The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.

Making Findings in Workplace Investigations

Vince Scopelliti - Wednesday, August 07, 2019

When a workplace investigation is coming to an end, one task can seem deceptively simple - making findings. 

It might seem that because all the information is now available, the investigator can surely just state 'the obvious' in their report. Yet as with most tasks in the investigative process, quality outcomes require much greater consideration of relevant material. Before findings can be made, a thorough analysis of the evidence needs to occur. Findings will need to link clearly with this analysis - and all evidence must be considered.

Issues around organisational policies, plus the correct weight to be given to particular pieces of evidence, are further pieces in the puzzle of investigative findings that need to be addressed.  

analysing the evidence 

Workplace investigators are required to carefully and objectively analyse all available evidence. This includes the evidence that both supports and rebuts a likely finding. For example, if three workers said that it happened but one states that they are not sure, all four pieces of evidence must be analysed and discussed with equal consideration.

It is certainly unacceptable to simply discard a piece of evidence because it does not fit with the majority. As well as not being transparent, experienced investigators know that a small piece of contrary evidence might actually support a bigger finding at another point of the process. 

The analysis of all evidence will also incorporate the consideration of the weight to be attributed to each piece of evidence. This requires an investigator to consider for example the probative weight and value attributed to direct evidence in comparison to hearsay evidence. 

Findings need to be clear and defensible; links from evidence, to analysis, to findings and back again must be logical and well-explained. Essentially, the investigator is asking whether or not the evidence supports, on the balance of probabilities, the findings that are eventually made.  

following the organisation's policies  

As part of making accurate and defensible findings, investigators need to consider and understand the organisation's policies. Logically, in order to make a finding whether or not inappropriate behaviour has occurred, the first step will be an examination of the policy documents. 

Has the conduct in question as alleged breached a policy - and were the policies and procedures clearly understood by all concerned? General state and commonwealth laws will of course also play a part in findings, and in combination with organisational policies, will assist the investigator to mark the perimeters of acceptable behaviour.

weighing the evidence

Making findings can sometimes feel like the completion of a rather large jigsaw puzzle. Evidence is examined and analysed, with pieces being compared to one another for similarities and differences. Investigators need to consider the relevance of each piece of evidence to the allegations and overall investigation, giving more or less weight to some pieces of evidence over others for any number of reasons. 

Sometimes more weight will be given to a piece of evidence because it is for example, clearer, more compelling or better corroborated than other evidence.

remember briginshaw 

The care with which evidence is examined and weighed can have significant consequences for any potential future proceedings.

For serious allegations, employers will need to be able to rely on high-quality evidence from the initial investigation, in order to meet the evidentiary threshold. The standard of proof in all civil matters is 'the balance of probabilities', requiring that parties meet this standard via the evidence that can be marshalled in their favour. 

In matters where serious allegations have been made, the courts - beginning with Briginshaw v Briginshaw - have indicated that the standard of proof itself remains the same in all cases, but in serious matters where the finding is likely to produce grave consequences, the evidence should be of a particularly high probative value in order to meet the mark.

High-quality OUTCOMES

It is important for employers and their investigators to ensure that findings of workplace investigations can withstand the highest level of scrutiny and appeal. Given the complexities surrounding current workplace investigations, a high level of skill is required to ensure report findings are both sound and defensible. To ensure that you are assessing evidence effectively, WISE provides training in conducting workplace investigations

Writing an Investigation Report

Vince Scopelliti - Wednesday, July 31, 2019

To say that a workplace investigation report is an important document is certainly something of an understatement. Following the investigation, the report will be relied upon for all manner of significant organisational decisions, tasks and action. 

As a result, it is essential that workplace investigators create a professional, transparent and unbiased document.

ONE REPORT, MANY PURPOSES

When the investigation is complete and the report is handed to the employer, this document will provide a focal point for immediate action.

Employers will rely upon the report for appropriate disciplinary action, and as a means of establishing compliance where required. The investigation report will often form the basis of policy changes and will need to be clear and persuasive in this regard. 

Perhaps most importantly, the report will underpin the defence of any future claims. How the investigation has been carried out and the weight to be given to findings will be on display now and into the future. 

