Over the past week, there have been numerous media reports about the mishandling of sexual harassment and toxic workplace complaints and investigations, alleged cover-ups of senior executive misconduct and unsatisfactory complaint handling within organisations.

This might seem relatively surprising given changing community and business standards, not to mention the recent legislative reforms that place a positive duty on businesses to eliminate, as far as possible, various unlawful behaviours relating to sexual conduct in the workplace or in connection to work. 

If you speak to business leaders, seasoned HR professionals and people managers, they will usually respond by declaring that their organisation has addressed the positive duty and has robust systems for handling sexual harassment and toxic workplace behaviour.

However, this response may be analogous to when some employers previously proclaimed they did not have issues with underpayments of employee wages, only to find out some time later that they had been underpaying employees over many years, albeit, in many cases, unintentionally. 

So, what’s missing? Why does it seem organisations are still getting it wrong?

The Australian Human Rights Commission published guidelines in August 2023 that included practical examples of what employers should proactively be doing to comply with their positive duty to eliminate unlawful sexual behaviour in the workplace. The 112-page guideline makes it clear that it’s simply not enough for organisations to undergo a box-ticking exercise.

The guidelines comprehensively indicate that companies with strong culture and governance can effectively prevent and respond to workplace misconduct by:

• Having clear complaint handling procedures that are well-known within the organisation, so employees feel safe to report unsatisfactory workplace behaviour at an early stage.
• Creating support mechanisms for workers to feel safe and assisted by the organisation in raising issues about unsatisfactory workplace behaviour. For example, this could look like internal support through nominating workers or asking for volunteers to act as contact officers, and creating peer support networks and ensuring they’re trained in receiving disclosures of relevant unlawful conduct and harm. Organisations could also engage external specialist support through work-funded Employee Assistance Programs.   
• Ensuring investigations into allegations of unsatisfactory workplace conduct are undertaken in a fair and consistent manner to provide workers with confidence that their organisation is committed to creating a safe and inclusive work environment.

Below, we provide an overview of what boards, senior managers, HR, legal and risk professionals should be doing at a minimum and offer best-practice tips in relation to complaint handling and investigations to ensure the safety of their workers.  

This should help employers and HR avoid any reputational damage that their organisations may face when these issues are not managed to the high standards now expected by both workers, the government and the broader community. 

Best-practice complaint handling    

While best practice will look different in different businesses, depending on organisation size, operations (e.g. remote or international), HR and employee relations capacity, etc., employers should generally be implementing the following best-practice steps to ensure complaints are handled appropriately:

1. Consult with workers about existing and proposed complaint handling measures within the organisation.    

As persons conducting a business or undertaking, employers must, so far as reasonably practicable, consult with workers (which includes employees, contractors, volunteers and anyone else who carries out work for the business) who are or are likely to be directly affected by a health and safety matter.

Inevitably, many complaints about unsatisfactory workplace behaviour relate to safety matters, including psychosocial hazards.  

In engaging and consulting with workers about complaint handling measures and mechanisms, organisations are able to obtain real and practical knowledge and experience to make improved and informed decisions about how to handle complaints in a safe manner.

2. Implement a workplace policy that sets out the organisation’s complaint handling procedure

The policy should set out in clear, concise and plain language for workers to understand:

1. The who, what, where, why and how of making a complaint or raising a concern (including various options based on the level and rank of the person being complained about and the information required).   
2. That the process will be undertaken as confidentially as possible, explaining that information may need to be disclosed on a need-to-know basis.   
3. That their complaints or concerns will be taken seriously.   
4. What immediate action will be taken by the organisation after a complaint or concern is raised, including expected time frames.   
5. Options available to the worker to ensure their safety and wellbeing (e.g. if required, temporary adjustments to reporting lines, access to leave, etc.).   
6. Informal and formal options available to resolve the complaint where appropriate.   
7. An outline of possible consequences if misconduct in breach of an organisation’s policy or law is found to have occurred    
8. Where workers can provide feedback about the policy.

3. Implement a bystander policy

This policy should set out the organisation’s expectations for workers to report any inappropriate conduct witnessed as a bystander.

4. Regular and continuous communication

Organisations should regularly communicate the existence of relevant policies and procedures to employees and where they are located.

This should not be an exercise limited to the induction and starter packs for new workers, but part of a wider HR strategy to ensure workers are embedded with knowledge about the organisation’s expectations and the rules that govern the workplace.

