When to Suspend an Employee During an Investigation

Vince Scopelliti - Wednesday, February 20, 2019

One of the most difficult aspects of a workplace investigation is the moment when the investigator or employer realises the immediate suspension of an employee is required. 

We examine the warning signs that a suspension might be necessary, as well as the best way to handle this complex eventuality.

The what and why of suspension

Most investigations will follow a relatively regular pattern. The workplace investigator gathers information, a report is submitted and disciplinary action may or may not be taken by the employer. However, occasionally events can arise, requiring that an employee be suspended immediately before or during the investigation. Two questions arise - when and how should suspensions occur?

Suspension involves a compulsory period of absence from the workplace for the employee in question. Suspension will include full pay and any other entitlements accruing to the employee. This is in contrast to an employee being 'stood down' - where the employer has no further work available and payment is not required.

gauging the necessity of suspension 

So when is it warranted to suspend an employee during the course of a workplace investigation? Of course employers must do their best to prevent a workplace difficultly from snowballing in the first place. Preventative measures and policies will hopefully reduce the likelihood of misconduct occurring. 

Yet at times, a suspension becomes necessary before or during the course of an investigation. The types of serious misconduct that can require suspension include suspected fraud, assault or theft. A suspension will also be necessary if there is a serious possibility that the employee might tamper with evidence, or disrupt the investigative process. 

A 'suspicion' of misconduct cannot be a mere whispered rumour or gut feel. In essence, a prima facie case (a reasonable assumption on available evidence) should exist to demonstrate that the employee in question has in all likelihood engaged in a serious act of misconduct. 

The rules of procedural fairness dictate that the investigation be even-handed and impartial throughout - with no recommendations of any kind being made by an investigator until the compilation and presentation of the investigative report. 

However, sometimes allegations are particularly serious and time is of the essence. A risk assessment is required, as well as communication between the investigator and the employer regarding their immediately concerns.

is a suspension a 'legal and reasonable' direction?

In the case of Avenia v Railway Transport and Health Fund [2017], the Federal Court held that employers can issue 'legal and reasonable directions' to staff, with such directions including suspensions. Dr Avenia was the subject of an investigation into allegations of misconduct and was suspended on full pay, pending the investigation. 

The court found that this action by the employer was legal and reasonable due to the nature of the allegations and did not constitute, as Dr Avenia claimed, a case of unlawful termination.

balancing considerations

Suspension during a workplace investigation can certainly create unique challenges. The suspended party might become quite uncooperative and other staff might make assumptions about this person while providing evidence. A clear description of the suspension process must be provided within the investigative report, and a communication strategy put in place by the employer. 

Procedural fairness is the centrepiece of workplace investigations. However, employee welfare, health and safety are also essential considerations. Thorough documentation should be kept of any suspensions, with workplace investigators taking detailed evidence from the employer and others regarding this complex situation.

If an employee engages in misconduct and the employer suspends them before the disciplinary investigation, a fair procedure must be followed. If you need assistance on how to investigate and/or how to respond to inappropriate workplace behaviour, contact WISE today!

Why Counter Allegations Must Be Investigated

Vince Scopelliti - Wednesday, February 06, 2019

In the usual course of workplace investigations, it is often one person's word against another's. This is particularly the case when a serious allegation such as sexual misconduct has been made, and there are unlikely to be any witnesses to the event. 

When a serious allegation has been made, often the 'accused' then makes their own claims against the accuser, resulting in cross and counter-allegations.

the difficulty this causes for investigators

Occasionally, counter allegations are made immediately after the investigation is made known to the respondent, and this can make it more difficult for even the most experienced investigator to determine the true course of events leading up to that point. Counter-allegations also sometimes surface once an investigation is already in progress, making it harder for investigators to discern whether they are legitimate or simply made with the objective of revenge. 

The most important thing is that each allegation should be investigated independently. 

the danger of not investigating counter complaints 

A recent decision of the Fair Work Commission demonstrates the importance of ensuring that all allegations are thoroughly and independently investigated, regardless of the circumstances in which they are made. 

In the decision of Watts v Ramsay Health Care it was determined that an employer's failure to investigate complaints of bullying was in itself a form of bullying. 

