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.
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.
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.
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.
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.
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.
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.
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.
This article includes information from the following sources: