Phil O'Brien - Mediating bullying complaints – Investigating workplace behaviour

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Phil O’Brien, Workplace Investigator, Wise Workplace/Teddington Legal delivered this presentation at the Inaugural Workplace Bullying Conference. This event brings together HR, WHS Managers, Workplace Psychologists and Academics to discuss policy and practices for combatting workplace bullying.

Find out more at http://www.informa.com.au/workplacebullying_13

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Phil O'Brien - Mediating bullying complaints – Investigating workplace behaviour

  1. 1. Mediating bullying complaints – Investigating workplace behaviour Phil O’Brien WISE Workplace Investigations NEED A SPECIALIST – ENGAGE AN EXPERT
  2. 2. Phil O’Brien     Solicitor with Teddington Legal Workplace Investigator/HR Consultant with Wise Workplace Former NSW Police Conducted numerous complex workplace investigations, disciplinary, fact finding, grievances for government, Commonwealth, corporate and not-for-profit organisations  Developed and delivered training programs within the private sector and NSW government agencies and AHRI.
  3. 3. Overview  Effectively managing disputes and complaints  Steps to identify, respond and manage a claim  Fair mediation techniques
  4. 4. Effectively managing disputes and complaints NEED A SPECIALIST – ENGAGE AN EXPERT
  5. 5. Effectively managing disputes and complaints Upon receipt of a complaint, the Manager or HR Manager must decide whether to     Investigate or Mediate or Investigate then mediate Do nothing and hope It is important to identify and understand the complaint or the dispute before attempting to deal with or investigate the issues.
  6. 6. Effectively managing disputes and complaints Pro and cons - Investigation       Full disclosure of the facts - generally Duty of care issues Cost Time Effect on the parties Effect on the workplace It is important to realise that investigations invariably lead to a situation where there is the perception of a winner and a loser.
  7. 7. Effectively managing disputes and complaints Pro and cons - Mediation      Cost Time Effect on the parties Effect on the workplace May not address the issues For mediation to work there must be full co-operation of the parties who are working toward a resolution outcome. In many cases the complainant will desire more action than the dispute being resolved.
  8. 8. Managing expectations The complaint.  “I made a complaint therefore I am in the right”  “I want something to happen to the person I have complained about” The respondent  “This complaint is bogus, I want something done about the person who complained about me”
  9. 9. Steps to identify, respond to and manage a claim/complaint NEED A SPECIALIST – ENGAGE AN EXPERT
  10. 10. Steps to identify, respond to and manage a claim/complaint  What is the complaint about?  What happened?  When?  Where?  Who are the parties involved?  What is the relationship?  Is there any history?  Are there any witnesses?  Has there been a breach of a policy, CoC or legislation?
  11. 11. Complaint analysis chart
  12. 12. Steps to identify, respond to and manage a claim/complaint After reviewing the claim/complaint return to the question Investigate or mediate or Investigate then mediate When dealing with a claim or complaint there are certain questions you should ask
  13. 13. Steps to identify, respond to and manage a claim/complaint Engage an expert or ‘do it yourself’? When making that decision an employer must ask the following questions:  Do we have someone with the necessary expertise to conduct an investigation/enquiry or to mediate the issues  Do we have someone with sufficient experience in conducting an investigation/enquiry or to mediate the issues
  14. 14. Steps to identify, respond to and manage a claim/complaint If you decide to investigate it is likely that the investigation will have one of three outcomes: 1. Allegations substantiated = Complainant is the winner. 2. Allegations not substantiated = Respondent is the winner. 3. Allegations unable to be substantiated = Respondent is the winner by default, however the matter remains largely unresolved.
  15. 15. Steps to identify, respond to and manage a claim/complaint When are allegations unable to be substantiated?  Insufficient evidence  Contradictory evidence (he said, she said)  Lack of independent supporting evidence – no witnesses or witnesses do no wish to come forward What’s next?  Do nothing – You have investigated  Mediate
  16. 16. Fair mediation techniques NEED A SPECIALIST – ENGAGE AN EXPERT
  17. 17. Fair mediation techniques What is wrong with the word mediation? It conjures up a vision of sitting in a room with a person whom you have made a complaint about or who has made a complaint against you and trying to work things out when in fact you don’t want to be within 100 miles of the person. What’s wrong with mediation?  Nothing if it is done right  Everything if it is done wrong I prefer the term Dispute Resolution Intervention. (DRI)
  18. 18. Fair mediation techniques If the employer is going to conduct an internal dispute resolution intervention does the person/s nominated:  Have experience designing and conducting dispute resolution interventions?  Have the temperament and patience to deal with opposing agendas and the (often) insistence by both parties that they are in the right A poorly conducted dispute resolution intervention can make things much worse.
  19. 19. Fair mediation techniques My preferred method – Shuttle style mediation or DRI I act as a negotiator. I relay what each party wants to the other, aiming for the parties to meet somewhere in-between I really check the “wish list” with the parties  Step 1 – meet with the complaint o Build rapport and gain an understanding of their side of the story o Get them on-board with the process, outline the benefits in resolution o Get their “wish list”
  20. 20. Fair mediation techniques My preferred method – Shuttle style mediation or DRI  Step 2 – meet with the respondent o Build rapport and gain an understanding of their side of the story o Get them on-board with the process, outline the benefits in resolution o Get their “wish list” o Talk about the complaints “wish list” and start to get some concessions/agreement.
  21. 21. Fair mediation techniques My preferred method – Shuttle style mediation or DRI  Step 3 + – meet with complainant & respondent o Work through the “wish lists” o Help the parties come to a win/win agreement. o Final steps - ensure that any resolution outcome is workable within the business. o Draft an agreement based on discussion with the parties. o Bring the parties together for a final discussion about the agreement. o Gain a signed agreement between the parties.
  22. 22. Final points to remember NEED A SPECIALIST – ENGAGE AN EXPERT
  23. 23. Final points to remember Investigations  Expertise and experience counts  Be aware of procedural fairness and the rules of evidence  Do not breach you own policy, CoC or legislation by the way in which you conduct an investigation. Dispute Resolution  Expertise and experience counts  Make sure the parties are happy and willing to participate  Do not breach you own policy or CoC or legislation by the way in which you manage the issues.
  24. 24. NEED A SPECIALIST – ENGAGE AN EXPERT

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