In these circumstances, Ms Watts repeatedly advised her employer that she was feeling harassed and bullied by her peers, including her co-workers making accusations of Ms Watts smoking cigarettes past her allocated break, smelling of alcohol and failing to perform her duties adequately. 

Ms Watts raised those concerns in the context of a formal investigation by her employers into her own conduct. 

However, her employers failed to investigate Ms Watts' counter complaints on the basis that there was insufficient information and evidence to support Ms Watts' allegations, against a background where she did not name the offenders. 

The Fair Work Commission ultimately determined the failure to investigate the bullying investigations was an inappropriate and unreasonable management decision, and a breach of the employer's own discrimination, bullying and harassment policy.

what are the key lessons?

Perhaps the most important aspect of undertaking fair workplace investigations is ensuring that internal policies are followed, in particular focusing on:

  • Determining and implementing the threshold requirement for commencing an investigation, for instance requiring a formal written complaint before management action can be taken;
  • Being flexible in interpreting the information provided and not imposing arbitrary minimum standards, for instance requiring direct evidence of wrongdoing;
  • Taking into account the context surrounding the making of the allegations. 

 Employers and management should also ensure that they do not make early judgments or allow themselves to be biased in the context in which the allegations are made. In the case of Ms Watts, for example, her employers appear to have judged her allegations on the basis that they were made during the course of her own performance management process. 

It can be challenging for investigators when presented with counter-allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, or formal qualifications such as Certificate IV and Diploma in Government Investigations.

Addressing Post-Investigation Workplace Culture

Vince Scopelliti - Wednesday, January 23, 2019

Workplace investigations may cause disruption and even animosity in the workplace. An incident occurred and a workplace investigator must attempt to get to the heart of the problem. Once the investigation is over, there will inevitably be fallout in the workplace, which any employer would be well advised to address actively. 

We examine the pitfalls facing managers after a workplace investigation, and the best methods for getting the organisation on track once again.

dealing with the fallout

It is unfortunate that in the aftermath of a workplace investigation, some tension and negative emotions will almost certainly remain. Staff might be left stressed about the findings of the investigation itself and/or the possible ramifications into the future. Yet on the plus side, a workplace investigation has the potential to generate excellent learnings - and to guide the organisation to a fresh start and positive future. 

It is important that managers resist the temptation to 'let sleeping dogs lie' at the conclusion of the investigation. An outcome has been obtained, but how can the lessons learnt be put into practice, relationships repaired and morale improved?

learning from the investigation

Regardless of how discreet a workplace investigator might be, rumours related to the investigation can run riot both during and after the fact. Damage to workplace relationships is a distinct possibility in this environment. 

For example - learning that allegations have been substantiated against a colleague can lead to dismay, disbelief or even counter-attacks against the suspected informant. Management must face the post-investigation issues and ensure that communication with staff is as comprehensive and transparent as possible. 

And even after explanations are provided, a negative workplace culture can linger and should be addressed on an ongoing basis. Regular team meetings, one-on-ones and whole-group discussions should be open and encouraging. The best way to dispel a negative workplace culture is to candidly shine a light on post-investigation issues as and when they arise.

addressing policy shortcomings 

It is important to ensure that issues are not simply aired: policy shortcomings must also be clearly identified and a plan of action put in place. This can have two benefits. Firstly, a plan that reflects the input of staff will foster confidence that grievances have actually been heard and considered by management. And even if not all aspects of the plan are desired by employees, there is at least some certainty about what the future holds. 

communicating with staff

An important aspect of communicating post-investigation is to redefine expectations. For example, if the investigation uncovers inappropriate behaviours that have developed across time, management needs to redefine and effectively explain what the 'new normal' looks like in this area. Where policy shortfalls are found, it is important that management acknowledges this and explains clearly how new behavioural expectations and standards will be put in place. 

Addressing staff concerns and providing support where needed is crucial in the aftermath of a workplace investigation. Don't bury your head in bureaucracy - take action! Let staff know that you are aware of the impacts of the investigation, and that their input matters. As the dust settles, feedback processes should be ongoing, and include staff wherever appropriate. This will be an important time for rebuilding work relationships.

leading an organisation into a positive culture future

In the aftermath of a challenging workplace investigation the future can feel somewhat uncertain. The process may have been unsettling and it is possible that colleagues have been on either side of accusations and recriminations. 

