Document number AMHRGL07 Version 2.2 Date of issue May 2014 Date of review Apr 2017 Reviewed by HRD Approved by APRC
Bullying and Harassment Complaint Handling Guidelines
Table of Contents Overview 2 1. Definitions 2 2. What is Bullying and Harassment? 2 Bullying 3 Unreasonable or unacceptable behaviour 3 Mobbing 3 Harassment 3 Sexual Harassment 3 Discrimination 3 Direct Discrimination 4 Indirect Discrimination 4 Victimisation 4 Verbal Conduct 4 Non-Verbal Conduct 4 3. What is not Bullying and Harassment? 5 4. Legal Obligations 5 Fair Work Commission 7 Process 7 5. Day to Day Management 7 6. Qualities and Skills for dealing with Complaints and Investigations 8 Note Taking 9 File Keeping 9 Listening 9
Page 1 of 22 Effective Questioning 9 Questioning styles to be Avoided 10 7. Informal Complaint or Issue 11 8. Formal Complaint Investigation 12 8.1 Workplace participant verbally advises his/her supervisor or manager that they wish to lodge a formal complaint 13 8.4 Investigation process 14 8.6 Complaints involving non-Aspen workplace participants 16 8.7 Anonymous Complaints 16 8.8 Allegations made in Bad Faith 17 8.9 Defamation 17 8.10 Findings 17 8.11 Appeal 19 9. Natural Justice 19 10. Role of the union representative or support person 20 11. Allegation of a criminal nature 20 12. Flow Chart 21 13. Supporting Documents (SD) 22
Page 2 of 22 Overview At Aspen Medical (“Aspen”) we value the diversity of our workforce and respect the differences between employees. Aspen aims to provide a healthy and safe working environment that is free from inappropriate and unwanted behaviour, so far as is reasonably practicable. Aspen will take all reasonable steps to prevent any form of bullying, harassment or discrimination from the workplace. Bullying is a risk to health and safety in the workplace and is unacceptable. This guide has been designed to support managers in the effective deployment of the Bullying and Harassment Policy; and includes a definition of behaviours that may constitute bullying, harassment and unacceptable behaviour and deals with issues relating to the ways in which complaints may be made and will be addressed. Also provided within this guide is a detailed step by step set of instructions for those managers required as part of their role to carry out a formal investigation into allegations of bullying and harassment. Please note: in all cases you are required to contact the Human Resources team in the first instance. This document must be read in conjunction with the Bullying and Harassment Policy.
1. Definitions
Workplace Participants Employees, agents and contractors (including temporary contractors) of Aspen
Complainant Any person who makes a complaint under the provisions of the Bullying and Harassment Policy
Respondent Any person against whom a complaint has been made under the provisions of the Bullying and Harassment Policy
Appellant Any person who makes an appeal under the provisions of the Bullying and Harassment Policy
2. What is Bullying and Harassment? Bullying, harassment and discrimination are overlapping concepts encompassing a range of negative behaviours. In the workplace they create an environment which makes it difficult for workplace participants to work effectively, safely and efficiently and may cause them personal trauma. Bullying is repeated, unreasonable behaviour by an individual or group of individuals, directed towards a worker or a group of workers that creates a risk to health and safety. It includes both physical and psychological risks and abuse. As well as creating a risk to health
Page 3 of 22 and safety, bullying can impact an organisation through reduced productivity, staff turnover and legal costs. A bully misuses their power, position or knowledge to criticise, humiliate or destroy a subordinate, colleague or manager by undermining confidence, competency and integrity. Bullying can occur face-to-face, over the phone, via email, social media, instant messaging or using mobile phone technologies including text messaging. Bullying can involve many different forms of unreasonable behaviour, which can be obvious (direct) or subtle (indirect). Bullying can be intentional, where the actions are intended to humiliate, offend, intimidate or distress, whether or not the behaviour did have that effect. Bullying can also be unintentional, where actions although not intended to humiliate, intimidate or distress have caused that effect. Sometimes people do not realise that their behaviour can be harmful to others. In some situations, behaviours may unintentionally cause distress and be perceived as bullying. Whilst a single incident would not be regarded as bullying, all such behaviour is deemed unacceptable behavior in the workplace and may be considered a breach of Aspen’s Code of Conduct. Unreasonable or unacceptable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten another person, regardless of what the intention of the behaviour is. Mobbing is a term sometimes used to describe bullying behaviour where the perpetrator is a group of people rather than an individual. Harassment is any verbal, written or physical behaviour or conduct that is of an offensive, threatening, intimidating, abusive or belittling nature and that is unwelcome, unreciprocated, uninvited and usually, but not always, repeated. Harassment is linked to anti-discrimination laws and is generally related to social identity or ‘personal attributes’ (see Discrimination). Sexual Harassment is any form of unwelcome or unwanted sexual attention that involves humiliation or offence to the recipient. Sexual harassment can be a single incident or repeated and is unlawful. Discrimination is the act of unwanted actions of a single person or group, where the individual is made to feel intimidated, insulted or humiliated because of their race, colour, sex, sexual preference, sexual orientation, gender identity, age, physical or mental disability, relationship or marital status, family or carer’s responsibilities, pregnancy, breastfeeding, religion, political opinion, national extraction or social origin. Discrimination can be of a direct or indirect nature; or because of an individual’s ‘difference’ or ‘perceived difference’. Direct Discrimination occurs when someone is treated less favourably than another person in comparable circumstances. Indirect Discrimination usually occurs in relation to employment policies and practices which have a discriminatory effect (often unintended) rather than discriminatory behaviour. It may occur when employment requirements, conditions and/or practices that appear neutral, actually have disproportionate adverse effects on an individual or group relative to others.
