain confidential counselling, or advice services. 
  • Fostering an environment where staff feel comfortable raising concerns and complaints with their peers and management.
  • Having clear zero tolerance policies regarding workplace bullying and harassment, which are easily accessible to all staff
  • Ensure that this zero tolerance policy, is demonstrated by senior management, so there is a top down recognition of adherence to the policy from all staff. 
  • Staff need to be regularly reminded of the consequences of any poor behaviour in the workplace and this should be reinforced during staff meetings.  

Bullying or harassment - in any workplace - is simply unacceptable. Many incidents of bullying or harassment may be unreported for fear of reprisals. All staff should be encouraged to report any incident. 

If your organisation needs any assistance in this area please contact WISE to arrange a no-obligation appointment or otherwise contact us to discuss how we may assist you. Our services include investigation, training, provision of a whistleblower facility (which can be tailored to suit your reporting needs), and review of policies

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHy are workplace investigations necessary?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

what does an investigation involve?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

so, who should investigate?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

Should an external or internal investigator be appointed?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

Risks of an investigation being conducted incorrectly

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

Lesson for employers

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.