A sound methodology 

It is insufficient to simply cobble together some aspects of the investigation and present a pleasant-looking report. The report should be transparent; provide a clear step-by-step explanation of the investigation; state the allegations; make reference to the information and documents obtained and considered and the process of analysing and weighting the evidence - among many other elements. 

Readers will be looking to see how the interview process was carried out, if parties were treated with equal respect, plus whether findings were made with objectivity and on the evidence available.

The report should clearly reflect the author's thinking regarding whether allegations are substantiated, unsubstantiated or if a lack of evidence exists. 

A strong methodology will ensure the highest quality of evidence obtained - which can be of great significance when serious claims have been made, as explained in the Briginshaw v Briginshaw case. 

the right report format 

There is a tried-and-true approach to setting out a professional workplace investigation report. The first item is the executive summary which - as it sounds - provides a high-level overview of the process and outcomes. The methodology of the investigation is explained, demonstrating an underpinning coherence to the investigation process. Importantly, the civil standard of proof - 'on the balance of probabilities' - is defined and explained to ensure there is an understanding across a broad audience. The allegations, particulars and evidence are then set out in a professional and objective manner. 

A most challenging aspect of the report is describing and explaining the findings made. In essence, the investigator is explaining why one person's version of events or piece of evidence is to be preferred over another. Again, this must be done thoroughly and with transparency. 

The investigator then sets out any other issues that have arisen through the investigation, such as other issues identified in the workplace, the illness of a hoped-for witness or difficulties accessing documents, just as examples. Finally, the report sets out the final findings and where requested or appropriate makes recommendations in a clear and unbiased manner.

top tips for report writing 

When approaching the task of writing a report, a useful phrase is 'know your audience'. In most cases it will be the employer who has sole access to the investigation report. Yet the reality remains that a court could examine the report document at any future stage. 

In any event, aim to be short and concise at all times with clear and unbiased descriptions. Sometimes the investigation report will need to reflect the technical realities of the workplace, which might include convoluted descriptions or layered processes. 

In these circumstances it can be a good idea to create a glossary of terms or a similar explanatory system that allows for inclusion of and explanation of complex information, while not interrupting the flow of the document. Keep to a logical sequence. Having done the good work of a high-quality investigation, it can be all undermined if the employer is left with a report that is confusing or unhelpful. 

In writing up findings, it is essential that investigators 'follow the evidence'. For example, if evidence A plus evidence B led you to finding W then clearly state this. You cannot simply 'find W' without explaining your reasoning.

The task of pulling together all relevant material into a cohesive report at the conclusion of an investigation can be a challenging prospect. Utilising an external investigator can ensure a report is written in an unbiased, objective and timely manner. To appoint an expert to your organisation's investigation, contact WISE.

Interview Techniques for Workplace Investigations

Vince Scopelliti - Wednesday, July 24, 2019

In any workplace investigation, there will be multiple competing factors for an investigator to consider. One core issue is developing the appropriate interview strategy.

Investigative interviewing requires careful consideration of the purpose of the investigation, and exactly who will be interviewed. There is also the question of tone - ensuring that the interview remains cordial and does not begin to resemble an interrogation. 

At WISE Workplace, we have a wealth of experience in investigative interviewing, including the best practice interview techniques to bring to the task.  

the purpose of the investigative interview

The purpose of the investigative interview is to glean relevant information about a workplace allegation in a manner that is professional and fair. 

In devising a good investigation strategy, the interviewer will carefully select who is to be interviewed during the process. 

People with first-hand knowledge are the key - not those who simply heard a rumour or were told something second-hand. Such statements constitute hearsay, and can reduce the weight of the evidence and the overall value of the investigation if relied upon. It is important for the investigator to identify and interview those people who were directly involved, or who witnessed a situation first-hand. 

Ideally there will be enough witnesses available to corroborate evidence. If facts such as the identity of an alleged bully can be verified between witnesses, or certain actions can be adequately cross-checked, the resulting findings and report are likely to be sound. 

Having a support person available for witnesses is always recommended. Being interviewed for a workplace investigation can be stressful for any of the parties. The presence of a trusted support person can help to calm the witness.

interviewing or interrogating? 