Page 4 of 22 Victimisation occurs where a person subjects, or threatens to subject, another person or an associate of that person to a detriment because they have complained (whether formal or otherwise) or helped someone who has made a complaint. The threat does not have to be followed through for it to be victimisation. Sometimes behaviour may be viewed as bullying, harassment or discrimination simply because the workplace participant(s) just don’t “fit in”. Bullying and harassing behaviour can range from subtle intimidation or single incident whereby the workplace participant feels it is too trivial to warrant attention, to more obvious aggressive or repeated tactics. Even when the workplace participant appears unaffected, feels embarrassed or lacks confidence to speak up, bullying and harassment behaviour still has the potential to damage. The impact of this damage can effect: Relationships (both at home and at work) Health and well-being Performance Morale Absenteeism The following provides some examples of what may constitute bullying and harassment in the workplace. Please note: this is not an exhaustive list: Verbal Conduct Comments, jokes, banter, insults and language related to a “personal attribute” which is offensive, humiliating, degrading or threatening, Questions, jokes or banter about aspects of an individual’s private life to include spreading rumours and gossip, Persistent, unjustified criticism of someone’s work or behaviour, Racial comments, jokes or taunts, Suggestive remarks, innuendoes or lewd jokes, Sexual comments and/or demands for sexual favours whether or not accompanied by threats to the individuals job or career, or promise of promotion, Unwelcome practical jokes or horseplay, The use of unsuitable language in the workplace. Non-Verbal Conduct Blocking or denying opportunities for training, promotion or interesting work, Excluding or isolating employees from normal conversation, work assignments, work related social activities and networks in the workplace, Displaying offensive objects, pictures, publications or material which may be perceived to be offensive, Staring, leering, whistling and suggestive gestures, Racial or sexually based graffiti, emails, correspondence or postings on social media referring to a “personal attribute” or an individual’s private life, Unwelcome physical touching or brushing against, Pushing, shoving or throwing objects at a person, Attempted or actual kissing, hand-holding or cuddling, Persistent following or stalking within the workplace, or to and from work, Persistently and inappropriately changing and/or setting impossible deadlines, tasks or targets,
Page 5 of 22 Branding as a troublemaker a person who raises a workplace grievance or complaint, and taking no action to address the grievance or complaint, Threats of, or actual assault, including sexual assault. Bullying and harassment behaviour can impact individuals differently. What one person can cope with, may distress another. Diverse social and cultural backgrounds lead people to perceive behaviours differently. It is important to consider that behaviour that may be acceptable or welcome in one context, may be inappropriate and unwelcome at work. Harassment is sometimes viewed by the perpetrator as a “bit of fun” and often supported by such comments as “he/she can’t take a joke…’ or “what’s the problem, it was only a bit of fun…” etc. It is worthy of note that just because one person believes the incident or occurrence is funny does not mean someone else is not offended or humiliated. It must also be considered that failure to challenge the behaviour does not in itself indicate acceptance of such behaviour. The recipient may not feel able to challenge the behaviour themselves or what may have started out to all as a joke has now become offensive because of the frequency or a change in circumstances.
3. What is not Bullying and Harassment? Reasonable management decisions, discussions or actions (including performance management and counselling) do not constitute discrimination or bullying, as long as they are accurate, constructive, courteous, are not humiliating or threatening to any workplace participant, and are conducted in accordance with privacy and confidentiality requirements. Similarly, occasional differences of opinion, conflicts and working relationship issues that are part of working life do not generally constitute bullying, harassment or discrimination. It is not discriminatory to deny employment if a person with a disability cannot meet the inherent requirements of a job. The inherent requirements of a job are those fundamental tasks that are necessary to get the job done. However, employers are legally obliged to consider how a job or a workplace could be changed so that a person with a disability could meet the job requirements. This may include making reasonable adjustment for a person with a disability to enable them to be able to carry out the job. This applies to both suitable job applicants and current employees.
4. Legal Obligations Aspen has a legal obligation to ensure the workplace is free of bullying, harassment and discriminating behaviour; this obligation extends to providing a workplace that promotes the health and well-being of all workplace participants. Under the Work Health Safety Act (Commonwealth) 2011 senior managers and managers are required to eliminate risks to health and safety or if they cannot be eliminated, to minimise those risks. This includes the provision and maintenance of: a safe work environment, safe systems of work, provision of and access to adequate welfare facilities, provision of information, training, instruction and supervision and monitoring the health of workplace participants and working conditions. This duty extends to psychological hazards in the workplace including bullying behaviours. Workplace participants must likewise take reasonable care for their own health and safety and take reasonable care that their acts or omissions do not adversely affect the health and safety of others, comply with any reasonable instructions given by leaders and comply with Aspen HSE and HR procedures.
