When Human Resources is Corrupt

Why it Matters in the Seismic Industry

'Corruption: dishonest or illegal behavior especially by powerful people.' ~ Merriam-Webster

'Oh, what a tangled web we weave…when first we practice to deceive.' ~ Walter Scott


What happens when human resources is corrupt?

During a down cycle in an industry, and amid times of economic uncertainty especially, corporate human resources (HR) departments can hold substantial influence over personal lives. With such influence also comes the opportunity to abuse power and wield such influence in nefarious ways. As a scientist for the majority of my career, HR served as an innocuous backdrop. HR collected my timesheets, distributed payroll slips, insurance and pension optimization plan information, and they filed assessments conducted by my supervisors. In the article, Why the Path to Ethics Starts with Human Resources, author Chris MacDonald states that HR is ground zero for company culture. I agree.

HR publishes company policy, values, and procedures. However, my benign impression of HR was completely transformed through the experience with a past employer. Since then, I have read extensively about HR, including accounts of HR behaving badly, which opened my eyes. I have come to the conclusion that, fundamentally, HR functions to support the organization hierarchy. An HR which supports the organization hierarchy is not too surprising and is as it should be. If the hierarchy is fair and honest, so too is HR.

Conversely, however, if the hierarchy is corrupt, then so too is HR. A corrupt HR is used to purge the ranks from power liabilities, such as the honest up-and-comer on a top manager’s coat tails, or any honest person too close to the truth, such as a whistle blower, or a bully target who challenges managerial competency and integrity.

HR does not have the power to displace the corrupt hierarchy that employs them. It should be relatively simple for an ethical hierarchy to rid themselves of a knave employee. Corrupt hierarchies are regimes who conspire, cooperate and protect one another. Fundamentally, workplace bullying is the abuse of power. Abuse of position is a category of fraud, as are false representation and withholding of information, which are all usually associated with fiduciary malfeasance, rather than the misuse and abuse of human resources.

I believe that bullies are not individuals, but regimes supported by an organization’s formal power structures. HR will shield managerial corruption and incompetence and use their legitimate guise to extricate threatening (to the corrupt or incompetent hierarchy) personnel. Within unethical and toxic organizations, a corrupt HR is empowered and enabled as the enforcer to protect the company proverbial cosa nostra. In fact, for corrupt organizations, a corrupt HR is practically essential.

For me, this prose is personal.  However, what I have learned is that it shares an all too common theme for many disenfranchised workers who take stands against unprincipled work practices.  It is the reasonable people who are often made out to be unreasonable.  I wrote about how I came to discover, and know with certainty, about the unethical practices of my former employer in the LinkedIn Pulse article, An American, the UK Data Protection Act, Petroleum Geo-Services and the Tyranny of “Accurate Data.”   
[Note: Linkedin removed original Article by Steve Kalavity: https://www.linkedin.com/pulse/american-uk-data-protection-act-petroleum-tyranny-steven-kalavity?trk=pulse_spock-articles]
 
As an American working in England, my former marine seismic company employer’s HR manager had the brazen audacity to create and retain an entire mythology of my work history. I suppose it is because I upset the hierarchy by essentially saying “enough is enough.”  Without my knowledge, and in spite of several requests for more substantive information, the HR Manager compiled a collection of unsigned, falsified, and forged documents which he had the imperiousness to call my professional personnel file.

Because it is my belief that these falsehoods have been shared throughout the HR back-channels, as I cannot conceive of any other utility for them matching his character, I brought my knowledge of these activities to light.  There would be absolutely no advantage for me to publish ungrounded allegations of a former employer.  However, I feel that I need to write about my experience to defend and preserve my personal dignity and reputation for myself and my family, as well as enlighten the broader community.  I am determined to challenge the false narrative economically focusing on the truth rather than addressing damages in English court.  Such a challenge would be time consuming, expensive, and logistically difficult. 

Also, to prove the points to any (uncertain economic) benefit is not my priority so much as the truth of the matter.  However, it would be impossible for my previous employer to prove otherwise.  Nonetheless, the false documents and/or contents mentioned are in my possession, as well as have been shared with UK and Norwegian government compliance organizations, if they so choose to investigate compliance to their national laws and acts.  Truth has patience.

