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The Latest from the Blog

Can I Keep the Identity of the Complainant Confidential?

Harriet Stacey - Tuesday, December 23, 2014
Can I Keep the Identity of the Complainant Confidential?

When conducting an investigation into a workplace complaint, a number of variables need to be carefully managed. It is a given that once staff become aware of the investigation, reactions will vary widely. Be prepared for emotional responses to both the alleged incident, and the complaint itself. Further, bear in mind that alleged wrongdoers sometimes not only show hostility during investigations – they might in fact demand that you provide the identity of the complainant. In defence of their position, such participants see it as their right to know immediately who it was that complained. Yet what if the complainant has firmly requested that their identity remain confidential? In such awkward circumstances, you must of course maintain a professional detachment. Whether or not you can or should reveal the identity of the complainant is not a simple matter. We examine some of this complexity. 

Policies and promises

It is actually not unusual for a complainant to request that their identity be kept confidential. Before making any hasty promises to that effect, it is important to consider the legal background. Even if you and the employer make every effort to maintain confidentiality, it is quite possible that the complainant’s identity can still be revealed under Freedom of Information (sometimes Right to Information) legislation. It would be advisable to let the complainant know that this is a possibility regardless of your decision. 

Blowing the whistle
It’s important to note that in contrast to any FOI accessibility, state and federal whistleblower protection laws will safeguard the complainant’s identity in certain circumstances. This will most often be necessary where the complaint is connected with issues of far-reaching corruption, ethical breaches, or official misconduct. In fact, a failure to protect whistleblowers in such cases can be classed as an offence itself. In either case – FOI or whistleblower issues – the employer hopefully also has well-drafted policies explaining to staff the processes involved in complaint investigations, including the parameters around confidentiality. If this is not the case, you have a duty to carefully examine the complainant’s request for confidentiality before making a call one way or another. 

Gauging safety and sensitivity

In certain instances, it will not be fair or warranted to promise confidentiality regarding the complainant’s identity. And it might in fact lead to tainted findings if the accused party is not given a chance to fully defend themselves against the complaint made. If a court later determines that certain findings were made without sufficient attention to procedural fairness, then this evidence could be given minimal weight, or even dismissed. 

As the principle in Briginshaw sets out, in more serious cases, the balance of probabilities can only be met utilising high-quality, untainted evidence. For this reason, confidentiality undertakings should be given only after careful consideration. Yet sometimes the need to maintain confidentiality regarding the complainant’s identity will be entirely obvious and necessary. Where threats, safety and/or mental health issues form part of the equation for example, confidentiality might well be non-negotiable. By involving the employer in your preliminary information gathering, you will be able to gauge any particular sensitivity within the workplace.   

A question of motivations 

There is always the possibility that a complainant has brought the complaint simply on vexatious or false grounds. Workplaces can of course be hotbeds of dislike and grudges, where comments and actions can be misconstrued, distorted through rumour, or even entirely fabricated. Carefully assess if the complainant’s request for anonymity could in any way be impacted by these factors. Your professional judgement will then be required to assess the merit of the request, taking account of all the circumstances.

Tread with care
If a complainant requests that their identity remain confidential, ask yourself – what do the employer’s policies indicate? Have you explained potential FOI issues? Are there particular issues around safety and/or sensitivity? And could a vexatious complaint form part of this investigative equation? With good background information from the employer and an overall strategy of investigative transparency – you can face the anonymity request with a clear plan in place.

Want to Audio Record Interviews But Not Sure How?

Harriet Stacey - Tuesday, December 16, 2014
audio recording
Want to Audio Record Interviews But Not Sure How?

When you are called upon to investigate a workplace issue, the desire to get a clear and accurate picture of the problem is understandably strong. Recording the interviews seems like a good idea – you’ll have a word-for-word transcript and be able to concentrate more on the conversation. Yet it is important to consider a number of factors. Firstly – what are the legal issues around audio recording, secrecy and permission? Secondly, what sort of introduction is suitable to an investigative audio recording? And in terms of the resulting transcript, which kinds of requests are likely to arise? Recalling that procedural fairness must be at the heart of all workplace investigations, it certainly pays to do your homework before audio recording an interview.

Permission issues 

In many cases, interviewees will be quite happy to give permission for you to record the conversation. Others might be fairly reluctant or actually refuse to give recording permission at all. Knowing these variations, it might be tempting to simply record your discussions without permission. This is of course quite possible technologically. 

But is it legal? In Australia, the laws on improper and/or unlawful surveillance differ across jurisdictions, and it is important to understand the stance taken in your state or territory. In many cases, permission will be implied if the person is told of the recording and does not overtly object. Yet if permission is refused and a recording is nevertheless made – or is made in secret without any discussion – the material will almost certainly have been obtained unlawfully. Such recordings may nevertheless still be admissible in the federal jurisdiction (including the FWC) in accordance with the Evidence Act 1995 Cth. Admissibility will hinge upon elements such as whether or not the conversation was ‘private’, the probative value of the evidence, and the level of impropriety involved in the secret recording. 

Important introductions 

Once the tape is rolling (or device is capturing!) your first crucial task is to make introductions that are clear, welcoming and comprehensive. Everybody in the room should be given the opportunity to return your greeting, and state their name and work title for the record. You can also give a brief run-down of the purpose of the interview, giving participants a chance to ask any questions about the process. 