Page 6 of 22 Under the Racial Discrimination Act 1975 it is unlawful for a person to take any action involving an exclusion, restriction, distinction, or preference based on race, colour, descent, or national or ethnic origin. The Sex Discrimination Act 1984 makes it unlawful to discriminate on the basis of a person's sex, sexual preference, breast feeding, family responsibilities, marital status, and pregnancy or to sexually harass a person. It is important to note that the test for sexual harassment is if a reasonable person would anticipate the possibility that the workplace participant would be offended, humiliated or intimidated. The Australian Human Rights Commission Act 1986 makes it unlawful to harass or discriminate on the basis of race, colour, sex, breastfeeding, religion, political opinion, national, social or ethnic origin, age, marital status, pregnancy, sexual preference, mental, intellectual, psychiatric, or physical disability, impairment or trade union activity. The Disability Discrimination Act 1992 makes discrimination about a disability unlawful. The legislation covers: employees; prospective employees; current and prospective agents of Aspen; and contract workers. Discrimination based upon a relative or associate having a disability is also unlawful under the Act. Under the provisions of the Occupational Health and Safety Act 1991, Commonwealth employers have to take all reasonably practicable steps to protect the health and safety of staff at work. Employers breach this obligation if they fail to take all reasonably practicable steps to provide and maintain a work environment that: is safe for workplace participants; is without risk to their health; and has adequate facilities for their welfare at work.
Fair Work Commission Under the Fair Work Act 2009, the Fair Work Commission has determined that bullying and discriminatory behaviour by an employee are just grounds for termination of employment. Also a person who resigns as a result of bullying or discrimination, may seek remedies on the basis that the employer failed to address the conduct amounting to ‘constructive dismissal’. Remedies may include reinstatement and/or compensation. Remedies are also available to an employee under the Fair Work Act 2009 for adverse action taken against them including discrimination. The National Anti-Bullying laws came into effect on 1 January 2014. Employees may now make an application to the Fair Work Commission for an order to stop bullying as a workplace right protected under the general protections provisions of the Fair Work Act. It is worthy of note that individual employees and/or managers can be personally liable for prosecution under the relevant legislation for failure to provide a safe workplace. This includes harassment by clients and other persons who workplace participants come into contact with in connection to their work.
Page 7 of 22 Process
5. Day to Day Management For managers, ensuring every member of your team knows and understands the meaning of harassment, bullying and discrimination can help prevent unacceptable behaviour in the first instance. Challenging unacceptable behaviour when observed can often stop it in its tracks and remove reoccurrence. As a manager or supervisor you must ensure that you: Fully understand the Bullying and Harassment Policy and are able to offer advice when required to do so. Publicly promote the Bullying and Harassment Policy. Ensure the working environment is free from visual harassment i.e. pin-ups or graffiti. Where graffiti is found it should always be documented before removal (i.e. take a photo). Be aware of physical and verbal harassment in your work area and deal with it immediately, whether or not it is brought formally to your attention. Be supportive of individuals who state they have been harassed, and take full account of their feelings and perception of the situation. Be equally supportive of the respondent/s, and take full account of their feelings and perception of the situation. Maintain complete confidentiality relating to all aspects of cases of harassment at all times. Only discussing the case with those who need to know and only then when there is a need to know. Ensure there is no victimisation of the Complainant, Respondent or Witnesses. Do not participate in, encourage or condone gossip relating to cases of actual or alleged harassment and take appropriate steps to prevent or stop gossip in work areas. Initiate and complete investigations of alleged harassment in accordance with the Bullying and Harassment Policy when required to do so. Managers are aware of their team’s dynamics. It is therefore important to recognise the signs of harassment which may include a change of morale and/or performance within their team; either of an individual or to the team as a whole. Signs of harassment may include but is not limited to: An individual may ask for a surprise transfer or move of location, An individual’s level of absence may significantly increase compared to their normal pattern of attendance, An individual becomes withdrawn and isolated, An individual’s performance suddenly drops when previously they had performed well. In these circumstances you should make a sensitive enquiry with the individual or individuals to ascertain the reason for the change. *It is worthy of note that these signs may also relate to personal or non-work related issues. In any event a sensitive enquiry as to the employee’s wellbeing should be made.