I never wonder to see men wicked, but I often wonder to see them not ashamed.   ~  Jonathan Swift  The reason that it is important to bring attention to the iniquitous behaviors of employers within the seismic industry, or other sectors for that matter, is because nothing is done in isolation.  The companies, employees, and communication channels are all connected.  When companies decide to pollute their company records, and the marine seismic and larger geophysical community or sector, with false information about ex-employees, it serves only the self-interest of incompetent or corrupt leadership.  When high level executives cooperate to use the financial leverage provided from customers, shareholders, and other employees to make challenging wrong-doing exceptionally difficult, these decisions devalue every aspect of a company.  Should management be able to vilify me, or other employees, professionally when the company top executives are the ones who lie and malign?

It is those who lack the courage to abide by the policies which they articulate, who deceive, withhold, and then falsify documents who are the ones that should be ashamed.  And it should be the company and its executives who condone such egregious practices that should be out of work, and not the targets of abused power.  That is how business should work.  I am directly familiar with the events which have affected me personally.  However, the culture and character of the organization hierarchy suggests that I was likely not the first person to be the target of such abominations.  From my review of literature, this behavior is not exceptional – unfortunately – and transcends sector and industry.

This is the same culture and character which makes decisions about how to handle other employees concerns contrary to their own policies and which also forms decisions about who is to be retained or made redundant in a down cycle.  This same culture and character form several other “strategic” business decisions, up through preparing and signing multi-million dollar contracts with oil and gas license operators.

If senior management is willing to conspire, lie, and falsify documents to deal with what should be a relatively simple problem to control or solve, had they only effectively applied their own policies and been responsible, what would keep any company from corrupting the outcome of other unfavorable health and safety or other controversial information?  Should we be resigned to allow such companies to just change the rules whenever they cannot “win” on their terms?  It is all connected.  The problem is that such behaviors are all too common today globally, and it has impact on the greater global economic culture of business. 

Cheaters are holding onto their jobs, even being further rewarded, while honest, capable and committed workers are losing their jobs and livelihoods directing the sector on the wrong course by use of a broken moral compass. Corrupt organizational hierarchies are making bad business decisions and then using HR to formally facilitate personnel actions to hide their incompetence.  This reality negatively effects quality, health and safety, and the environment.  It impacts employees, customers, and investors.  It effects the entire seismic industry and beyond, and it needs to be stopped.  Hopefully, informing business sector stakeholders will facilitate this change.

With most people disbelief in a thing is founded on a blind belief in some other thing. ― Georg C. Lichtenberg

I never thought that I would ever work under such dishonest and manipulative management hierarchy as I did.  I worked within the contract sales group in England concentrating on Africa projects.  When I voiced health and safety concerns and believed that I was being bullied by my boss, management’s reaction had me in disbelief.  There is a lot of literature about workplace bullying and it is not an altogether exceptional issue to come across these days.  In fact, it is a serious issue mentioned within the company handbook as something that is not tolerated.  Countries are passing workplace bullying legislation affecting global workplaces.  One would think (or hope) that high level human resource professionals and executives would want to be in tune with this knowledge and possess the acumen to listen and address such concerns professionally and be able to arrive at some mutually advantageous solution if such issues arose.

After all, stress, harassment and bullying are the most highly ranked workplace hazards within the UK, where I was working.  I was not actually familiar with the term “workplace bullying” until I started to try and put a name on the unreasonable and derisive management practices which I was enduring.  The silence, misinformation, and deception all around me was the most difficult part to absorb.  My direct interaction with human resources throughout my career had been minimal until my England assignment.  I had never experienced anything close while working for the U.S. Department of Defense where keeping information secret was in fact part of the team’s job.

To make a long story short, it was never officially resolved whether I was bullied.  But, it was neither resolved that I hadn’t been bullied.  We agreed to part ways.  I wanted to leave the inhospitable and uncomfortable situation behind me, and so I moved back to America, along with my family.  Top management had done just about everything possible to avoid dealing with the issue directly.