In order to lead the organisation into a positive-culture future, managers should be candid about the past but also hopeful about the organisation's potential. When carried out effectively, workplace investigations can sweep out undesirable cultural elements and provide a fresh start for policies, procedures, ways of working and overall workplace relationships. Leaders need to focus on this capability, and reiterate to staff the positives for the organisation into the future. 

Redefining workplace culture following an investigation can be a challenge. For strategies and advice to help your organisation re-establish strong workplace culture, contact WISE.

Whistleblower Changes - Getting Your Policies Right

Vince Scopelliti - Wednesday, January 16, 2019

With the new changes to whistleblower legislation soon to be debated and enacted, it's essential to assess whether or not your business is compliant. An important part of ensuring compliance with the changes lies in the development of robust policies to protect whistleblowers. The Human Resources function has a central role in preparing staff for the new approach to whistleblowing in the workplace. 

We examine best-practice policy development for the support of whistleblowers in the workplace, including compliance hazards to watch out for as the new legislation takes effect. 

recapping the changes

We have previously examined the architecture of the new regime, due to be enacted in early 2019. The proposed changes to legislation emphasise the need to not only protect workplace whistleblowers when they speak up, but to penalise organisations that fail to provide protection from harm. As part of these new requirements, whistleblower policies must be current, workable and robust. Tokenist policies and procedures that fail to effectively protect whistleblowers are no longer acceptable. 

how can hr guide the process

The most important focus for Human Resources departments will be the development and maintenance of a whistleblower-friendly culture: This is a good news story, the government has recognised the importance of whistleblowers in the fight against corporate wrongdoing and has acted in a positive way to encourage and support this practice. 

In developing quality training, in-house publicity, policies and procedures, HR needs to ensure that they guide staff and management towards a more supportive and knowledgeable stance in relation to whistleblower protections. 

best-practice in policy design - are you compliant? 

In view of the legislative changes due to be delivered, organisations are clearly required to 'get their house in order' when it comes to the development and maintenance of appropriate policy instruments. It is not sufficient for example to have policies that merely provide lip service to the ideal of whistleblower protections. 

There must be clear and user-friendly mechanisms for anonymous reporting and disclosure - even if there is a mere suspicion of corruption, graft, fraud or other foul play in the organisation. 

Importantly, it is no longer necessary to approach a direct supervisor to report an issue - the new legislation reflects a growing understanding that ostracism and discrimination can and does occur if a whistleblower is limited in terms of reporting mechanisms. 

Now is the time to examine your organisation's policies around whistleblower protection, to establish if they comply with the widened scope of the new legislation.

compliance hazards to watch out for

In developing the mechanisms to protect whistleblowers, there are a number of potential pitfalls to be aware of. Firstly, organisations can be liable if they fail to prevent harm to a whistleblower as a result of workplace reprisal. Reporting structures must be watertight in terms of anonymity and discretion. The smallest leak can lead to significant emotional and career harm for those brave enough to blow the whistle. 

A second related hazard is policies that are too general to be of any real use to potential whistleblowers. Policy documents should clearly and distinctly answer the 'what, how, who, when' of whistleblowing; when time is of the essence, it is important that staff can act immediately with their concerns. Further, whistleblower policies and training should explain clearly to all staff the repercussions for any harm caused to a whistleblower due to their disclosure. The key is a strong culture, where encouragement and protection of whistleblowers is a core element of business-as-usual.

how WISE's grapevine hotline can help

WISE is well versed in the changes of the whistleblowing legislation, and has recently published a whitepaper that can help answer all your questions regarding these changes. In addition, we have a whistleblower hotline, known as Grapevine, which has been running since 2016. The service is entirely professional and anonymous, and available 24/7 to concerned whistleblowers.

If you would like to know more or would like a cost estimate to implement our confidential hotline in your workplace, contact WISE now. By including the Grapevine Whistleblower Service in your whistleblower policy framework, your organisation can go a long way to fulfilling its requirements under the new legislation.

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.