Page 8 of 22 6. Qualities and Skills for dealing with Complaints and Investigations You should be empathetic and sensitive when investigating cases of bullying and harassment. It is essential to put aside any pre-conceived ideas and ensure everyone is given a fair hearing. Bear in mind that some interviewees may find it difficult to express themselves, particularly if delicate personal issues are involved. It is therefore essential that you give the interviewee time to speak without interruption or impatience. As far as possible you should create an atmosphere in which people do not feel frightened or defensive. To conduct a fair, thorough and unbiased investigation, you will need to apply the following qualities and skills:
Objectivity: You will need to be sufficiently experienced so as to remain objective in an emotional situation. Trustworthy and Fair: The interviewees must feel confident that your investigation and decision will be fair. Approachable: Interviewees are more likely to be open and honest if you are approachable and easy to talk to. Caring: It is important to demonstrate that you are empathetic to all interviewees and have listened to what they have to say, without becoming personally involved. Discrete: Only disclose information that you acquire during your investigation to those who have a proper need to know. Integrity: There may be attempts to persuade you, sympathise with you or threaten you. The integrity of the whole investigation depends on your actions and approach. It is vitally important that you do not give in to pressure to withhold or dishonestly amend any information or facts. Resilience: To conduct a thorough and fair investigation you will need to decide who to interview, what are the significant facts, what information needs to be established etc. You must be able to differentiate between important and unimportant facts. Note Taking It is essential that appropriate notes of all conversations be taken not only for the purposes of reaching a decision but also as future reference should the matter go further – either appealed internally or referred to an external body such as the Australian Human Rights Commission or Fair Work Commission. You should also keep notes of conversations or actions taken which otherwise may not be recorded i.e. telephone calls to chase up information etc. These may not necessarily be used in reaching your decision but can provide an explanation in cases which incur delays. The typed version of the notes must be provided to the interviewee to read and check before signing and dating. Tip: numbering paragraphs makes cross-referencing easier. It is recommended that you take your own notes even if you have a note taker, this will aid during the interview process to formulate additional or prompting questions; and that both hand written and typed records be kept.
Page 9 of 22 File Keeping Setting up a Case File (incorporating a detailed time-line record) at the start of the investigation will ensure safe keeping of all records should they be called upon at a later date. All completed files must be sent to HR and kept securely in accordance with the Privacy Act. HSE Incident reports must be maintained in RiskMan. Listening In order to gain the information that you require and reassure the interviewee that their case is being heard you will need to use ‘active’ listening skills to include: An open body posture, try to lean slightly towards the interviewee, Good eye contact (without staring), Affirming nods and murmurs that you understand what is being said without taking sides. This practice is useful when taking notes as often eye contact is reduced. Be careful when saying ‘ok’ or ‘yes’ as this may be misinterpreted. Maintain a calm posture, without fidgeting, Allow the interviewee to answer your questions without interruption, followed by prompting questions to clarify if needed, Repeating or paraphrasing what the interviewee has said to show you have understood, Asking for facts to be agreed or corrected. Effective Questioning Your aim is to collect as much useful information as possible in a limited time and encourage interviewees to speak openly and honestly when they may not wish to do so. Questions to use during an investigation may include but are not limited to: How long have you worked at …? What is your role? What is or please describe the working atmosphere in this office? Please tell me in your own words what happened on …? When did this take place? (often followed by ‘where did this take place?’) Did anyone witness this behaviour? How did you respond? Once you have let the interviewee give their version of events without interruption, you can ask open questions that cannot be answered with a ‘yes’ or ‘no’ answer. Open questions begin ‘tell me about…?’ or words like ‘how’ or ‘what’. Should there be any areas that are not clear, you may need to use probing questions such as ‘exactly when did that happen?’ or ‘what happened next?’. Closed questions can effectively be used for specific information or when clarifying a point, such as ‘was that before or after…?’ or ‘did you actually see…?’ A key part of your investigation is to establish patterns of behaviour within the office, questions most effectively used when interviewing witnesses includes ‘does office banter take place?’, ‘who was involved?’, what kinds of things does the banter include?, who initiates the banter?’, ‘how do you feel about the banter?, ‘how do your colleagues feel about the banter?’
Page 10 of 22 Questioning styles to be avoided The following questioning styles must be avoided at all times: Direct or Leading – if you are too direct interviewees will be less likely to say what they mean. Judging – listen to all the facts (complainant/s, respondent/s and witnesses) before reaching any conclusion as to what happened or not. Blaming – this will only add to the sense of guilt the interviewee is already feeling. Moralising – do not make any personal opinions such comments will only arouse hostility. Diagnosing – do not jump to any conclusion, only reach your decision when you have all the evidence to hand and only then in private. Humour – this may make the interviewee complacent, feel that it is not that serious an issue or feel that you are insincere or biased. Advising – this is not an investigator’s role. It will waste time and may be seen as bias. Interrogating – a harsh interview style is unlikely to provide good evidence. Allow the person to speak freely. Emphasising anyone question – exaggerating the importance of any question or statement carries the risk of biasing the investigation. Over sharing – can bias the investigation and intensify emotions. It may also antagonise the interviewee or make you appear unreliable. Claiming professionalism – the purpose of the investigation is to face the real situation. Trying to impress interviewees is counter-productive. Faking attention – interviewees will know if you are being false and make them reluctant to speak out. Hurrying people up – trying to speed things up will increase tensions and reduce the amount of information that you receive. It could lead to complaints about the way you conducted the interview. It is recommended you remain in control of the interview whilst allowing the interviewee to speak openly.