Over time, what I have become completely certain of, in my case, is that the HR manager responsible for compiling my file is a liar and a coward.  However, his actions were wholly empowered and supported by top management, who apparently share his level of character.  The senior vice president of HR and current executive vice president of operations, who reside at the parent company headquarters in Norway, created and signed a forged memo which was added to my professional personnel records.  The memo presented false assertions that a conclusion regarding my bullying issue had been reached.  In fact, nothing could have been further from the truth.  This high level power team demonstrated no interest in dealing with my issue on a professional level according to the company’s policies and procedures. Yet, they continue to project a narrative where they essentially won the argument.  This is unacceptable.

Through all of this, they were in fact willing to endanger my health and well-being to maintain and project authority.  There was never an interest for an objective review of the situation and no dialogue.  I would have never brought-up such mistreatment and company departure from process and procedure at such a high level without some chronicle of reasons or episodes to support my claims.  There was plenty of information presented that the senior management team could have reasonably considered and reported on.   During the same period, management requested an independent report from an occupational health professional.  I discovered it through a separate Data Protection Act 1998 (DPA) subject access request.  

The senior management knowingly withheld this report from me while I was employed and considering my exit.  They also responded to me and the compliance agency that such a report was never provided to them when I made my subject access request.  They had lied to me and likely to the compliance agency.  I believe that management took advantage of the fact that I was from America and required company sponsorship to remain in determining how to address my issue.  Management colluded to make my work conditions more unbearable so I would not want a prolonged confrontation and have to remain in England any longer.  They were correct that I did not want to stay in England surrounded by such dishonest and manipulative hosts.  They used this to their advantage as they averted protocols and delayed decisions until I finally agreed to leave and not press the issue any further.  And then top management had the false narrative follow me to America polluting the seismic industry community.  They were likely surprised by my DPA subject access request.

The senior management completely abrogated their responsibility as prescribed in policy.  They demonstrated no leadership or ability to discuss difficult issues whatsoever.  Instead, they created falsified documents to form a suitable written mythology to place into my personnel file.  Through guidance and cooperation from the company top executives, HR changed dates and left out or embellished events – the entire history of my final months of employment – to make things appear as though some semblance of policy and procedure was followed when it was not.  They left out any of my disagreements to their unsubstantiated narrative leaving a completely one-sided –false – narrative.

This shameful behavior was not only supported, but rewarded during a year with reduced earnings.  Since shedding light on my circumstances, high level scientists working for my former employer and anonymous others have viewed my LinkedIn profile.  I have encouraged the identifiable one’s to look into my file and check my personnel file and claims for themselves.  People of honor would want to defend their character.  
[Link: https://www.pgs.com/Pressroom/Press_Releases/Petroleum-Geo-Services-ASA--Implementation-of-2015-Employee-Long-term-Incentive-Plan-/ now found in Archive:
https://web-beta.archive.org/web/20150623063426/https://www.pgs.com/Pressroom/Press_Releases/Petroleum-Geo-Services-ASA--Implementation-of-2015-Employee-Long-term-Incentive-Plan- ]

Expectedly, there has been no response, only the typical silence and avoidance from confronting truth.  Apparently, it was not enough for the hierarchy to take away my career, they also wanted to steal my identity and rewrite history so that it should be difficult that I ever have one again.  This tale of events would have never been shared had I not come to discover the true hubris and vindictiveness of my former employer’s senior management through a UK Data Protection Act 1998 subject access request.  Without the leverage of certainty, I would have never known without doubt the distortions and would have been obliged to silence assuming accurate records, as both the DPA and ethical practices require, were being retained.


 It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently. ~ Warren Buffett
 
My narrative, while unique, is not altogether exceptional.  Change the company and some particulars, and the behaviors and character of how issues of bullying and whistle-blowing are dealt with have a common theme.  Power structures will align themselves and protect their domains by all means.  Fairness is a side issue only read about in HR columns removed from the real world.  We find trust in business relationships at an all-time low, while management hubris and abuse of positions seems to be at an all-time high. Why?  The common reaction to those who expose corruption or management incompetence is to purge the messenger.  Management will conspire to lie, cheat, and yes, endanger worker lives, to maintain their power and position. 