5. Access to information

The complaint handling policy and procedures should be easily accessible and publicised to all workers (for example, located on the organisation’s intranet, on staff notice boards and provided as part of the welcome pack for new workers). The regular communication, mentioned above, should capture this point.

6. Appropriate training

Provide tailored training to all workers, and separate training specifically designed for managers and those who have people management responsibilities, to ensure they:

1. Understand the obligations they have in the complaint handling procedure.  
2. Equip them with the knowledge and information to discharge their obligations    
3. Know how to respond and/or escalate the matter appropriately, by testing them on the training content.

The training for everyone may be conducted by way of an interactive learning module or workshop that simulates different scenarios and guides decision-making depending on the type and severity of the allegations, and tests employees on the content covered.

Organisations may also like to consider offering mental health first aid training to equip front-line managers with recognising and responding to workers experiencing a mental health crisis arising from workplace conduct experienced or witnessed by workers.

“Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.”

Best-practice investigations    

Once a complaint or concern has been reported, and the organisation is aware of an issue, appropriate action must be taken by the organisation within a reasonable timeframe, and taking into account its available resources.

This is because there is a potential hazard that the organisation has been made aware of and needs to address promptly. Failing to act swiftly is the equivalent of leaving hazards such as a puddle in the middle of a shopfront, or a loose screw in a piece of machinery, meaning it often becomes too late to act.    

Appropriate action may take the form of a factual investigation to determine whether the allegations are more likely to have occurred than not, on the balance of probabilities, and should involve at least the following steps:

1. Undertake a risk assessment and determine whether any workplace adjustments are required to protect the safety of the complainant, and ensure confidentiality      

Depending on the nature of the allegations and proximity of working relationship between the complainant and the alleged perpetrator, workplace adjustments may need to be made to ensure everyone’s safety while the investigation is being undertaken.

For example, temporarily changing reporting lines, directing one of the parties to work from home or, in serious matters, suspending the alleged perpetrator from work until further notice.

2. Determine whether the investigation will be undertaken internally or by an external/independent party, and select an appropriate investigator

Subject to the seriousness of the allegations, it may be appropriate to conduct the investigation internally, by way of desktop review, etc; or seek legal advice; and/or engage an external third party to conduct the investigation.

Whatever way the matter is to be investigated, the investigator must be impartial, which means the investigator should not have any conflict of interest (either actual or perceived) – such as a former manager or close colleague – with the parties involved in the complaint; and should ideally be trained with undertaking investigations.

3. Communicate next steps clearly      

Communicate appropriately, and as applicable to all relevant parties, that a complaint has been made, who will be undertaking the investigation, what the investigation process will involve – including estimated timeframes – and what some of the potential outcomes could involve. 

This may also involve strategic communications with relevant teams to ensure confidentiality is maintained and the organisation’s commitment to a safe and inclusive workplace environment is highlighted. 

Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.

It provides assurance to complainants that their complaint is being treated seriously and managed appropriately, and keeps alleged perpetrators abreast of when findings are expected to be made.

4. Review the organisation’s policies and procedures with respect to complaint handling and investigations      

If the organisation has committed to a policy or procedure in relation to how complaint handling and investigations will be undertaken, these must be complied with, as all employees will expect that the process they have been notified about will be followed.

5. Conduct fair and objective interviews with the complainant, all relevant witnesses, and the alleged perpetrator

Give all parties the benefit of the doubt. Everyone involved should be treated in a fair and uniform way. Questions should be prepared in advance so interviewees will be able to tell their side of the story fully. Leading questions such as, “You knew what you were doing was wrong, didn’t you?”, should be avoided as theymmay lead to a biased response.

Where additional witnesses are identified during interviews, care must be taken to determine whether or not they should be spoken to, to ensure all available evidence is collected before any factual findings are made.

6. Record keeping

Keep a clear and comprehensive record of all steps taken, including keeping all interview transcripts, notes and evidence collected.

7. Investigation report

In many instances, the investigator should prepare a report at the conclusion of their enquiries. The report must contain the findings of fact and, if asked by the organisation, make recommendations and/or a determination.

If the investigation has been conducted in order for the organisation to obtain legal advice, the report should only be provided to the ultimate decision-maker(s) and not to any other parties.

8. Findings

The organisation should, after receiving the investigator’s findings, communicate those findings and any decision appropriately to all the parties involved.

The ultimate decision maker should ensure the final decision is proportionate to the findings made. Where adverse findings and outcomes are proposed, the organisation should provide the alleged perpetrator with the opportunity to respond before a final decision is made.

