When conduct that breaches a workplace policy occurs, a fact-finding workplace investigation can help you to determine what further actions are required. If you’re unsure if a complaint or issue in your workplace warrants a formal investigation, here are some examples of common scenarios where an investigation could be worthwhile.
Discrimination
Not all discrimination is unlawful. For example; a bouncer at a nightclub can refuse you entry if you don’t meet their dress code. However, if the bouncer refused you entry because of a personal characteristic that the law deems ‘unlawful’ then that could be considered ‘unlawful discrimination’.
In a workplace, being discriminated against means that an employer takes an adverse action against you because of one of the following attributes: race, color, sex, sexual orientation, age, physical or mental disability, marital status, family or carers responsibility, pregnancy, religion, political opinion, national extraction or social origin.
Discrimination can also occur at any stage within the employer/employee relationship, including during the recruitment process, when offering opportunities for training or promotion, or when selecting candidates for retrenchment or dismissal. It includes full time, part time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks.
The Fair Work Commission clarifies an adverse action as; an action that is unlawful if it is taken for a discriminatory reason. The Fair Work Act 2009 (FW Act) describes a number of adverse actions.
Adverse action taken by an employer includes doing, threatening or organising any of the following:
- dismissing an employee
- injuring an employee in their employment
- altering an employee’s position to their detriment
- discriminating between one employee and other employees
- refusing to employ a prospective employee
- discriminating against a prospective employee on the terms and conditions in the offer of employment.
A case study:
You have recently employed someone from who is a Muslim. They have requested to have Fridays off to exercise their right to prayer. You have agreed. They have then complained to you that conducting the senior staff meeting on Fridays is discrimination and requests that you change the day of the meeting. You refuse. The meeting has been held on Fridays for over two years, it is online so that all staff across Australia can attend, the employee can review a recorded copy of the meeting and contribute to items by proxy. The meeting is also held between 9 – 11 am and the employee can attend from home if he wanted to.
Question: Is this likely to be discriminatory?
A case study:
You have recently employed someone from who is a Muslim. They have requested to have Fridays off to exercise their right to prayer. You have agreed. They have then complained to you that conducting the senior staff meeting on Fridays is discrimination and requests that you change the day of the meeting. You refuse. The meeting has been held on Fridays for over two years, it is online so that all staff across Australia can attend, the employee can review a recorded copy of the meeting and contribute to items by proxy. The meeting is also held between 9 – 11 am and the employee can attend from home if he wanted to.
Question: Is this likely to be discriminatory?
Ultimately is it up to the Commissions and Tribunals to make a decision on this. However, as an employer you would need to ask yourself; has the employer taken an adverse action against the complainant? And, if so, is that adverse action based on an unlawful attribute? You would need to be able to articulate the reasons for your decision and any further actions that you take and this is where you would rely on your fact-finding investigation. If, after your investigation, you find out that the meeting was actually always held on Tuesdays instead of Fridays and it only recently changed after the employee’s request, would that change your mind? This is why it is always important to have a robust workplace investigation that you can rely on to make good decisions.
Sexual Harassment
Workplace sexual harassment can attract various penalities under federal, state and territory laws. The laws can apply to both companies and / or individuals for breaches.
In Australia, the penalty for unlawful discrimination can be up to $63,000 for corporations and $12,600 for individuals and the court may impose other orders for injunctions, reinstatement and/or compensation[AF1] .
Allegations of sexual harassment are serious. Where an accusation is made a formal investigation by a skilled and experienced investigator is recommended.
Employers must consider: internal policies and procedures, state workplace health and safety legislation, state anti-discrimination laws, federal human rights and equal opportunity laws and federal workplace laws.
The legal test for sexual harassment in the federal Sex Discrimination Act has three essential elements:
- the behaviour must be unwelcome; unwelcome conduct is conduct that was not solicited or invited by the employee, and the employee regarded the conduct as undesirable or offensive
- it must be of a sexual nature;
- it must be such that a reasonable person would anticipate in the circumstances that the person who was harassed would be offended, humiliated and/or intimidated.
A complaint of sexual harassment will not necessarily be dismissed because the person subjected to the behaviour did not directly inform the harasser that it was unwelcome. However, there does need to be some indication from the person’s conduct or the surrounding circumstances that the behaviour was in fact unwelcome.
A case study:
The person works in a large restaurant in the kitchen. She primarily is responsible for supporting multiple chefs by dish-washing and preparing food. She works at shared workstations. At those workstations are photos and calendars with nude pictures of women in various positions. She is offended by these pictures and has voiced complained to anyone who will listen on multiple occasions. She states that they have dismissed her concerns and state that it is ‘art’. She then engages in a campaign of graffitiing the ‘art’ by placing various food products over the offensive body parts and states that her manager is now threatening to sack her if she continues to interfere with the pictures.