Psychologists David DeSteno and Piercarlo Valdesolo conducted several experiments showing time and again that 90% of people – mostly of whom identify themselves as morally upstanding – will act dishonestly to benefit themselves if they believe that they will not be caught.  Further to this, people will rationalize their own dishonesty while condemning the dishonesty of others.  In other research by Paul Piff, it was found that with increased power and status there is a decrease in honesty and reliability.  Psychologist Robert Feldman believes people are motivated to lie not necessarily to impress others, but to maintain a view of themselves consistent with the way that they want others to view them. 

In the workplace, self-esteem and threats to the executive’s sense of self are drivers for lying.
Executives want to look good in the company and this is closely tied with the fact that people appear to be short-term focused when they decide to deceive someone.  While individuals work to sustain their self-image and self-worth in the short term, if the deceived individual finds out it can have long-term consequences.   I hope that this is what is happening now.  Within an organization with a fair and ethical management system, if managers have the legitimate formal power, along with the appropriate processes to handle employee issues, there would be no need to risk lying and damaging the organizations reputation. 

According to research cited by consultant and speaker Margaret Heffernan, 85% of surveyed US and UK executives avoid dealing with issues that might provoke conflict.  These executives did not want to be challenged because they were afraid to get embroiled in arguments that they did not know how to manage, and felt that they were bound to lose.  Couple this with a propensity for high-level executives to preserve their self-identity through lying and many events become easier to explain, while not necessarily easier to accept.


Human resources is too often used as a punitive function to protect and hide organization leadership and managerial corruption and incompetence. This negatively impacts and corrupts the entire organization culture.  This results in sub-optimal organization and system performance in all areas impacting quality, health and safety, and environment.  Organizations who misuse the human resource function blemish the majority of honest and competent HR professionals and the positive contributions that they can provide to organizations when counseled properly. 

When a positive work culture is allowed to be destroyed from within and hijacked by management of misrepresentation, blame, and distortion, then employees, customers, and shareholders, as well as the entire industry pay the price.  When top managers are not obliged to follow the policies and values that the company advocates, these counter-cultural norms are then embraced to form a debased work culture.  In the modern business environment, we are all connected in some way.  Human resources is the center of organization culture.  Human resources articulate and publish company values and policy for common understanding.  How companies deal with workplace conflict, such as claims of harassment, bullying, discipline and grievance processes, etc. is a much better measure of company culture.  How these events are recorded and resolved along with third-party survey data would provide more information than a company’s printed mission statements and values to license operators who contract them.  Gauging contractor cultures compatibility with operator cultures will also reduce project risks. 

Many business and project failures are due to incompatible work cultures working ineffectively toward incongruent objectives.  As it was written, the path to ethics starts with human resources.  It often ends there too.

You may choose to look the other way but you can never say again that you did not know. ~ William Wilberforce

Source: http://linkis.com/nopgs.com/psUZT


'Great Spirit' - Nahko and Medicine For The People

Workplace bullying – a problem for employer and employee alike

On 21 February, the government ran an advertisement in a Sunday newspaper, encouraging employers to visit its website for free employment advice on preventing workplace harassment and violence. It seemed almost too ironic then, when Christine Pratt, chief executive of the National Bullying Helpline, went public with allegations that No 10 staff had phoned the charity for advice about bullying.

The row erupted after allegations in a book by the Observer's chief political commentator, Andrew Rawnsley, in which he discussed Gordon Brown's behaviour towards staff. Although employers of all shapes and sizes are familiar with the issue of bullying, it rarely hits the headlines. But against the backdrop of a fast-approaching general election the issue is gathering momentum.

Forms of bullying

A 2009 Unison survey suggested that bullying at work has doubled in the past 10 years, with one in three staff surveyed claiming to have been bullied in the previous six months. The most common forms of bullying included excessive monitoring and criticism, exclusion and isolation, intimidation, public humiliation and being treated in a rude and disrespectful manner.