It is vital to create the right environment for the interview. At a fundamental level, the interviewer should avoid any method of questioning that could be seen as interrogating rather than interviewing.

Keep the tone conversational and allow enough time to develop rapport across the interview. Inviting questions around how the interview will work, plus describing procedural aspects like recording and note-taking can assist in reducing anxiety. 

State the obvious. For example: "This is a difficult situation involving certain allegations in the workplace, and we appreciate your help here today".

Offer the witness the option to stop and clarify any questions and to take comfort breaks if needed. Firing off questions and requiring immediate answers is no way to develop rapport and will not illicit the best information and or evidence. 

Adopting a stern or hostile demeanour is unproductive and can also lead to claims of bias. A professional interviewer should never see themselves as a TV detective with a rough attitude and a light shining in the respondent's face! The interview is not seen as a technique used to extract a confession from a witness. Building good rapport is the key to a quality investigative report that stands the test of time.

high-quality interview techniques 

The experienced interviewer understands how to conduct the workplace interview with transparency and objectivity. While the personal information of others needs to be protected, the witness should be informed of all relevant material relevant to the allegations. Even alarming or distasteful allegations should be dealt with professionally and objectively. 

Building rapport with a witness is essential for effective interviewing. Structured processes such as the PEACE model of interviewing can help interviewers to cover all aspects of a professional interview. 

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. The model provides eight steps that should be undertaken which includes:

PLANNING: Examine what planning and preparation need to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed. 

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.  

Other tools such as active listening and open questions are also excellent ways to gather the best information, without raising problems of biased interviewing - perceived or otherwise. 

Don't rush the witness as they tell their story. Ask open questions, which allow the witness to provide a spontaneous and genuine description of events, rather than being fenced in by closed questioning or unnecessary interruptions.

Mastering the Investigative Interview 

Obtaining first-hand witness evidence by way of interview is essential to uncovering the facts of a matter. However, conducting interviews into serious workplace issues such as bullying and sexual harassment can be a difficult and sometimes a daunting task. 

WISE investigators have mastered key interviewing techniques and have extensive experience in conducting investigative interviews across industries. We have developed a comprehensive guide to steer HR professionals and investigators through the process. Purchase our book Investigative Interviewing: A Guide for Workplace Investigators for the best tips on successful interview techniques.

How to Write Letters of Notification and Allegation

Vince Scopelliti - Wednesday, July 17, 2019

During the process of conducting workplace investigations, it is generally necessary to prepare letters of notification, and later, letters of allegation. 

We take a look at the difference between the two, and provide some tips on how to prepare these important documents. 

notifying the parties involved

The letter of notification serves as confirmation that an investigation is going to be launched. These formal documents are sent to the respondent, the complainant and any witnesses involved in the investigation. 

It communicates how the process of the investigation will occur, who will be conducting it, as well as detailing the involvement required from the individuals.

For the complainant, this will generally mean the formalisation of their complaint and participation in an interview. A respondent will also need to undergo a formal interview and be advised of their rights, such as having a support person attend. 

A letter of notification should ideally be prepared and sent as soon as an investigation plan has been finalised.

the elements of a letter of notification

When writing a letter of notification, it is important that it contains specific details including:

  • What exactly is being investigated.
  • Who is conducting the investigation. It is important to identify which members of the organisation will be involved.
  • A formal request for interview. 
  • The offer of a support person to all parties who will be interviewed.
  • A reminder for all parties involved to maintain confidentiality around the process, and the potential consequences of a failure to do so. 

Writing letters of allegation

Although similar to a letter of notification, a letter of allegation contains more detailed information. Instead of being addressed to all the parties involved, only the respondent will receive a letter of allegation. 

The letter should clearly set out: 

  • Details and particulars of the allegations. This information should be as specific as possible, to give the respondent a genuine opportunity to respond to the allegations. 
  • A request for supporting documents. The respondent should be advised of the opportunity to provide any information or evidence supporting their position. 
  • A formal request for interview. Although this has already been identified in the letter of notification, the letter of allegation reiterates the requirement for participation in the interview process. The letter should also reiterate the right of the respondent to have a support person involved in the process. 
  • The letter is required to stipulate if there is a finding of misconduct, what disciplinary actions may be considered and imposed. 
  • A further reminder of the need to maintain confidentiality.  

