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WISE Workplace is a multidisciplinary organisation specialising in the management of workplace behaviour. We investigate matters of corporate and professional misconduct, resolve conflict through mediation and provide consultation services for developing effective people governance. 

Through the delivery of professional development opportunities and self published practitioner guides, we are the centre of excellence for the ongoing professionalisation of workplace investigations across Australia.

The Latest from the Blog

Dealing with Pornography in the Workplace

Vince Scopelliti - Thursday, November 21, 2019

Unsurprisingly, the access to pornography can be extremely problematic in the workplace. Not only does the access to pornography at work open up a minefield of possible harassment and other sexually motivated complaints, it contributes significantly to presenteeism (where staff are physically present but not concentrating on their jobs).

Indeed, according to a report in the Financial Times, 45% of daily viewers of popular pornography compilation site Pornhub, accessed the site between standard business hours of 9am to 6pm. In addition, staff accessing using company resources to access unauthorised websites, can pose a significant cyber security risk to businesses.

Given the almost ubiquitous presence of smartphones and tablets in the workplace, it is becoming increasingly difficult for employers to address and manage the increasing issues related to pornography access in the workplace. Nonetheless, care and consideration must be taken when investigating allegations of employees having accessed pornography while at work. 

what does the fair work commission think?

The Australian employment relations tribunal has made its position on pornography being accessed in the workplace clear. For example, in the decision of Allan Croft v Smarter Insurance Brokers Pty Ltd (U2016/4415), Commissioner Cambridge commented that: "particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/or storing hard-core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work"

It follows that there is clear support for termination of employment on the basis of accessing pornography - but only if there is a clearly drafted behaviour policy which explicitly prohibits the accessing of pornography on work equipment or during work hours. 

What role does company policy play?

It is not sufficient for an employer to simply discipline or dismiss an employee for accessing pornography at work, without having provided adequate notice of the company's position on pornographic materials.

This means that employers should have in place a clearly articulated and freely available policy on the topic of unacceptable workplace behaviour and conduct. That policy should explicitly set out what is considered improper use of company equipment, technology and Internet access. There should also be a statement to the effect that the use of company equipment and resources should be confined to work-related activities.

In addition to drafting the policies, it is essential that employees are both made aware of and understand them. Ideally, there should be regular training on what is considered to be acceptable behaviour in the workplace.

Action by employers 

Notwithstanding the support of case law, employers should still tread with caution in relation to disciplining or terminating employees for accessing and/or downloading pornography.

It is crucial that employers not act rashly by summarily dismissing staff without following due investigatory processes. When making decisions in relation to discipline or dismissal, the procedures set out in the relevant company policy must be adhered to. This will best protect the employer against subsequent proceedings for unfair dismissal.

Although employers should not deviate from usual investigation practices when dealing with pornography in the workplace, it is important that this type of behaviour is dealt with swiftly and decisively. This is in part because other employees who may be sent or otherwise exposed to pornography could also make claims for sexual harassment.

Addressing employee conduct regarding matters of internet usage and technology is a challenge for all modern workplaces. If your organisation requires assistance in enforcing policies to ensure matters of misconduct are dealt with in a fair and considered manner, WISE delivers training as well as investigation services to help you meet the challenges that arise in contemporary workplaces.

Audio Recording or Written Statements?

Vince Scopelliti - Thursday, November 07, 2019

Appropriately recording evidence is a crucial part of workplace investigations.

For investigators, this can cause a significant dilemma as to whether it is preferable to rely on written statements, or obtain audio recordings of interviews conducted during the investigation.

Here are a few of the main considerations for each method.

Audio recordings 

An audio recording is effectively a verbatim record of everything that is said during the interview process. It may be particularly useful to conduct audio recordings during initial witness or party interviews, so that these can be transcribed and used to confirm the evidence which has been gathered.

It is essential that all parties are made aware that interviews will be recorded. This should also assist in setting expectations that nothing said during the interview can be considered "off the record".

Significant advantages of audio recordings include:

  • Simplicity. It is easier for the investigator to conduct an interview without having to take contemporaneous notes. The practice of taking notes can be disruptive to the interview process, breaking both the interviewer's and the interviewee's concentration and the "flow" of the conversation.
  • Creation of an accurate record. Written statements may be considered to be ambiguous or open to interpretation - however an audio recording is fairly difficult to refute.
  • Reinforcing significance of the process. If an audio recording is produced, involved parties can be left in no doubt that an investigation is being taken seriously.
  • Flexibility. If it is difficult to arrange for a party to be interviewed in person, modern technology means that interviews can be recorded by telephone or video. This introduces greater flexibility into the recording process.
It is important to remember however, that it can be easier to contest what is recorded in a transcript, rather than in a written statement which the interviewee has been asked to sign.

written statements

By contrast, a written statement is a document which is produced as a summary of the contents of the interview. Generally, it is produced after the interview, based on notes taken by the interviewer or an offsider. 

Although it is extremely unlikely that every word said or every implied nuance during the interview will be recorded in a written statement, a key advantage of this type of evidence gathering is that witnesses will have the opportunity to review their written statement. The interviewed party can then sign the statement, or refute the contents.

In order to be effective, the statement should be produced as soon as possible after the interview has concluded, while it is still fresh in everybody's memory.

procedural requirements for interviews 

When determining whether an interview should be supported by a written statement or an audio recording, it is important to bear in mind that certain organisations or agencies have policy and/or procedural requirements preferring one method of evidence collection over the other. Further, in the event that a witness prefers not to have the interview recorded, an investigator cannot rely on this method.

The interviewer should give thought both to the personality of the interviewee, and the subject matter of the interview, when determining the best method. If it is intended that the interview proceed on a casual or somewhat informal basis, relying on a recording is likely to be considered overkill.

Audio recording is also reliant on technology functioning properly. In the event that a recording device malfunctions or does not record properly, there is a risk that the interview will not have been recorded at all. This could mean that the entire process needs to occur again - or alternatively, that there is no evidence supporting the interviewing process.

THe importance of flexibility in investigations

Unless company policy dictates one method of evidence collection over the other, this is always a decision that should be made based on individual circumstances.

As is generally the case in workplace investigations, there is never a "one size fits all" approach that can be utilised on every occasion. Investigators must be prepared to make an assessment on which method of evidence collection is appropriate on a case-by-case basis.

WISE investigators have extensive experience in conducting investigative interviews and collecting evidence, whether by audio recording or written statement. If you require established procedures to be followed or would like flexibility during the investigation process, WISE offers investigation services to assist. Additionally, if your organisation is seeking advice and training on interview techniques, WISE offers short courses and resources to upskill your staff.

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

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