I have seen a number of cases where managers have belittled employees in front of colleagues, set unreasonable targets, and in recent times used e-mails and text messages outside office hours to put pressure on particular individuals.

Claims at employment tribunals

Employees who have been subjected to bullying by a work colleague, often by someone in a senior position, can bring claims for bullying or harassment at an employment tribunal. Now is probably not the time to remind the government that, despite calls from businesses, there is no fee payable for pursuing such legal claims. In fact, individuals can easily launch legal proceedings by filing a claim online.

An employee who has been bullied may, if they have completed a year's employment with their employer, resign and claim constructive dismissal - effectively arguing they have been forced out of their job by unacceptable behaviour. In such cases they could recover compensation of up to £65,300. In addition, the employee may suggest that the bullying behaviour has been based upon, for example, their race, sex, age, sexual orientation, religion and/or a disability.

Such conduct can amount to unlawful discrimination, unlawful harassment, or both - and in those cases the employee isn't even required to have completed a year's employment. The individual can remain on the payroll, leaving the employer with the somewhat difficult task of continuing to employ the person while at the same time defending a claim that they have made against the business.

The employee, meanwhile, can not only name the employer as a respondent to the tribunal proceedings but can also name the individual who bullied them. That individual could ultimately be found liable to pay compensation to the employee.

Adverse publicity

It is worth remembering that tribunal hearings are held in public and regularly attract the attention of the press. Such adverse publicity can be extremely damaging for any business, particularly at a time when many are under significant economic pressure.

Minimising bullying

To minimise the risk of bullying, employers should encourage appropriate behaviour from all employees in the workplace. They should not tolerate unacceptable conduct, should address complaints promptly and appropriately, and should provide reassurance to potential victims that concerns will be taken seriously.

Some companies encourage the use of free helplines such as the National Bullying Helpline, which provide confidential support for employees who have problems either within or outside of the workplace.

Since her original media appearance, Pratt's stance has changed a little, but it remains the case that the confidences of the employees concerned have been broken.

Helplines of this sort succeed on the basis that employees are reassured that the matters that they raise will be treated in confidence.

Anyone who manages people should remember that there can be a very fine line between being 'demanding' and being a 'bully'.

source

Further reading:

How to deal with bullying and harassment in the workplace

Bullying needs to be tackled head-on

LEGAL - Discrimination and Victimisation soon to be "adverse action"

Key Points:

New adverse action provisions give rise to the potential for alternative claims beyond those traditionally found under the anti-discrimination jurisdiction.

From 1 July 2009, national system employees and employers will have the ability to bring adverse action claims under the Fair Work Act 2009, including in respect of claims of discrimination and victimisation in employment. While it has always been unlawful to discriminate in employment under the Workplace Relations Act 1996, traditionally such claims have tended to be brought under the relevant State or Federal anti-discrimination legislation where specific processes and remedies, underpinned by separate tribunals (or commissions) exist.

The extent to which employees will make use of the new expanded "adverse action rights" and bring claims under the Act instead of the relevant State anti-discrimination Tribunal remains to be seen. Employers however, need to be aware of the concept of "workplace rights" and what can constitute adverse action under the Act.

Under the new general protection provisions in the Act, employees and employers can bring an "adverse action" claim where a workplace right has been breached or is threatened to be breached. A "workplace right" is defined in the Act to encompass:

• an entitlement, benefit, or responsibility under a workplace law, workplace instrument or an order made by an industrial body (such as the Australian Industrial Relations Commission or Fair Work Australia (FWA));
• initiation or participation in, a process or proceedings under a workplace law or workplace instrument (including, but not limited to, a conference before FWA, court proceedings, protected industrial action, appointing a bargaining agent, making a request for flexible working arrangements or dispute settlement); or
• making a complaint or inquiry to a body having capacity to seek compliance with a workplace law or workplace instrument. This is broad in its application and extends to the ability to make a complaint to the person's employer, FWA, or a union.

The circumstances in which an adverse action can be said to be taken against another person are very broad, and can include dismissing an employee, injuring or altering the position of an employee to his/her prejudice, or discriminating between the employee and other employees.