7. Informal Complaint or Issue Prior to any formal complaint being submitted, a workplace participant may approach you to: seek advice about the Bullying and Harassment Policy and complaints process, raise an issue with you about inappropriate workplace behaviour, raise an issue with you about inappropriate workplace behaviour but not wish to be named, make you aware of inappropriate workplace behaviour but not wish to proceed with any complaint, say they feel injured or ill as a result of bullying and harassment or; ask to raise an informal or formal complaint. As the Manager or Supervisor you have a responsibility to take all remarks seriously and where needed, investigate the alleged issue or incident. In the first instance you are required to complete the ‘Bullying & Harassment and Grievance Issue Form’ (SD 1) with the workplace participant in a face-to-face meeting, if practicable. When completing this form ensure you capture the details of the issue or complaint and
Page 11 of 22 ascertain the workplace participants ‘desired outcome’. Once complete provide a copy to the workplace participant and forward a copy to the Human Resource team. The Human Resource team will then record the details and inform the HSE team. No record will appear on the workplace participant’s employee file and details of the complaint or issue will remain confidential. Although a workplace participant has the right to choose either the informal or formal complaints process, they should be encouraged to begin with the informal stage first as this can often achieve a more timely and satisfactory result for both parties. Individuals about whom a complaint of bullying or harassment has been made may not be aware that their behaviour is inappropriate. An informal discussion with the individual may be enough to raise awareness and lead to an agreement that the behaviour will stop. If the workplace participant agrees to the informal complaints process, as the Manager or Supervisor you must make it clear to the workplace participant that they are agreeing to take forward the following actions, as soon as possible: a) approach the alleged bully and tell them to stop; or. b) approach the alleged bully with a support person and tell them to stop; and/or c) center mediation or conciliation with the alleged bully via an internal or external mediation service. Where a workplace participant states they wish to raise their complaint informally but then takes no action or the workplace participant takes action but the bullying or harassment continues, then the Manager may instigate the formal stage of the policy. Please note: informal resolution may not be appropriate in all circumstances and guidance for all serious allegations must be sought from the Human Resource team. Where an employee is unwilling or unable to address the situation themselves, the Manager has a responsibility to progress the matter in order to try and resolve the matter. Informal resolution may include any of the following: an apology, mediation, counselling, an action plan, retraining and/or education, workplace retraining and/or education, a review of the workplace. A workplace participant may raise a bullying and harassment issue or complaint during their exit interview or written as part of their resignation letter. In all instances advice must be sought from the Human Resource team.
8. Formal Complaint Investigation If the bullying or harassment is serious, so much so that the informal stage is deemed inappropriate or; if the bullying or harassment continues after the informal stage has been implemented, then the workplace participant or you as Manager may instigate the formal stage of the policy. The steps to follow are:
Page 12 of 22 8.1 Workplace participant verbally advises his/her supervisor or manager that they wish to lodge a formal complaint. As the person receiving the complaint you are responsible for: Protecting the complainant from reprisals, Ensuring confidentiality is maintained, Ensuring adequate support is provided to both the complainant/s and the alleged respondent/s. Contacting the Human Resource team, and Providing assistance to the complainant so as to submit their written complaint.
8.2 The formal complaint must be in writing with specific allegations to include dates, times and names of witnesses and then forwarded to the Human Resource team. The employee may submit their complaint using the Bullying and Harassment Complaints form (SD 2). The Human Resources team will acknowledge the formal written complaint within two (2) working days of its receipt via email or letter where no email address is provided (SD 3). The Human Resources Director will then appoint an investigator depending on their skills and experience (subject to the investigators availability preferably within five (5) working days). Depending on the level of risk, the formal complaint may be investigated internally via an independent manager or through an external provider. The complainant or respondent has the right to challenge the independence and impartiality of the investigator, providing they present reasonable grounds in writing for doing so. If you have been requested to investigate an alleged case of bullying and/or harassment, consider whether you are the appropriate person to be doing it? Ask yourself – are you or have you been involved in any way which might stop you from been unbiased? If you answer yes to this question then you must inform the Human Resources Director immediately.
8.3 The Human Resources Director will appoint an appropriate senior manager to meet with the complainant/s and respondent/s separately upon the confirmed appointment of an investigator and explain the formal process, rights and responsibilities. The senior manager may request a member of the Human Resources team to be present at the meeting. Matters to be discussed: how the complaint will be investigated in this order, complainant/s interview, respondent/s interview, if the allegation is disputed witness interviews and viewing of documented evidence, how the complainant/s and respondent/s will be contacted by the investigator i.e. initial contact by telephone to agree time, location etc and follow up letter to confirm, an expected timetable for the investigation with an explanation of limitations i.e. potential delays include workplace participant’s absence or annual leave (you will not be able to give a specific date), relevant details of the allegation/s and complaint will be provided to the respondent by the investigator in accordance with Natural Justice, all interviewee/s will receive a copy of their own interview notes for the purposes of accuracy.
Page 13 of 22 right of union representation or a support person at the interview, a reminder of support mechanisms i.e. Employee Assistance Program, any interim measure that will be taken to ensure the safety and welfare of the complainant/s and respondent/s, this may include suspension or a location move, requirement to maintain confidentiality throughout the investigation, an understanding that the process will be monitored during the course of the investigation.