A letter of allegation should be sent after the complainant has been formally interviewed. This means that detailed allegations can be put to the respondent. 

Do's and do not's when preparing letters of allegations

When preparing a letter of allegations, it is important that procedural fairness is maintained. The respondent should have only clear allegations put to them, supported with evidence where available of the conduct or behaviour alleged. 

The letter of allegation should avoid making any conclusions about the investigation. 

Importantly, it should also demonstrate that the investigators and decisions-makers involved are objective. 

Communication with the parties to a workplace investigation is critical in ensuring a fair and considered approach is taken. Failing to comply with the steps of procedural fairness can impact on the soundness of investigation outcomes, findings and recommendations and leave employers open to decisions being overturned. 

WISE Workplace provides training in investigating workplace misconduct. This training is aimed at providing practical skills that enable you to draft procedurally fair and legally compliant letters of notification and allegations.   

Creating an Action Plan: ToR and External Investigators

Vince Scopelliti - Wednesday, July 10, 2019

When conducting a workplace investigation, it is crucial to be able to demonstrate that appropriate procedures have been followed. This is essential in defending any subsequent action that may be taken. 

It can be helpful for employers to create an action plan utilising Terms of Reference (ToR) and the services of an external investigator to keep the investigation process on track. 

3 Key principles for drafting the tor

The ToR is a framework that provides structure and a plan for the investigation. Without it, an investigation runs the risk of becoming too broad or unwieldy. There are three basic guiding principles for employers to keep in mind when drafting the ToR. 

1. Reason

This sets out why an investigation is necessary, which people are anticipated to be involved (at least the complainant and respondent) and the key questions which need to be answered as a result of the investigation. 

2. Remit

The remit section provides the parameters for the investigator's involvement and identifies what the investigator is supposed to do. 

In certain circumstances, the investigator will be required simply to engage in a fact-finding mission, in order to collate information for the employer to make a final determination or outcome. Alternatively, an investigator may be tasked with dispute resolution, or even providing disciplinary recommendations. 

This section can also identify what, if anything, is 'off limits'. For example, an investigator may be prohibited from having access to commercially sensitive information. 

However, it's also important to note that an investigator will be hampered if there are too many restrictions placed on them. 

3. Report

This practical aspect of the ToR identifies in what format the final report is to be provided. The due date and expected distribution list should also be noted in the ToR.

In order to maximise the success of the investigation, the TOR should be drafted as soon as possible after a decision has been made to investigate a complaint.

Why appoint an external investigator? 

Even the most experienced HR professional may struggle to undertake a completely unbiased investigation. Cross allegations and accusations of unfairness can cloud issues and throw the investigation off-track. 

By outsourcing investigations of this nature, employers can prevent any perceived or actual apprehension of bias. External investigators are impartial, and in some cases, better able to conduct an objective investigation than someone internal. 

An external investigator is particularly helpful in circumstances where: 

  • The organisation requiring an investigator is small and all staff are well known to each other.
  • The allegations requiring investigation are particularly egregious, serious or even traumatic.
  • There is potential for criminal or civil proceedings to arise out of the investigation.
  • Senior management or HR staff are directly involved in the complaint, whether as respondents or complainants. 

External investigators also have a level of experience and expertise that can be difficult to match in-house. Even with clear ToR, an internal investigator may find investigating the allegation and writing the final report challenging. 

Appointing an external investigator can also save time. Often, the person chosen to head an investigation internally, will also still have their core duties to perform.

Engaging an external investigator

When you engage an external investigator, it's a good idea to write a letter of appointment/engagement. This should set out clear instructions and confirm the scope of the investigator's role. The ToR should also be included. 

If you require assistance in defining the scope of your investigation, or would like to engage an expert to tackle workplace matters requiring investigation, our investigators are committed to dealing with complaints independently, providing expeditious, thorough investigations with integrity. Visit our website or contact WISE to find out more. 

Receiving Workplace Complaints

Vince Scopelliti - Wednesday, July 03, 2019

Employers should be well aware of the legal and associated requirements that come into play when someone in the workplace raises their hand with a grievance. 