 This ensures the alleged perpetrator is given a procedurally fair process to provide any additional information that may not have been disclosed and could therefore impact the findings and outcome proposed.

What should HR do next? 

It’s clear that workers and the wider community are increasingly placing a higher standard on businesses and organisations to provide a safe and inclusive work environment. 

Accordingly, it’s more important than ever that organisations review their governance structure to ensure they have an effective ‘prevention and response plan’.

Such plans should include adequate complaint handling systems and ensuring workplace investigations are conducted correctly.

 As has been seen recently, failure to do so has far-reaching consequences, not only in damaging the organisation’s reputation with the public, but internally damaging workplace culture and creating a loss of trust in leadership, which will take significant time and resources to repair, if they are, indeed, repairable at all. 

Aaron Goonrey is a Partner and leads the Australian Employment & Rewards practice at Pinsent Masons and Jessica Park is an Associate at Pinsent Masons. The advice in this article is general in nature and does not constitute formal legal advice.

Need help brushing up on HR laws and compliance? AHRI’s short course will give you an understanding of the key elements of legislation, regulation and practices HR needs to be across.

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Let’s get one thing out of the way, apologies don’t always need to be managed by HR. A lot of issues can be handled privately. 

If co-workers have a minor disagreement about something – whether it be questions about the use of the office fridge or arguments about messy desks – calling for HR is overkill. Even if there are more divisive spats that can’t be resolved between the people arguing, often the appropriate mediator is the relevant manager.

But there are serious incidents, particularly those that come up in a workplace investigation into misconduct, where an apology might have to be managed by HR to mitigate any chance of further trauma or of backlash.

How HR fits in

For some people apologising is a difficult thing to do. There are countless examples of movies, books and shows where a protagonist stutters out the phrase “I’m sor… I’m sorry!” 

So whether you believe art imitates life or vice versa –  it’s clear some people need a helping hand when it comes to apologising. HR can be that hand, revealing to the wrong-doer why what they did was wrong and why they need to be held accountable and how they can make peace with the offended party. 

According to partner at Hall and Wilcox Fay Calderone, an apology is crucial in any dispute. 

“Employees and employers should be proactive about raising and addressing issues at an early stage,” she says. “Lost time will only escalate the issue.”

When HR is proactive they can not only support employers and employees but also foster a better workplace culture. 

“[Managing apologies] also suggests that the organisation takes seriously its employees’ commitment to the Code of Conduct and there’s an expectation that employees will take responsibility for their behaviour towards one another,” says Calderone. 

A bad apology 

Founder of HR consultancy firm Corporate Dojo Karen Gately says she has consulted on many workplace investigations which have resulted in solutions that require apologies. She told HRM about two instances that involved bullying. Both perpetrators apologised, but one apology failed.

“The individual in this situation was incredibly hard-headed and felt they hadn’t done anything wrong. But they wanted to keep their job so they took a compliant attitude and approach.”

So when Gately and the accused sat down with the bullying victim neither Gately nor the victim were impressed. 

“My honest observation was that they did not mean a single word of their apology – they still came across aggressive and intimidating,” she says. “It’s because they hadn’t yet emotionally accepted they were responsible for the harm that was caused.” 

She decided to end the meeting and sat down with the bully and explained to them that not only was their behaviour unacceptable but if they didn’t amend the situation, their career was on the line. Thanks to that talk Gately saw some positive change but only for a short time. 

“It’s not sustainable if someone doesn’t accept responsibility – inevitably they revert back to their poor behaviour,” says Gately. 

When it comes to managing an apology that has backfired, Gately recommends that HR takes a respectful and sensitive but ‘brutally honest’ approach with people.

“Don’t hold back from these conversations because people deserve to have them,” she says. “If they’re on thin ice in their career then HR needs to be honest and help them.” 

Learn practical strategies to assist with building, developing and maintaining effective communication practices within and across teams. Visit Ignition training to find out more.

Of course, even if a person is remorseful for their actions an apology can still fall short. For example, it could be too non-specific or lack true accountability (i.e. the classic: “I’m sorry if what I did upset you.”) 

“In other words it may be lost on the person you’re apologising to,” says Julie Sweet, a psychotherapist from Seaway Counselling and Psychotherapy, who has worked with implementing EAPs in both vocational and corporate settings. 

If the apology is lost on the wronged person, Sweet says the wrong-doer may need to reflect on their apology and possibly reframe it. 