Question? Could this constitute sexual harassment? And who is the harasser? A workplace investigation will help you isolate what happened and who was involved to help you make good decisions that are not only compliant but will improve the overall workplace culture.
The Australian Human Rights Commission has held that in some circumstances, a working environment or workplace culture that is sexually permeated or hostile may also amount to unlawful sexual harassment. A sexually hostile workplace is one in which one sex is made to feel uncomfortable or excluded by the workplace environment, by, for example, persistent comments in a male-dominated workplace that women do not belong or by display of sexual material. This approach to sexual harassment first emerged in Bennett v Everitt where it was held that “[a]ll employees have a right to employment without sexuality or attempts at the introduction of sexuality, either direct or indirect.”9
Bullying
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.
It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.
Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.
Some examples of workplace bullying include:
- abusive or offensive language or comments
- aggressive and intimidating behaviour
- belittling or humiliating comments
- practical jokes or initiation
- unjustified criticism or complaints.
Employees who have been on the receiving end of this type of behaviour could experience symptoms such as anxiety, depression and other physical side-effects. In some cases, it can even lead to an increased risk of suicide.
Workplace bullying can result in a breach of state or territory workplace health and safety (WHS) laws which all businesses have an obligation to comply with.
For employers, the consequences of inaction are significant. Failure to take steps to manage the risk of workplace bullying can result in a breach of WHS laws. In Heads Up (an initiative developed by Beyond Blue focused on creating mentally healthy workplaces) estimates that workplace bullying costs Australian organisations between $6 billion and $36 billion per year when considering everything from lost productivity, increased absenteeism, poor morale and time spent documenting, pursuing and defending claims.
Reasonable management action taken in a reasonable way is not workplace bullying. Differences of opinion and personal disagreement are not generally considered workplace bullying.
Conducting workplace investigations is an integral part of a robust strategy to design safe workplaces. It means that workplaces take bullying allegations seriously, and it will encourage disclosures as well as deter mischievous or vexatious complaints from being made.
Case Study
Lacey and Kandelaars v Murrays and Cullen
The two applicants were bus drivers and each made an application for an order to stop bullying by their Manager. They alleged that the behaviour engaged in by their manager was unreasonable, including:
- finding fault with work where there was none
- raising his voice and being intimidating and turning red
- hiding in buses in order to frighten the second applicant
- directing the second applicant to inaccurately fill out his logbook in contravention of fatigue laws, and
- acting in a confrontational manner with the first applicant.
In total 12 bus drivers, including the applicants, gave evidence complaining about the Manager’s behaviour. The Commissioner found that the Manager had engaged in repeated, unreasonable behaviour and that behaviour created a risk to health and safety. The Manager had bullied the applicants. However, the Commissioner declined to issue an order to stop bullying. He considered that, as the employer had changed the reporting lines so that the applicants would not be directly managed by the Manager, they would not be at risk of bullying continuing. Further, he also considered that the finding of bullying itself would ‘be sufficient to protect Mr Lacey and Mr Kandelaars from the risk of further bullying’.
How to start an investigation
While a business can elect to conduct an investigation internally it may backfire where there are perceptions of bias, and / or where the person appointed does not have the requisite skills or experience or time to conduct a thorough investigations. Additionally, they may not want to be an investigator where they are responsible for making decisions after findings have been made. There are several benefits to appointing an independent investigator. Experienced Emverio Workplace Investigators are well-equipped to manage every stage of the process. They will remain impartial and apply the principles of procedural fairness throughout the investigation.
At Emverio Workplace Investigations we follow a carefully developed best-practice methodology to investigate a range of issues relating to employee conduct including complaints about discrimination, sexual harassment, bullying, fraud and other misconduct. Your investigation will be conducted promptly, impartially and professionally in consultation with you so that you are able to make robust decision based on fact.
To find out more or discuss your requirements, contact the team at Emverio Workplace Investigations.
This article includes information from the following sources:
- Australian Fair Work Ombudsman, “Workplace discrimination” – https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/workplace-discrimination#what%20are%20the%20remedies%20or%20penalties
- Australian Human Rights Commission, “Sexual harassment” – https://www.humanrights.gov.au/quick-guide/12096
- Australian Human Rights Commission, “Workplace harassment, discrimination and bullying” – https://www.humanrights.gov.au/our-work/employers/workplace-discrimination-harassment-and-bullying
- Heads Up, “Workplace bullying” – https://www.headsup.org.au/supporting-others/workplace-bullying
- Business.gov.au, “Employees and conflicts of interest” – https://www.business.gov.au/People/Managing-and-developing-staff/Employees-and-conflicts-of-interest
- The Fair Work Commission
- Safe Work Australia
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