Complaints about unacceptable and/or inappropriate behaviour can arise from any work area, and in regard to a wide variety of issues. Grievance handling needs to be fair and consistent - yet with each situation being approached on an individual basis. 

We take a look at creating a sound process for the receipt of complaints, which reflects and follows existing policies and procedures.

types of complaints

Complaints can be made in relation to all manner of behaviours. Examples include allegations of bullying, harassment and sexual harassment and even - in workplaces involving children - child abuse. 

Harassment itself covers a wide range of behaviours that could occur on or offsite, including those via digital communication such as email, social media platforms and messaging. 

Employers should note that alleged perpetrators can be colleagues, managers and even occasionally worksite personnel such as contractors.

steps to take when receiving a complaint 

For employers it can sometimes be difficult to know just where to begin once a complaint has been received. At a basic level, all internal procedures and policies should be carefully followed to ensure fairness and consistency. 

A clear and well-understood complaints process needs to be in place prior to the (inevitable) receipt of a workplace complaint. All those involved should receive even-handed treatment, with any decisions being made in a defined and measured way. 

In some instances, the alleged behaviour will constitute reportable conduct, with an employer obliged to notify a specified body about the allegation under a compulsory reporting regime. 

As society comes to grips with some of the behaviours that can occur in relation to our most vulnerable individuals, more stringent reporting requirements for employers continue to be developed. For example, the National Disability Insurance Scheme has been designed to ensure that employers take timely and objective steps upon receipt of any relevant complaint

key principles when responding to complaints 

In the case of complaints, it pays to ask some basic questions about the situations such as:

  • Is the behaviour unacceptable or not?
  • Does the situation warrant measures to minimise the risk of ongoing harm?
  • Do I have a clear understanding of the issues?
  • Do I need additional information or assistance?
  • Can the matter be safely resolved between the parties or at a team level?
  • Should the matter be progressed to an investigation? 

A key issue is the manner in which the people involved in a complaint are treated and how any required information is communicated.

At all times, employers should take the matter seriously, refrain from victimising any individual and ensure the same treatment for all personnel involved.

Confidentiality should be maintained at all times and support mechanisms put in place for what is, inevitably, a difficult time in the workplace. 

Taking the right approach

It is vital for employers to be aware of their legal obligations and best practice when it comes to addressing workplace complaints. Complaint handling can become quite complex depending on the type of complaints and the number of people involved. 

WISE provides professional and up-to-date training on conducting workplace investigations. Our courses are specifically designed for those engaged in the investigation of workplace misconduct, including bullying and harassment. Please call us if you would like expert assistance around complaints processing and the best way to ensure fairness if - and when - a workplace complaint is received.  In addition keep an eye out over the next seven weeks, as we will be publishing a series of articles, in which we examine the workplace investigation process. 

Social Media Misconduct: The Need for a Fair Investigation

Vince Scopelliti - Wednesday, June 19, 2019

An ever-increasing key dilemma for employers in the modern age is how to deal with the misconduct by staff through their use of social media platforms. 

The list of potentially offending conduct is lengthy. For example, staff might call in sick but then post details of their activities on social media. Employees could post inappropriate, defamatory or confidential information on their accounts. One high-profile example is the sacking of a PayPal executive in 2014 who publicly ranted about his co-workers on Twitter, or more recently the well publicised matter regarding Israel Folau and his instagram post. 

Given such a potential minefield, we look at what employers should do to ensure a fair investigation relating to allegations of social media misconduct.

procedural fairness key in australian case

The matter of Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186 highlights the importance of ensuring that an investigation is thorough and involves appropriate levels of procedural fairness. This requirement applies in social media misconduct, as in all other cases.

Mr Singh was dismissed from his role as a baggage handler in October 2015. Although the reasons for his dismissal were not made immediately clear to him, after proceedings had been issued in the Fair Work Commission, the employer alleged that Mr Singh had breached its social media policy by publicly supporting ISIS and known associates. 

It was also claimed that he had made radicalised comments against the Australian Government. Of particular relevance and concern was Mr Singh's status as an airline employee. 