8.4 Investigation process The first thing you should do is organise your diary and plan the investigation process to include: What accommodation will you need to arrange for the interviews i.e. location, confidential room etc. How much time you will need to set aside for reading the complaint, preparing the questions, interviews, admin, report writing etc, Who will be your note taker? Identify someone who is unconnected with the people involved, will uphold the integrity of the investigation, have the necessary skills and time to type up the notes, Who you will need to contact i.e. Manager or Supervisor to arrange the complainant/s, respondent/s and witnesses release from duty, What support will be needed for the complainant/s, respondent/s and witnesses, Do any of the interviewees have a disability or require interpreting services, Who needs to be kept updated on progress i.e. Human Resource Director, Aim to complete your investigation within 28 calendar days. Note: should the investigation take longer than 28 days, you are required to provide weekly updates to the Human Resource Director on progress/reason for delay and inform and regularly update the complainant/s and respondent/s of the delay. Tip: create a ‘Do Not Disturb’ sign for the door of the interview room. The complainant should normally be interviewed first, with the aim of obtaining as much detail about the complaint as possible (see SD 7 for opening statement and example questions), initial contact to be made by telephone with verifying letter (SD 6). The complainant should be dealt with in a sensitive manner, with an understanding of the distress that may be caused when relating the harassment or incident. After interviewing the complainant, as the investigating manager you must carefully consider the welfare of the complainant/s and decide on the need for any precautionary action i.e. suspension. You must contact the Human Resources team for advice if this is the case. You should then contact the named respondent/s; this may be an initial telephone call to agree time, location, right of representation etc, and must be accompanied by a letter (SD 9 or 10) advising the following: The details of the complaint The interview time and location etc. Copy of the Bullying and Harassment policy Right of representation Requirement for confidentiality and Possible consequences.
Page 14 of 22 The respondent/s should then be interviewed and given a clear and fair opportunity to present their version of events (see SD 11 for opening statement and example questions). A minimum 24 hours’ notice is to be given. When interviewing the respondent/s, ensure you remain as neutral sounding as possible, avoid harsh, legalistic expressions such as ‘sexual/racial harassment’, ‘charge’, and ‘claim’. Also be careful not to be affected by the respondent/s reaction which may include anger, surprise, denial or statements of hurt and betrayal.
Instead use expressions like ‘a matter…’, ‘a sensitive issue…’, and ‘inappropriate behaviour’. Concentrate on the situation and state the allegations exactly as the complainant/s presented. In some cases the respondent/s will make a counter complaint. If this happens, you must make it clear that these allegations will also be taken seriously, following the same process as the current complaint, in accordance with the Bullying and Harassment Policy. It is recommended that you continue with the interview as planned and advise the respondent/s that any newly raised allegation/s can either be presented at the end of this interview (with an appropriate adjournment) or in a newly scheduled interview. Please see the HR team for Supporting Documents for other standard complainant and respondent letters. Should the respondent/s admit to the behaviour, you can write your report and make a decision as to whether you recommend any appropriate action, which may include mediation, further training and education or disciplinary action. It is essential that when reaching your decision you take into account any remorse expressed by the respondent/s. Should the respondent/s dispute the allegation/s then you will be required to conduct any necessary further investigations so as to determine the facts. This may involve re- interviewing the complainant, any relevant witnesses and/or documented evidence. Please contact the Human Resources team if either the complainant/s and/or respondent/s take any annual or sick leave during the investigation. The structure you use for interviewing witnesses should be the same as for the complainant/s and respondent/s (see SD 15 for opening statement and example questions).
8.5 During the course of your investigation the complainant/s may approach you to withdrawn their complaint or amend a statement which has already been given to you. Any sudden change of heart should be viewed critically, remembering that Aspen has a duty of care to fully investigate complaints which are brought to our attention. The reasons for withdrawal or amendment will generally be for one of the following reasons: The complainant/s were not fully aware of all the facts when they made the complaint and have since become aware of new evidence and now wish to withdraw their complaint. The complainant/s have been put under pressure by others to withdraw their complaint or change their versions of events, The original complaint was fabricated in an attempt to get someone into trouble and the complainant realises that they have little chance of success,
Page 15 of 22 The complainant/s may feel that the investigating manager has not acted in accordance with the Bullying and Harassment policy and whilst the complaint is genuine they have now lost faith. As the investigating manager you should take the following actions: Speak with the complainant/s as to their reason/s for withdrawing the complaint. Don’t jump to any conclusions, Be prepared to challenge any arguments, which are weak, but support and reassure those who may be genuinely in fear or reprisals, Make a file note of what is said. In all cases, seek advice from the Human Resources team. Remember: complaints don’t just go away, particularly those which include serious allegations. Be prepared to follow the case through to its conclusion.
8.6 Complaints involving non-Aspen workplace participants Under Federal and State anti-discrimination law bullying, harassment and discrimination in the delivery of goods and services is unlawful. In circumstances where a client or person, not employed by Aspen, continues to harass a workplace participant, then it is recommended the workplace participant should be relieved from all official contact with the named respondent pending a resolution. The issue/s is to be reported to the workplace participants Manager or Supervisor so as to consider the following options: if the circumstances allow, indicate to the respondent, either in person or in writing, the specific unsolicited behaviour that is unwelcome, intimidating, offensive and/or humiliating and request that the behaviour cease immediately; seek resolution of the problem, usually informally, through the respondent's manager; if the unwelcome behaviour continues and where the respondent may be performing under a contract of services for Aspen, seek to terminate the contract; or as a last resort, if the discrimination or bullying persists, consider obtaining an apprehended violence order against the respondent (support could be provided by affidavits from staff who witnessed the discrimination or bullying). In all cases, seek advice from the Human Resources team.