The anti-discrimination claim

A recent case in the Queensland jurisdiction can illustrate how a set of circumstances ordinarily giving rise to a victimisation claim under anti-discrimination laws, might apply as an alternative adverse action claim for a breach of a "workplace right" under the new legislation.

In the case of VN v MP, KP, K t/as P, and DS [2009] QADT 1 (13 January 2009), the complainant made a complaint to the Queensland Anti-Discrimination Tribunal after her employment was terminated because of a sexual harassment complaint made against a floor coverings company and its directors.

The complainant, a female salesperson, had complained that she had been sexually harassed by each of the two directors of the company (a married male and female) and by a male floor covering installer while employed by the company.

The male director of the company terminated the salesperson in November 2004, believing that he had a right to do so because she had made a sexual harassment claim against him.

In addition to the claim for sexual harassment, the complainant alleged victimisation for a number of reasons including the termination of her employment. She further alleged that the company was vicariously liable as the acts of sexual harassment and victimisation had occurred at work.

The complainant claimed damages and compensation arguing that she had suffered emotional trauma, weight loss, difficulties in personal relationships and insomnia as a result of the harassment. She also claimed lost wages, and money for use of the company car which she claimed formed part of her remuneration package.

Having weighed up the evidence, the Tribunal ultimately held that the complainant had not been sexually harassed by any of the respondents, and dismissed that aspect of the complaint. Further, all of the complainant's allegations of victimisation, other than for the termination of her employment for bringing the sexual harassment claim, were dismissed.

However, the Tribunal found that the victimisation charge was made out against the male director, who was found to have terminated the complainant's employment because she had made allegations of sexual harassment against him.

In relation to victimisation, the Tribunal stated:

"it is not necessary for the complainant to establish that the matter was the sole reason for the detrimental conduct, rather, the complainant must establish that the matters were a substantial reason for the detrimental conduct".

In this case, although the Tribunal acknowledged that there had previously been warnings given to the complainant regarding her dress, excessive use of work telephone, inappropriate language and divulging confidential information, the primary reason for the termination of the complainant's employment was her allegation of sexual harassment. Termination of employment under the Queensland Anti-Discrimination Act clearly satisfied the "detriment" requirement of the legislation, as the complainant suffered loss as a result of the loss of her job.

The company (found to be vicariously liable) and the male director were ordered to pay the complainant a total of $200 in damages for victimisation, while both parties were ordered to pay $1,040.00 in lost wages.

The alternative claim

If the facts of this case were to be presented under the auspices of the Act, notwithstanding the fact that the allegations of sexual harassment may have ultimately be found to have been erroneous, it is conceivable that the complainant would have grounds to commence an adverse action claim under the Act for the detriment she suffered by making the sexual harassment complaint.

The circumstances of the case give rise to a relevant "workplace right" (by reference to the an entitlement or obligation under anti-discrimination law) and a detriment has taken place (that is, termination of the employment).

Accepting an alternative claim available, such a complainant would have access to remedies that are broader in scope than that traditionally available under anti-discrimination laws.

Under the new laws, where an adverse action claim is made, it will be generally be dealt with at first instance by a Fair Work conference. If the conference does not resolve the dispute then the employee may proceed to run a case either in the Federal Magistrates Court or Federal Court. It is important to note that an application must be made within 60 days of the dismissal, although FWA will have discretion to accept an application lodged out of time.

Yet, it is not only in instances of termination of employment that an adverse action can be made. An employee can also seek an interim injunction from the court to restrain an employer from dismissing the employee, either where a threat is made, or it appears likely that termination of employment is imminent.

Where termination of employment has resulted, the court may make any orders it considers appropriate to remedy the situation. This means, that in addition to orders for compensation (the traditional remedy for anti-discrimination tribunals), a court may order injunctions and reinstatement orders.