Before he was terminated, Mr Singh was advised that there had been complaints involving his social media posts and that there would be an investigation. However, Commissioner Hunt found no evidence that Mr Singh was told he could bring a support person to the investigation meetings. Further, although the termination related to a number of posts on social media, Commissioner Hunt accepted that not all posts were shown to Mr Singh for his response. 

Factors in the decision

Relevant factors taken into account by the Commission in determining whether conduct occurring away from the workplace can invoke disciplinary action, include conduct that is: 

  • Likely to cause serious damage to the employer/employee relationship; or
  • Damaging to the employer's interests; or
  • Incompatible with the employee's duty as an employee. 

Before the Commission, Mr Singh's evidence was to the effect that he was against ISIS and radical Islam, and that his comments had been sarcastic. 

the outcome of the case

It was concluded that the employer had not spent sufficient time investigating whether or not Mr Singh was in fact opposed to ISIS. Commissioner Hunt accepted, that if there had been sufficient evidence to demonstrate that Mr Singh had a radicalised perspective on Islam, there would have been too great a risk for an employee with these views to continue working at the airport. 

However, it was determined that in the circumstances the employer should have gone to greater effort to investigate Mr Singh's Facebook newsfeed. If that had occurred, it was considered that it would have been clear that Mr Singh's claimed sarcasm was the true motivation behind his postings. 

Accordingly, the Commission determined that, if a proper investigation had taken place, it would have been apparent that Mr Singh was not radicalised. Therefore, Mr Singh's dismissal was deemed harsh, unjust and unreasonable. 

Instead of terminating his employment, it was considered that an appropriate disciplinary action commensurate with the misconduct would have been reiterating the social media policy of the employer and insisting that Mr Singh refrain from posting incendiary material.

need help in ensuring a fair investigation? 

This case demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action. In unfair dismissal claims, the Commission will not hesitate to award judgments in favour of the applicant where it is determined that the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair and enforceable, WISE Workplace provides investigation services, as well as 'conducting workplace investigations' training. 

Performance Management vs Bullying: Where's the Line?

Vince Scopelliti - Wednesday, June 12, 2019

Employers often face a quandary in dealing with underperformers, and whether to place them onto a performance management program. 

It's essential that any such move can always be considered to be 'reasonable management action' in response to inappropriate behaviours or inadequate or unsatisfactory performance, and not simply a way of bullying an employee. 

Let's take a look at the difference between performance management and bullying, and how employers can make sure they are not crossing the line.  

what is performance management?

At some point, every employer will need to manage an underperforming staff member. In practice, this means taking steps to deal with poor conduct, including:

  • Non-compliance with policies/procedures and other workplace requirements
  • Inappropriate, disruptive or generally bad behaviour
  • Unsatisfactory performance of work tasks

The necessary steps may range from informal performance management, where the inappropriate or unsatisfactory behaviour is brought to the staff member's attention, through to a more formal process such as the implementation of a performance improvement plan.

is it reasonable management action or is it bullying?

Employers are not prohibited from dealing with staff that they consider are underperforming. However, care needs to be taken to avoid bullying a staff member, within the meaning of s789FD (1) of the Fair Work Act 2009 (Cth)

That legislation defines bullying as a situation where 'an individual... or group of individuals... repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and... that behaviour creates a risk to health and safety'.

The same legislation explicitly excludes 'reasonable management action carried out in a reasonable manner' from the bullying definition.

But what is reasonable management action? Although not an exhaustive list, the following situations constitute appropriate management action within the meaning of the legislation:

  • Scheduling regular meetings to discuss ongoing performance issues
  • Disciplinary an employee for identified misconduct
  • Undertaking an investigation into a complaint
  • Modifying a worker's duties as required by operational reasons or the employee's health.

When making an objective assessment of the reasonableness of the management action, it is important to consider what caused the action, what circumstances were  in train while the action was taken, and what occurred as a result. 

It is also important to note that there is no 'retrospective gold standard'. Just because an employer may, in hindsight, have been able to improve on the way they undertook the action, does not necessarily mean that it was not appropriate reasonable action at the time. 