“If they don’t show any ease or don’t appear comforted by your apology then these are indicators telling you to slow down the process,” says Sweet. “This is a chance to check in and ask how they feel and what they need. Then keep the lines of communication open and go forward from there.” 

A good apology 

In Gately’s second example, the perpetrator held a senior position and was prone to outbursts. Naturally many people felt intimidated and picked on by him. So a workplace investigation took place – and the outcome went really well. 

“He was an unconscious bully – he struggled with emotional intelligence,” she says. “He was completely oblivious and sincerely meant no harm and felt genuine remorse. He was devastated that he hurt someone.” 

Gately says once that self awareness is obtained people can let down their defences and genuinely apologise. 

When it comes to good apologies Calderone recommends using author Dr Aaron Lazare’s methodology (from his book On Apology). It has four parts:

• Acknowledgment – Calderone says this helps to rebuild trust and re-establish the relationship. It also gives HR and the person affected a chance to discuss what is and isn’t acceptable.
• Affect – this is to show that the perpetrator’s own actions has caused them to feel remorse. 
• Vulnerability – in order for someone to accept full responsibility, they need to offer an apology without defence nor the expectation that they will be forgiven.  
• Restitution/reparation – make amends and make steps towards ensuring it never happens again. 

It’s important to note that the feelings of the person doing the apologising still matter. Gately says HR can help manage an apology by ensuring the apologiser’s self-esteem isn’t damaged during the process. “It’s important to show people that they can be forgiven if they demonstrate their remorse and commit to doing better.” 

Have you ever managed an apology in the workplace? Tell us what you did in the comments below. 

The post Apologising at work: when and how HR can help appeared first on HRM online.

Workplace complaints involving alleged bullying or harassment, a senior member of staff, a repeat offender, or anything serious or distressing will generally require a workplace investigation. But many can come unstuck due to common mistakes. Perhaps one of the most frequent mistakes is an employer failing to follow their own internal investigation procedures. This may reflect an organisation whose policies and procedures are not well understood, or have been filed away somewhere in the bottom drawer.

Another common mistake is failing to act quickly to investigate, creating the perception that inappropriate behaviour is tolerated in the workplace and not taken seriously. There is potential for missteps around interviews and evidence gathering. Employers may fail to question witnesses adequately to gather information. They may draw conclusions from a witness known to be unreliable, or from information that has little substance.

In some cases, employers make the mistake of interviewing witnesses in group settings when it was apparent there is a conflict of interest and they should have been interviewed separately.

What does a good investigator need?

A good investigator will have strong report writing and interviewing skills, patience, flexibility, perseverance, and good communication skills. They will also understand the applicable workplace policies and procedures, and the rules of procedural fairness. Prior to commencing an investigation, the organisation should provide an investigation brief to the investigator. It should include the allegations being investigated, any relevant documents such as policies, emails and IT reports. It will identify the complainant, the respondent, any witnesses, and the chronology of known events.

Most importantly, the investigator should not have a predetermined view of the outcome, or a personal relationship with any of the parties. Nor can they be a potential witness, or investigate an issue they may have previously advised on. Investigators need to maintain a professional distance with participants during interviews. They need to remain independent and make their findings on the evidence alone. Investigators must recognise a conflict of interest and deal with it – even if it means having to step aside.

Organisations should seek external expertise when they do not have someone internally with these skills and qualities, or if they are somehow compromised, or if there’s potential for litigation.

Procedural fairness

Workplace investigators may be overwhelmed by an investigation, yet courts and tribunals understand the reality of the workplace – they do not expect an employer to conduct the equivalent of a police investigation. But any investigation must be procedurally fair.  This will usually involve clearly stated allegations (any allegation which is vague or overly subjective will not stand up to scrutiny; nor will anything based on rumour, or any allegation that is too old) and following fair and comprehensive internal complaint handling procedures.

Tips for a procedurally fair investigation:

• The respondent knows all allegations made against him or her
• The respondent is given a reasonable opportunity to respond to the allegations
• Confidentiality is maintained
• The investigator is impartial
• The investigator considers all relevant evidence

Legal advice and assistance

Legal advice and assistance provided before an investigation commences may offer protection via legal professional privilege: this may limit the information about the investigation which is available to the parties involved in the complaint – important if a claim ends up in court.

Legal advice might also steer the case in the right direction.  For example, there are workplace complaints described as bullying, but if it’s a one-off incident then a bullying claim will not stick – there needs to be a pattern of unreasonable behaviour over time to constitute bullying. If disciplinary action is required because of the findings of an investigation, you need to ensure proper process has been followed and legal obligations are met.