8.7 Anonymous Complaints Aspen has a duty of care to fully investigate complaints which are brought to our attention regardless of whether or not there is any named complainant. Issues of bullying, harassment or discrimination may be brought to a manager’s attention via a Staff Survey, an anonymous letter of complaint or some other communication. As the manager you should take the following actions: In all circumstances contact the Human Resource team or HSE team for advice, Retain a copy of the original communication. Actions to resolve the anonymous complaint may include: Workplace retraining and/or education,
Page 16 of 22 Where the complaint or allegation/s is of a serious nature then fact-finding interview/s with workplace participants in the relevant work area may be necessary. Note: there is no requirement to interview every employee and judgement will need to be reached as to how many interviews are carried out and with whom, Consider how notes of interviews will be taken. Note: typed notes implies a formal procedure, Consider how the results of the investigation and recommendations are to be communicated and to whom. Note: recommendations may include those listed as informal resolution (Point 7) or formal recommended actions (Point 8.10).
8.8 Allegations made in Bad Faith Complaints that are not made in good faith undermine the validity of the investigation and Bullying and Harassment policy and damage good working relationship. There is an obligation on all workplace participants that their complaint is made in good faith. For the complaint to be deemed as not made in good faith there must be reasonable grounds for this belief with supporting evidence i.e. the allegation/s are untrue or have been raised so as to annoy, irritate, distress, damage or otherwise harm the reputation and/or integrity of the respondent/s. In all cases, seek advice from the Human Resources team. If it is found that the complaint has not been made in good faith then appropriate action may be taken in accordance with Aspen’s conduct of code up to and including dismissal.
8.9 Defamation Defamation refers to the written or verbal communication of a false or derogatory statement about an individual. Generally a defamatory statement exposes the individual to contempt, hatred or ridicule. It may also injure reputation or impede promotional opportunities. Generally, when an individual makes a complaint in good faith through the proper channels (i.e. to an authorised person or someone who has a legitimate and genuine interest, such as a Human Resource Manager or Manager) it is not defamatory. This protection can be lost if the complaint is malicious or communicated outside the proper channels.
8.10 Findings Some cases may appear clear cut i.e. the respondent/s has admitted to the allegation or there is overwhelming evidence to believe the allegation/s did in fact take place. However other cases may be less clear, there may be contradictory evidence and further investigation with the complainant/s or respondent/s has not clarified the matter. In these circumstances you may benefit from recording and balancing the evidence in one document to highlight supportive and contradictory evidence (see SD 17). You can then use this information to determine the facts of the case and decide as to whether you have ‘reasonable belief’ that the allegation/s did in fact take place. Where there is no direct evidence, resolution may depend upon your assessment of the ‘balance of probabilities’ and the credibility of the people involved. It is important to consider the following essential elements in making your decision: You need to believe that the allegations/s complained about actually occurred,
Page 17 of 22 You need to have reasonable grounds for coming to that conclusion, and You need to be satisfied that when you reached that decision you had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. In summary, you don’t have to be able to ‘prove’ that the allegation/s occurred, but you do have to ‘reasonable belief’ that they did i.e. you can make a reasonable judgement of the facts gathered, having carried out a thorough investigation and carefully considering the evidence available to you. Importantly: you need to be able to explain why you believe it did or did not happen. Next, you must decide as to whether the action was reasonable in the circumstances. This very much depends on the facts of the individual case. In reaching a decision on this point it may be useful to consider the following two questions: was the behaviour of the respondent/s in relation to those alleged incidents inappropriate/unacceptable (i.e. did it constitute a breach of Aspen standards); was it reasonable for the complainant/s to have perceived that they were harassed by the alleged behaviour. If the complaint cannot be substantiated, this does not necessarily mean the inappropriate behaviour did not occur. It is recommended that you re-check the evidence and consider whether there is any area that may need further investigation before submitting your report. You are now required to write a report detailing the facts of the case, your findings, decision and any recommendations (see SD 19 and 20). The completed report must be provided to the Human Resources Director, who will arrange for the appropriate senior manager to meet with the complainant/s and respondent/s separately and provide a copy of your findings. Recommended action/s may include any of the following: an apology, mediation (internal or external), counselling, an action plan, retraining and/or education, workplace retraining and/or education, relocation, a review of the workplace in 6-12 months, Disciplinary Action which may result in verbal or written warnings, dismissal with or without notice. Where disciplinary action has been recommended, the principles of the Code of Conduct or relevant Aspen policy will apply. The evidence gathered during the investigation (and any subsequent appeal) will be deemed as fact-finding. Regardless of the outcome of the investigation there is likely to be a need to re-affirm appropriate standards of conduct and behaviour within the workplace and ensure there is no victimisation as a result of the complaint being made. It is also appropriate to schedule a review of the workplace to ensure the actions to stop the inappropriate behaviour or conduct has been affective. Please note: an external investigator will follow their own investigation process and is not obliged to follow the above guidelines.