Conclusion

It is important that employers familiarise themselves with these new adverse action provisions and the potential for alternative claims beyond those traditionally found under the anti-discrimination jurisdiction. Organisations should review their policies and procedures to ensure that they can adequately identify issues giving rise to adverse action. In the case of those with responsibilities for grievance handling (such as human resources and contact officers) retraining may need to occur so that areas of risk can be identified and appropriately managed.

source

HR - Alternatives to challenging workplace investigations

The standard of workplace investigation expected of employers is increasing. Further, employees are using alternative legal processes to challenge workplace investigations.

Many employers are aware of the case Nikolich Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784, as it relates to company policies. It also highlights important lessons in investigating workplace grievances, and in particular, the requirement to resolve factual disputes, make clear findings and the importance of a formal framework.

Mr Nikolich worked as a client financial adviser for Goldman Sachs JB Were. In Canberra, advisers service a portfolio of clients, the success of which impacts on their remuneration. Mr Nikolich formed a team of advisers to improve the level of customer service.

When one of the team members left, Mr Nikolich understood that the departing employee’s clients would continue to be serviced by the remaining team members. However, Mr Nikolich’s manager, Mr Sutherland, reallocated the clients largely outside the team (partly to himself). Mr Nikolich lodged a formal complaint about the reallocation and alleged victimisation and intimidation by Mr Sutherland following the reallocation.

The grievance was handled by an HR manager based in Sydney. She immediately contacted Mr Nikolich and arranged a telephone conference. Mr Nikolich was unsure what outcomes he sought, although he wanted something done and did not want his position jeopardised.

The HR manager checked the reallocation with senior management, who said it was appropriate for the branch manager to allocate clients. However, Mr Sutherland handled the reallocation poorly and morale was suffering as a result. Around August 2003, the HR manager sought a response from Mr Sutherland, who denied most allegations. Mr Nikolich subsequently raised a new complaint about Mr Sutherland allegedly transferring one of Mr Nikolich’s clients to himself.

In December 2003, the HR manager provided written outcomes of the investigation. She acknowledged a lack of transparency. However, she determined that: management’s decision to reallocate the clients was “appropriate”; there was no attempt by Mr Sutherland to intimidate or cause stress to Mr Nikolich; and Mr Sutherland had stepped down from his management role.

In relation to the second complaint about a client transfer, a finding was made that there was no evidence to support the claim.

Mr Nikolich suffered a depressive condition, which led to the termination of his employment. He brought a claim for breach of contract in the Federal Court. The Federal Court found that the handling of Mr Nikolich’s complaint was “extremely inept” because there was no recognition of the seriousness of the complaint (an alleged abuse of power), the HR manager should have travelled to Canberra to conduct interviews (if necessary, a venue should have been hired for interviews to ensure confidentiality) and no effort was made to resolve the factual conflict between Mr Nikolich and Mr Sutherland. In particular, key witnesses were not interviewed.

The process was found to be in breach of the company’s grievance handling procedure and the employee was awarded $515,869 in damages. The employer is currently appealing the decision.

Another case, DET v Sinclair No 2 [2006] NSWWCCPD 163, demonstrates the importance of making fair work arrangements during an investigation. Interestingly in this case, Mr Sinclair did not challenge the termination of his employment. Rather, he brought a stress claim about how the investigation was conducted.

Mr Sinclair was a school teacher. He was informed of an allegation of improper conduct towards a student, but no details were provided. He was immediately transferred away from teaching duties. He was directed to have no contact with any student from the school, even through an intermediary. No details of the allegations were provided for nine months. Mr Sinclair claimed psychological injuries arising from the investigation process. He successfully lodged a workers’ compensation claim.

Mr Sinclair was later dismissed when two charges of misconduct were proven. Upon termination, DET (Department of Education and Training) ceased paying workers’ compensation benefits, claiming that the stress was caused by reasonable action with respect to discipline and was thus exempt under section 11A of the Workers Compensation Act.

The Workers Compensation Commission found that there were two elements of DET’s investigation that were unreasonable, being the delay in providing details of the allegations and the ‘no contact’ direction. While no contact with the complainant and key witnesses was likely to be reasonable, a blanket rule was unreasonable, particularly without any details of the allegations being given. The Commission reinstated Mr Sinclair’s compensation benefits.

source: humanresourcesmagazine.com.au