Alison Baker is a partner at Hall & Wilcox.

This article originally appeared in the September 2017 edition of HRM Magazine.

The post The best way to handle workplace investigations appeared first on HRM online.

And, holy bananas, if her claims are true (if even half of them are true), her story is an example of what it looks like when HR gets every single step wrong.

According to her account, upon entering the company Fowler got her pick of engineering teams and chose the one that most aligned with her experience. On day one, her new manager sent her a series of text messages about the open relationship he had with his partner and how she was having more relations than he was.

“He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with. It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR,” she writes.

To her surprise, HR sided with the manager, saying that since this was his first infraction, and he was a good performer, they weren’t willing to do anything more than issue “a warning and a stern talking-to”. They gave her two options. She could move to another engineering team or stay where she was. They explained that if she chose the latter, she would likely receive a bad performance review, presumably because the manager would see it as a slight.

“One HR rep explicitly told me that it wouldn’t be retaliation if I received a negative review because I had been ‘given an option’. I tried to escalate the situation but got nowhere with either HR or with my own management chain.”

AHRI chairman Peter Wilson addressed this very topic recently when he talked about the ethical problems inherent when there is an imbalance in power in work relationships. He pointed out the obligation of HR to represent all employees regardless of status.

Despite trying to get HR and management to do the right thing, Fowler ended up moving to a different team. Over the next few months she learnt that other women in the company had made similar complaints about the manager, undermining HR’s narrative.

“Myself and a few of the women who had reported him in the past decided to schedule meetings with HR to insist that something be done. In my meeting, the rep I spoke with told me that he had never been reported before, he had only ever committed one offence (in his chats with me), and that none of the other women who they met with had anything bad to say about him, so no further action could or would be taken.”

(Want to know how to actually handle a workplace investigation? Read our guide.)

Sexist culture

These are only some of the difficulties with HR Fowler mentions in her blog. But as broader evidence of the company’s sexist culture Fowler writes, “When I joined Uber, the organisation I was part of was more than a quarter made up of women. By the time I was trying to transfer out, this number had dropped down to less than 6%.”

Uber’s chief executive Travis Kalanick is aghast at the post, and is vowing to investigate its claims. He says, “We seek to make Uber a just workplace and there can be absolutely no place for this kind of behaviour at Uber.”

It’s not too much to use the cliche here and suggest that this might be too little, too late. The famed Silicon Valley “frat boy culture” is again under the microscope, Fowler is now employed elsewhere and Uber’s problems with its workers, which used to be confined to its drivers, now seems to extend to its office staff. And all of this is taking place in a year where people are already turning on the drive-sharing company over its relationship with taxis, and Donald Trump.

But who knows, it’s an age of technical marvels. Uber is planning to someday automate all of its cars. Maybe it can do the same to its HR department.

The post The bad, no good, terrible mistakes of HR at Uber appeared first on HRM online.

No doubt you read our previous article on when a workplace investigation might be required, and on that basis have decided to put on your detective deerstalker.  But is the answer elementary? Are you taking the right steps towards solving this mystery?

Step one

Before taking any action you should first consider the seriousness of the allegations.  An allegation that, if found to be true, would likely lead to a person’s employment being terminated will almost always require a more extensive workplace investigation than an allegation which may only lead to an informal warning. Use your resources appropriately.

Step two

Prepare an investigation plan, following the principles of procedural fairness.  A plan should map out a timetable for the action (see step three) and list who is required to be involved in each step.

Step three

Action the following:

• interview the complainant to ensure you have a full understanding of the allegations;
• inform any respondent about the allegations and that an investigation is underway;
• avoid unnecessary delay.  The investigation should be completed promptly — but not hastily;
• interview any relevant witnesses — remember to ask them: who, what, when, how and why;
• consider all available evidence in an unbiased and impartial manner (if you feel that you are unable to do so, you should ask someone else to take over);
• inform the respondent in writing of any evidence you have found;
• allow the respondent a full opportunity to respond to the allegations and evidence before you make any findings; and
• inform the respondent (again in writing) of your findings.

Step four

At this point your job as investigator is done!  Even though you were the one who completed the investigation, it is not your job to make any decision about disciplinary actions. That role will fall to someone else, based on your (no doubt excellent) investigation report.

Getting a workplace investigation right on the first go can save you and your organisation a great deal of time and trouble later on, as the findings of a faulty investigation can potentially be challenged and overturned in court.

Obviously every investigation will be different, and it can be very difficult to be certain you are taking all of the right steps. For these reasons – and especially where the allegations are of a more serious nature – it may be worth obtaining external legal advice before you start an investigation. In addition to ensuring that you have covered all bases, it may provide you with the protection of legal professional privilege over the investigation report.

Investigations aren’t something that should be made up on the fly.  It’s extremely helpful to have a good plan, and a solid understanding of what’s usually involved in the process of a workplace investigation. With this in mind, ensure you are a good scout before you are required to pull out the magnifying glass, and be prepared!

The post The right way to handle a workplace investigation appeared first on HRM online.

The only thing everyone likes more than a good mystery is finding out the cause or culprit – and everything is revealed. But is every workplace incident, issue and complaint worth investigating? Sometimes, it might be better to just let things be. For example, if the cost of carrying out workplace investigations would greatly outweigh the possible benefits. On other occasions, workplace investigations would almost always be required – for example, if there is a complaint of workplace sexual harassment.

How can you tell whether or not you should be donning your deerstalker and lighting your pipe?

The first key consideration is determining what issues, if any, are actually in dispute. It is not unheard of for both a complainant and a respondent to actually agree on the narrative of what occurred; they might just differ on how those events should be interpreted. Other times, the respondent might actually admit to the behaviour being complained about, and essentially throw themselves before the mercy of their employer, hoping for leniency. In these instances, carrying out workplace investigations might not be necessary or desirable.

Secondly, you should consider how serious the issues in dispute are. You might receive a thousand complaints about differing opinions on, say, what temperature the thermostat should be at — obviously a key issue, but still not worth investigating. Alternatively, a complainant might come to you about a potentially serious issue, such as being bullied by their supervisor. However, they might not wish for you to intervene just yet, as they hope to resolve the issue themselves. And, of course, there will be times where the issues in dispute are clearly serious enough to warrant immediate and extensive investigation.

Finally, consider the business’s duties and obligations under work health and safety laws, workplace policies or otherwise, and determine whether it is necessary to carry out a workplace investigation to meet these obligations.

Generally, we would advise that you err on the side of caution: it is far better to investigate (or ‘inquire’) and attempt to find out what’s really going on, rather than ignore issues that might get worse over time. It is always helpful to discover the underlying causes of any issues in the workplace, as this will allow you to try to resolve any ongoing disputes.

Now that you’ve decided to investigate the mysterious case of the disappearing post-it notes, what should your next steps be? Stay tuned for the next instalment in the workplace investigations saga.

The post When are workplace investigations actually worth it? appeared first on HRM online.

If the average business manager has a bad day, chances are the worst that will happen is more work the next day to make up for it. When HR has a bad day, a range of consequences can unfold. In the past couple of years, workplace investigations have become more common, and HR is usually tasked with carrying them out. However, acting as investigator requires a special skill set, and the untrained HR manager might fall into procedural errors resulting in an unfair dismissal claim – or worse.

More worryingly is the continuing trend of cases where HR managers have been held personally liable as an ‘accessory’ in workplace claims. In 2010, a Sydney HR manager was held liable as an accessory to his company’s unlawful sham contracting activities in a case before the Federal Magistrates Court. In a more recent case, an HR manager was held liable (along with the business) for underpaying wages to employees. These cases tell us there is an expectation that an HR manager will know employment laws and ensure that fair process is accorded to employees during workplace investigations or similar events – particularly when an employee’s job is on the line.

Why are HR managers generally held to a higher standard than other managers? It’s partly due to the role HR plays in business decisions with the potential for legal claims, such as termination of employment. This makes them a target for criticism and opens their actions to dissection before a court or tribunal if a claim is brought, not to mention the HR manager having to give evidence – an experience unlikely to be on anyone’s bucket list.

Here are four areas where practitioners are likely to make HR mistakes, and the steps you can take to protect yourself:

1. Dismissing an employee

HR managers are not expected to be employment lawyers, but they are expected to understand the laws as they relate to serious decisions like dismissal. If there is any doubt about whether a situation justifies dismissal or the process to be followed, HR should consider seeking legal advice.

2. Workplace investigations

Never assume that just because someone is an HR professional, they possess the skills to conduct a proper workplace investigation. Investigations require certain skills (such as interview techniques) and understanding the rules of procedural fairness. If no one in your HR team has the experience and skills to conduct a proper investigation, consider outsourcing to an external investigator to make sure you get it right.