Page 18 of 22 8.11 Appeal The complainant/s and/or respondent/s may submit one (1) appeal in writing within five (5) working days of receiving the ‘investigation findings report’, to the Human Resource Director. The complainant/s and/or respondent/s will now be referred to as the ‘appellant/s’. The grounds for an appeal can only be considered where the reason for the appeal is raise question as to: whether the correct process was followed during the original investigation; whether there has been any breach of natural justice; or whether there is any new evidence which has come to light which would have materially affected the outcome. The Human Resources team will acknowledge the written appeal within two (2) working days of its receipt (SD 3). The Human Resources Director will review the request for appeal and determine whether there are sufficient grounds for an appeal. If the Human Resources Director decides the appeal can proceed, they will then appoint a Manager depending on their skills and experience (subject to the Managers availability preferably within five (5) working days). The Manager must not have previously been involved in the original investigation. The appellant has the right to challenge the independence and impartiality of the Manager, providing they present reasonable grounds in writing for doing so. The appellant will be interviewed first, with the aim of obtaining as much detail about the ‘grounds of appeal’ as possible (SD 21). The Manager will then examine the evidence and conduct any further investigation as required. A letter advising that an appeal has been submitted should be provided to the other named complainant/s and respondent/s (SD 22). A letter confirming the outcome of the appeal (SD 23) will be provided to the appellant and an update letter (SD 24) confirming the outcome of the appeal will be provided to the other named complainant/s and respondent/s.
9. Natural Justice 'Natural justice' is about unbiased decision making. It makes sure people have the chance to be heard where their rights, interests or reasonable expectations are affected by a decision or determination. In managing instances of bullying and harassment, misconduct or serious misconduct, the principles of natural justice will underpin all actions undertaken by the Manager. All workplace participants will be told of the substance of the case and alleged breach (whether requested or not), All workplace participants will be given the opportunity to comment and present their own case, All workplace participants have the right to be heard and judged without bias, All issues are to be investigated thoroughly and justly, All workplace participants will be afforded a reasonable length of time to prepare. The standards of conduct or behaviour required will be made clear to the workplace participant by documentation or during interviews,
Page 19 of 22 All workplace participants will be made aware of the likely next steps and possible consequences in the event that satisfactory conduct or behaviour has been breached, is not improved or maintained, The workplace participant will be afforded the right to be accompanied by a union representative or support person at discussions or interviews at any level of the formal discipline process.
10. Role of the union representative or support person A union representative may advocate on behalf of the interviewee. However it is essential that the interviewee provide answers or evidence in response to any direct question/s regarding a specific issue or incidents. At times, an interviewee may have trouble communicating and at such times the union representative may assist the employee to communicate a response. A support person is not to speak on behalf of an interviewee. However the support person can offer valuable assistance to the interviewee by providing emotional support, may take notes of the conversation, explain or clarify questions or assist the interviewee to communicate a response.
11. Allegation of a criminal nature Some forms of discrimination or bullying may be criminal offences. Actual or attempted assault, including indecent assault, is a criminal offence. Sending obscene items through the mail, electronically (email and other) and making nuisance phone calls can also be criminal offences. Where it appears that the allegation/s is of a criminal nature, inform the Human Resources team and seek assistance immediately. If at any stage there is a suspicion of criminal activity seek advice immediately.
Page 20 of 22 12. Flow Chart Issue occurs
Able to approach the person Not able to approach the person or an allegation of a serious nature
Issue resolved Issue not –matter closed resolved
Informal Complaint (verbal) Section 7
Informal Informal Formal Complaint (in writing) to Manager or HR Complaint Complaint not resolved – resolved Section 8.1-8.2 matter closed
HR Response Section 8.2
HR Director allocates Investigator (or takes action if allegation of criminal nature) Section 8.2 (Section 11)
Senior Manager meets with Complainant/s and Respondent/s separately Section 8.3
Investigation
Section 8.4-8.10
Investigation findings report Section 8.10
Appeal Recommended Action/s Section 8.11
Appeal – Not Appeal – upheld New Recommended Upheld Action/s Page 21 of 22 13. Supporting documents (SD) These are available from HR if not available on the Aspen Medical Quality System
SD 1 AMHRF78 Bullying & Harassment and Grievance Issue Form SD 2 AMHRF79 Bullying & Harassment Complaint Form SD 3 Bullying & Harassment Complaint or Appeal Acknowledgement memo SD 4 Bullying & Harassment Rick Analysis SD 5 Bullying & Harassment Investigation Timeline SD 6 Complainant Invite Letter SD 7 Complainant Interview Notes SD 8 Complainant Interview Notes Cover Letter SD 9 Respondent Investigation Invite Letter SD 10 Respondent Investigation Invite & Suspension Letter SD 11 Respondent Interview Notes SD 12 Respondent Interview Notes Cover Letter SD 13 Suspension Letter SD 14 Witness Invite Letter SD 15 Witness Interview Notes SD 16 Witness Interview Notes Cover Letter SD 17 Balance of Evidence SD 18 Record of Interviews SD 19 Bullying & Harassment Investigation Findings Report SD 20 Bullying & Harassment Investigation Outcome Letter SD 21 Appellant Invite Letter SD 22 Appeal Update – other interviewees Letter SD 23 Appeal Outcome Letter SD 24 Appeal Outcome – other interviewees Letter
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