As well as helping everybody to find their bearings, such general chat can serve to ease everybody into the interview as they work out who’s who. And a further benefit will be the accurate identification of voices by the person typing the transcript. In the bid for accuracy, it is vital that the transcript represents a true record of ‘who said what’. If a subsequent transcript of the conversation reveals that the interviewee was uncertain, confused or pressured in any way, then the probative value of the material in future proceedings might be markedly reduced. Providing open, informative and clear introductions will help to ensure that procedural fairness is evident at all times within the workplace interview. 

Transcript uses 

After the workplace interview, the audio recording will be converted to a typed transcription. Request that the interviewee read and sign the transcript to confirm accuracy. But what if a person refuses to sign? Such a situation can arise for a number of reasons, not least of which can be that they are upset and shaken at having talked through the workplace issues. Yet, if we think logically – the entire discussion is there in aural form and can be accessed at future times, such as in court. This is why a transcript is in many ways superior to a statement from the interviewer constructed from written notes; arguments can be made that the interviewee was misrepresented in cases where only notes were taken. 

Be aware also that an interviewee might ask for a copy of the transcript. It is best to explain that, because the employer is coordinating the investigation, it is up to them to decide on what investigation materials might be given out. Importantly, privacy issues will be relevant. For example if a worker goes back to the office waving a transcript with people and incidents named therein, the investigation’s overall viability could be cast in doubt. 

Obtaining an audio recording of a workplace interview is an excellent idea. Accuracy will generally be high, assisting clarity throughout the investigation and beyond. Keep in mind best practice for recording permissions, introductions and transcript uses though – consideration of these variables will help to ensure that the overall quality of your interview is greatly enhanced.

Confronting Misconduct: Insights from the Public Service

Harriet Stacey - Tuesday, December 09, 2014
Confronting Misconduct: Insights from the Public Service

The recent release of the 2013-14 Australian Public Service (APS) State of the Service report provides some interesting kernels of data around workplace misconduct, including corruption and bullying. In particular, the report paints quite a discomforting picture of misconduct being on the increase – despite everything that the APS strives for via its statutory code of conduct, values statement and codified employment principles. 

Employers beyond the public sector can take valuable lessons from the report regarding the insidious nature of workplace misconduct. Beyond issues of performance and discipline, activities such as bullying and corrupt practices can have significant impacts on workplace health, staff morale – and the bottom line. 

Workplace trends 

So what elements of workplace misconduct does the vast APS face? And is this just a government thing – or should all sectors actually take heed of these trends around misconduct? The key issues raised in Appendix 6 of the report include: 

  • Misconduct accounts for 1 in 3 queries brought to the APS Ethics Advisory Service. 
  • Finalised code of conduct investigations rose in the current reporting year by 15%, from 516 to 592 investigations.
  • Substantiated breaches also rose in the same period from 75% to 81%, with a broader 20% increase since 2011. 
  • Interestingly within reporting trends, the majority of people in the workplace reported misconduct through clearly established mechanisms, such as an ethics unit or designated person in HR. In other circumstances, they sought outside help, such as from helplines or police.   
  • A disturbing 17% of employees experienced harassment or bullying, with a further 21% witnessing these behaviours in the workplace. 
  • The number of victims feeling able to report such misconduct fell from 43% to 37%. As some consolation, the reporting by staff who witnessed the harassment or bullying of others rose over the year. 

Sizing up the problem

There are certainly some sobering numbers there: misconduct and investigations are up, as are substantiated breaches. Yet victims don’t appear to be confident in reporting breaches. It is noble – yet unfortunate – that a victim’s colleagues will often need to report misdeeds. One glimmer of hope from the report is that employees will tend to use clear mechanisms for reporting misconduct, if these are provided. 

This is important to keep in mind; make the path clear and misconduct will be addressed before problems grow and/ or become entrenched. 

Communicate the basics 

So what do we take from these figures? Firstly, it is crucial to develop good communication between management, HR and other staff about the rights and responsibilities of everyone in the workplace. This includes clear induction training on misconduct, intranet updates and seminars, and providing informal opportunities in teams to discuss both misconduct and reporting paths. And it is imperative to explain the meaning of specific terms such as misconduct, corruption and bullying to all employees – don’t expect their knowledge to be complete, simply as a result of common-sense. Trainers are regularly stunned by the divergence of opinion about what is and is not appropriate behaviour in the workplace! 

Provide a clear reporting path 

In terms of the best mechanisms for report misconduct and bullying – just remember one word: accessible. Thinking logically, if a stressed worker in in danger of sustaining a workplace psychological injury due to bullying… or the employer’s profits are fast dwindling through misappropriation… the last thing a victim or witness needs is a complex reporting path. And in the longer term, the health, safety, performance and productivity of any business will improve when misconduct has been headed off at the pass. Forget dense forms and lengthy chains of discussion – have one or two simple methods that staff can utilise when reporting. Above all, encourage and commend the actions of any staff member who comes forward. Regardless of outcome, it is important to have issues of potential misconduct brought up in a timely way. 

Lessons to learn 

The mammoth APS is an employer that necessarily keeps an eye on the scourge of workplace misconduct. As evidenced in the State of the Service report, misconduct is disappointingly on the rise. 

Employers of all sizes can certainly take lessons from these growing numbers, ensuring that processes and training to counter misconduct are appropriately designed and embedded across the business.

Harriet Stacey 28 Jan 2014

Following the recent anti-bullying amendment to the Fair Work Act, WISE CEO Harriet Stacey talks about the importance for employers to be proactive and effective in how they deal with workplace bullying.