3. Enterprise agreements

In a recent case involving an employer in the mining industry, an HR manager made mistakes in their application to approve an enterprise agreement, which led to the Fair Work Commission refusing the application. This meant the whole bargaining process needed to be repeated. Sometimes it pays to get professional advice if you’re not familiar with a process – at least the first time – to avoid wasted time and money down the track.

4. He said, she said

HR often requires tough conversations with employees on issues including performance management, misconduct or redundancy. Given the potential consequences, good notes of conversations are critical in case an employee chooses to make allegations or bring a claim down the track. If you are doing the talking and can’t take notes, have someone else in the meeting take notes, or be sure to write a full file note as soon as possible after the meeting ends.

Kerryn Tredwell is a Partner at Hall & Wilcox Lawyers.

The post Are you guilty of these 4 big HR mistakes? Here’s how to prevent them appeared first on HRM online.

However, there is one category of employee for whom this can be the worst time of year – the human resources team. The seemingly innocent workplace Christmas party often creates a perfect storm of opportunities for employees to cause serious harm to employers with long-lasting consequences. 

Christmas party nightmares

Consider the following scenarios:

• During his work’s Christmas party, a middle-level manager tells a director of his company to “f**k off” and then later remarks to others around him that “All those board members and managers are f**ked… One of those managers in particular, he’s a c**t”.
• An employee becomes intoxicated during his work’s Christmas party and inappropriately touches four colleagues. He also commits a serious breach of confidentiality by telling another employee she has been unsuccessful in her promotion application.
• A man, at the end of his work’s Christmas party, follows his female colleagues to a bar saying various things to them including “I’m going to go home and dream about you tonight” and “My mission tonight is to find out what colour your knickers are.”

The above are actual examples of employee misbehaviour which were subsequently litigated. As you might have guessed, alcohol was at the centre of each instance of misconduct.

So what was the fallout? In each example, the employees eventually either quit or had their employment terminated. The impact was profound and long lasting, not just on the employees committing misconduct, but also on other employees who were exposed to it. Lengthy investigations had to be undertaken, which took up a great deal of HR’s time. Ultimately, one night of bad decisions resulted in some employees never being able to enjoy participating in their workplace in the same way again.

There are several modern challenges which must be considered by those managing their workplace Christmas function.

Challenge #1: Social media

In the pre-internet age, it was unusual for a person’s out-of-work behaviour to be noticed at work. Social media has made it easier for employers to find records of their employees’ extra-curricular activities. It has also made it easier for employers’ reputations to be damaged by employees’ online activities. Disgruntled employees now have a broad platform from which to air their views. In one case, it was drawn to a company’s attention that one of its employees had posted on Facebook “I wonder how work can be so f**king useless and mess up my pay again. C**ts are going down tomorrow.” Unsurprisingly, the management found this to be threatening and derogatory and the employee lost his job.

The employee brought an unfair dismissal claim against his employer. However, the employer’s decision to dismiss was upheld. This was despite the fact that the employee had posted the comments on Facebook while at home and outside of working hours. According to the court, the fact that the employee’s work colleagues were able to view his abusive Facebook posts was grounds enough to justify the employee’s dismissal.

However, the employer still had to deal with the damage done by the employee’s conduct and relevant managers were concerned that their reputations had been damaged by the comments.

It is easy to see the potential damage social media can cause, especially when it is all too easily accessible for employees who have drunk too much at their workplace Christmas party. Any consequential photos or comments which are posted can have significant negative impacts on both the employees making the posts, other colleagues reading the posts and on the employer.

Challenge #2: Where does ‘the workplace’ end?

It is tempting for HR to consider their job to be finished after the music is turned down and the lights are switched off. Unfortunately, it has been found in several cases that employees’ misconduct can still be considered to be within the workplace, even if it occurred outside the four walls of the office.

In one case, a pilot’s misconduct was found to have occurred in ‘the workplace’ after he fondled a female colleague’s breast while in the taxi returning to his employer-provided accommodation. In another case, an employee’s groping of a waitress’ bottom while eating and drinking at a hotel was found to have occurred in ‘the workplace’ as the employer had an established, ongoing relationship with the hotel and regularly booked rooms for its employees there.

An employer cannot assume that ‘the workplace’ has a narrow definition. Employees and their employer can potentially be held liable for their actions both during official workplace Christmas functions and also in the hours which follow.

Challenge #3: Who should be in charge of the responsible service of alcohol?