Moreover, although the staff member's perception of a negative management action is likely to tend towards it being unreasonable, the standard is objectiveness and this is not determined by one or a group of employees' views.

lesson from real-world cases

Unsurprisingly, the question of what constitutes reasonable management action is one which is frequently litigated in court. 

In the decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, it was determined that a manager's day-to-day instructions were not enough to constitute 'management action'.

In National Australia Bank Limited v KRDV [2012] FCA 543, the court considered that although the employee was spoken to about her performance in both a formal Action Operation Management meeting and in a 'casual chat', the two meetings were not sufficiently clear as performance-related discussions to constitute reasonable management action.

how to ensure compliance with reasonable management action

Practical tips for compliance include: 

  • Ensuring that formal and documented performance management processes occur at all relevant times, and avoiding informal or impromptu 'chats' on performance
  • Reviewing policies and procedures regularly, in relation to bullying and also appropriate disciplinary action
  • Advising managers to always provide clear and direct instructions, which cannot be seen as ambiguous
  • Documenting and providing formal written warnings when inappropriate behaviour is called out, to demonstrate that management involvement has been required. 

Performance management is part of maintaining a successful business. However, if you receive complaints regarding your performance management approach, and want to ensure that you are complying with best practice and acting in a fair and reasonable manner, contact WISE for assistance and advice today.

Can Employers Investigate if Complainants Ask Them Not To?

Vince Scopelliti - Wednesday, May 22, 2019

One of the more difficult aspects of managing an employment relationship is appropriately dealing with complaints, both from the perspective of the complainant and the accused. This is made even more complicated when a reluctant complainant brings something to the attention of Human Resources or management, then does not want it investigated. 

We examine why a complainant might not want to take an issue further, and what an employer's rights and obligations are in these circumstances.

why a complainant might be reluctant

There are many reasons why an employee might be reluctant to have a complaint investigated. These include: 

  • Fear of retribution - This is common in circumstances where the 'accused' holds a position of power over the complainant in the workplace. The complainant might fear reprisals and that their daily work life will become more difficult. This is particularly the case if the complaint relates to physical, sexual or emotional aggression. 
  • Fear that the complainant will not be taken seriously - The complainant might be worried their complaint will be considered 'trivial' or won't be dealt with objectively because of the position of the other party.
  • Time commitments - It is well known that an investigation will require a significant amount of time commitment from all parties. A complainant might not wish to be involved in a lengthy and time-consuming process. 
  • Lack of evidence - Complainants could feel that they are involved in a 'he said, she said' situation. The complainant might be concerned that an investigation will not ultimately support their version of events.    

The best way to address these concerns is for Human Resources or management to make clear to staff that all complaints are taken seriously and are duly investigated. This is regardless of who made the complaint, against whom it is levelled, and how much evidence might be required to fully conduct an investigation.

is a complainant allowed to withdraw a complaint? 

A complainant has the right to withdraw both the complaint and their support of any investigation. This generally spells the end of the investigation, because the person who receives a complaint is bound by confidentiality. This leaves the reluctant complainant as the only source of evidence to support an investigation.  

employer obligations to investigate

But employers are obliged to balance their duties of confidentiality with their obligations under workplace health and safety legislation. This includes eliminating discrimination and ensuring that everybody is able to undertake their jobs without unreasonable impostes. In circumstances of accusations of significant misconduct or even criminal activity, an employer may be justified in or even compelled to pursue an investigation, notwithstanding that a complaint has been withdrawn.

For example, if the complainant has raised issues of conduct that may constitute the commissioning of fraud, then the withdrawal of the complaint will not immediately result in the conduct alleged not being able to be independently investigated. There are also other considerations and duties of care that need to be taken into consideration before an informed decision to not undertake or to cease an investigation can be appropriately made. 

The dangers of a rigid policy structure

Although it is essential that all businesses have a complaints and grievances policy, there is some risk in having a procedure that is perceived as being too strict or rigid. If the general consensus amongst the staff is that there are only 'black and white' approaches toward dealing with complaints, this could result in staff being deterred from reporting incidents. This could ultimately result in employers breaching their legislative obligations and duty of care. 

At WISE Workplace, we have expertise in dealing with investigations involving reluctant parties. Talk to our team about full or supported investigation services for your organisation.