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

HR failing in Duty Of Care + Management failure in Duty of Care = Company fails Duty of Care

It is February Freeze in the Northern Hemisphere, whilst heating up for the usual February Frazzle in the south. Though this picture reminds me of the lengths one has to go to in alerting management and Human Resources to bullying, harassment and mobbing, all which violate OHS laws and company obligations.

It ceases to surprise me the complacent attitude and inept ability to immediately act by 'at least' putting into action their own company procedures - off the back of their own company policies that they themselves are meant to enforce.

Following on from the infamous Nikolich v Goldman Sachs J B Were case, though it seems there are still employers out there continuing to violate workplace agreements, company policies, floundering in failed process.

Seemling HR, Management and companies continue to show a frosty shoulder to it's valued employees.

The following are two recent cases (one settled, one in infancy) in Victoria and Queensland that demonstrate ongoing ineffectiveness of Management and HR to deal with Bullying and Harassment, and failing to protect the victim (aka Target), to the point that Workers Compensation and legal action is taken by the victim for respite and justice. All which can be avoided by understanding nature of Harassment and Bullying, and immediately taking action to nip it in the bud, and show clear protection and support to the victim.

VICTORIA

Compo payout for former Hepburn Shire Council receptionist

A FORMER Hepburn Shire Council receptionist who alleged she was the victim of workplace bullying will receive compensation including medical costs.

The compensation for an unknown amount follows a hearing in Ballarat Magistrates Court last December 2008.

In the case's recently published judgment Magistrate Brian Wright said he believed there had been a basis for criticism of Ms Haintz's work performance but the issues did not appear to have been properly handled by the shire.

"It is not for me to formally determine whether she was in fact harassed or bullied," he said.

The court had heard Ms Haintz had worked for the shire for 18 years, but experienced problems when she transferred jobs in 2006.

Ms Haintz said she was harassed and bullied by her two supervisors Katherine Atwood and Linda Campbell.

Mr Wright said Ms Haintz was issued with a "performance expectation" letter in November 24, 2006 and in response she lodged a grievance notice which the shire did not acknowledge.

"For whatever reason, the issues as to Ms Haintz's work performance and the grievance issue was allowed to fester for six months until about June 2007," Mr Wright said.

During 2007, Ms Haintz became distressed, feared going to work and would vomit with anxiety every morning, the court heard.

"Of all the evidence I have no doubt that Ms Haintz did suffer a work-related injury, being anxiety and depression, and that injury arose out of or in the course of her employment with the shire," Mr Wright said.

Mr Wright ordered that Ms Haintz be entitled to weekly payments at the "no current work" capacity rate from June 20 2007 to February 1 2008 and payments at the current work capacity thereafter.


QUEENSLAND

Workmates put drugs in my car $345,000 claim for making work life 'hell'

FORMER manager Rochelle Yvette Jupp is suing Rockhampton Regional Council for $345,000, claiming a small number of staff went out of their way to make her life hell.

Her allegations include, among other things, someone conspiring to plant drugs in her vehicle for the authorities to find.

The former ranger services manager at Fitzroy Shire Council lodged a claim last week in the Supreme Court, Rockhampton, alleging her employer failed to protect her against the abuse and provide a safe workplace.

Outlining the level of degradation, she claims in the court document that between March 2005 and February 2006, she was subjected from fellow employees to open hostility, disrespect, disregard of her leadership, denigration to members of the public, false late-night call-outs, a conspiracy to sabotage a presentation she was to make, and a conspiracy to place illegal drugs in her vehicle that would be discovered by authorities.

She also said workers stared at her in an intimidating manner in a way she perceived as sexually harassing.

These all combined to cause her to suffer an adjustment disorder and anxiety which developed into a major depressive disorder.

Ms Jupp claims council ignored her pleas for help.

They failed “to provide any adequate response to complaints by the plaintiff from time to time of difficulties encountered in carrying out her duties”.

It was also alleged council failed on her appointment to devise and implement an adequate management change program when it should have been known staff were unprepared to support her.

Her claim says she has been unable to return to her former employer as a manager or continue in her chosen field of employment, in which she holds university level qualifications.

The $345,428.65 claim includes $200,000 for future economic loss and $60,000 for pain and suffering.

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After reading these stories what strikes you is the blantant obvious nature of the complaint, and in some instances you can read between the lines to see it is clear sometimes the situations and unacceptable behaviour is condoned, encouraged and left to fester.

As they say, it is easier to get rid of the victim than the psychopath. Let's all close our eyes and hope the victim goes away. This is unacceptable, and it is evident that victims are becoming stronger to take their cases to court, to excersice their rights and deal with it outside airing dirty laundry in public, presenting toxic workplaces for what they are,. finding logic, reason and most of all empathy from a Judge!