Companies often book an external venue for Christmas functions. Usually, when this is the case, part of the agreement between the company and the external venue is that the venue will be responsible for the responsible service of alcohol.

HR should not be fooled into a false sense of security. In a recent case, an employee’s misconduct following a Christmas party was found, in part, to have been caused by his employer’s failure to monitor his consumption of alcohol, even though the employer had arranged for the external venue to have this task.

How you can prepare for your Christmas function

The following strategies, while they cannot guarantee an incident-free function, should help minimise the risks.

• Review your company’s policies to ensure that the expected standard of employees’ behaviour inside and outside ‘the workplace’ is clearly set out and that there is an appropriate and thorough disciplinary procedure in place. The policies should also make it clear that behaviour which may damage the employer’s reputation, even if this behaviour occurs outside the workplace, may still be subject to disciplinary action.
• Employees must be thoroughly trained in the relevant policies, including disciplinary policy and procedures, particularly the people who are responsible for managing out of hours functions.
• Ensure that there is some form of monitoring of employee alcohol consumption and behaviour at workplace functions. Don’t leave the responsible service of alcohol and the supervision of your employees at work functions to the venue’s hosts.

To read more about human resources legal issues, visit our legal page. 

This article is an edited version. The full article was first published in the November 2015 issue of HRMonthly magazine as ‘Laughs, lust and legal action’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here. 

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When someone comes to you with an accusation of bullying or harassment, it’s your duty to conduct a workplace investigation. Here are seven steps to take to make sure the process is thorough, fair and transparent.

Check back for more advice on how to handle HR’s most common legal concerns. In the meantime, if you have a legal quandary or quick question, check out Hannah’s blog here, or tweet @theworkplace_au.

Check out AHRI’s social media pages on Twitter, LinkedIn and Facebook for more. And don’t forget to follow HRM’s editor Amanda Woodard on Twitter @HRMeditor for updates about what’s happening in the HR industry around Australia.

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For example, an employer’s disciplinary process may lead to a constructive breakdown of employment if it puts the employee’s health and safety at unacceptable risk, or exposes the person to unreasonable reputational risk due to lack of confidentiality. This may be the case if the process is unfair or prolonged, or otherwise conducted in an unreasonably aggravating manner.

In Goldman Sachs JBWere Services Pty Ltd v Nikolich in 2007, the Federal Court ruled the employer’s delay in taking appropriate steps to deal with alleged workplace harassment and bullying amounted to a breach of the employer’s obligation to maintain a safe and healthy work environment.

A breach of this obligation would entitle employees to consider themselves to be constructively dismissed.

In the case Harley v Aristocrat Technologies Australia Pty Ltd in 2010, an executive claimed she was forced to resign because of the employer’s failure to properly investigate bullying and harassment complaints. Instead of trying to resolve the complaints, the employer instituted a performance management process, which the tribunal ruled was unjustified.

The employer was found to have initiated the unfair termination of employment. The claimant was awarded compensation of six months’ pay.

A disciplinary process itself may also be considered workplace bullying under the new anti-bullying scheme in the Fair Work Act 2009, if it’s judged to cause a safety risk. This can be avoided by informing a worker about inappropriate behaviour in an objective and confidential way.

How to manage bullying allegations

HR practitioners can use this checklist to ensure they’re handling allegations of misconduct fairly, thereby avoiding the risk of constructive dismissal.

Natural justice

Design a process to give the accused employee sufficient information about the allegations and a fair opportunity to respond. If the employee would prefer to provide a written response, this should be allowed.

Suspension

Suspend the accused employee only if the allegations are sufficiently serious, the employee is likely to interfere with any investigation, or the employee’s presence in the workplace may cause harm to the business. A suspended employee must receive full pay during the suspension unless the legislation or an enterprise agreement says otherwise.

Independence of the investigator

The person tasked with determining the allegations must be able to act fairly and impartially.

The accused must cooperate

Generally, an employee must cooperate with the investigation in a timely and constructive way. Failure to do this may be considered misconduct in itself.

Don’t delay

The investigation should not be unduly protracted, to avoid stress for all parties involved.

Respond to findings appropriately

The person who determines the action to be taken should not prejudge the outcome of the investigation and should seek a response from the accused about the findings before making a final decision.

This article is part of a four-part series on constructive dismissal. Keep reading about constructive dismissal, bullying and performance management. 

This article is an edited version. The full article was first published in the October 14 issue of HRMonthly magazine as ‘’Dealing with discipline’. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.

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