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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

Substantive, Not Superficial: A Call to Improved Procedural Fairness

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses, had experience providing gastronomic care at another facility and had been approved by Disability SA. She believed she had been approved to provide that care.

Two days later, the employee was called without warning into a disciplinary meeting with HR where her lack of certification and other qualifications were discussed again.

The HR officer stepped out of the disciplinary meeting for five minutes.

On return, the officer handed the employee a summary dismissal letter which recorded that the employee had received an opportunity to respond to a serious misconduct allegation. the letter terminated her employment with immediate effect.

FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”

FWC Findings

Ordinarily, an employee performing a medical procedure on a client, knowing they lacked the required certification would justify summary dismissal. Anderson acknowledges the care worker’s assumptions can be reasonably criticised, but also found that the “unique circumstances of this matter” with factors that significantly “mitigate the seriousness of the conduct.”

Anderson found the lack of notice and the timing of only 48 hours between the instruction and the disciplinary procedure to be harsh and unfair. The process also had only superficial procedural fairness, since the employee’s ability to respond was limited and she was not fully warned of the risks to her employment or afforded the right to support during the process.  Anderson also found that the urgent treatment of the matter was unnecessary. 

Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).

what can we learn from this case? 

Matters involving dismissal must be handled with utmost sensitivity, caution and procedural fairness even in matters of perceived urgency. There is often grey area in matters of misconduct that may seem black and white. To ensure you are best informed and equipped to handle these challenging circumstances, WISE offer expert third party HR services including training, investigations and reviews.

Our Approach to COVID-19

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

Reliable solidarity in the face of covid-19:

We take the health and wellbeing of our people, clients and the broader community seriously. Our risk management team are meeting daily to ensure our continued service, support and protection to our clients, team and community.

We are acting in line with government guidelines and have taken additional steps to minimise risk of infection and impact on our community. We will evaluate and act on updates and changes to the COVID-19 situation as they occur, modifying our approach as necessary.

business continuity - supporting you.

We are fully resourced to support clients. We are monitoring the development of COVID-19 daily and will keep clients informed if there are any changes to our operational approach or capacity.

Our team are fully equipped to work remotely, with security and technological support in place to ensure our customer service continues to exceed expectations with care, teamwork and integrity.

Our ability to conduct business is unchanged, and we will continue to work together to care for each other and for our clients and investigators, with heightened and ongoing health and safety measures in place and a focus on customer service.

In line with this, when conducting workplace investigations, our investigators will now enquire about Covid-19 risks at workplaces, homes and other locations prior to their attendance in order to minimise risk to all parties, as well as taking additional hygiene precautions. Where risk are identified, we will be conducting interviews via video or teleconference form to ensure the health and safety of our team, clients and community.

Rest assured we are able to continue to support our clients during this period of uncertainty. We are available for contact as normal, and encourage you to reach out if you require further support.

How Fact-Finding and Disciplinary Investigations Differ

Vince Scopelliti - Tuesday, February 25, 2020

When dealing with allegations of staff misconduct, employers must be able to clearly delineate between fact-finding and disciplinary investigations. 

This includes communicating the difference to staff involved in the process.

fact-finding vs formal investigation

A 'fact-finding' process is often a necessary preliminary step in determining whether a disciplinary investigation is warranted. Following an incident or complaint, a third-party must interview involved parties to obtain objective information and determine whether the event merits a more detailed investigation.

Alternatively, the results may be sufficient to establish that there was no misconduct, or that the results of any further investigation are unlikely to provide any clear determination. Fact-finding may initially be a fairly informal process, although it should still be clearly documented.

It is extremely important that staff are made aware that a fact-finding process is simply that - not accusatory but only to gather information. This should be clearly spelled out in the organisation's policies and procedures, which staff participating in the process should be pointed towards.

By contrast, once an investigation has commenced, the process becomes much more detailed and formal. This includes the preparation of specific witness statements, collection of detailed information and supporting evidence, and the preparation of a report. That report will be relied upon by management and other decision-makers in determining the consequences following an investigation.

Disciplinary investigations are formal processes that involve specific allegations being put to employees. They are surrounded by confidentiality obligations, and are intended to determine whether an incident was a breach of policy which warrants disciplinary action, and not whether an incident actually occurred.

It is important to bear in mind that the point of a disciplinary investigation is to protect the rights of an individual subject to potential disciplinary proceedings.

communicating the process to the employees involved

Parties engaged in a fact-finding process should be advised clearly why they are involved.

Although it is an informal process, staff should be told that they are being interviewed to outline and assess matters of concern before management can determine a course of further action.

The purpose of the meeting should also be clearly outlined, as well as its status as part of a preliminary assessment or a potential precursor to a formal investigation. However, although the general nature of the query needs to be raised, there is no need for specific information to be divulged.

Before potential respondents are interviewed during the fact-finding process, management should give serious consideration to whether it is essential to do so. If it really is required, the potential respondent must be told that the next steps could involve moving to a formal investigative process and potentially the issue of misconduct allegations which will require a formal response.

what happens when the line becomes blurred

At any point when fact-finding starts getting too close to asking specific questions related to the subject nature of any potential complaint, it is straying towards an informal disciplinary investigation.

This is rife with potential implications for the business, particularly if formal disciplinary processes are commenced as a result. The rights of the accused employee are at risk, and any conduct endorsed by the business could result in unfair dismissal or similar actions by the employee. At this stage, it is recommended that a business involve the services of a formal, external investigator to finalise the process.

If you want to protect your business, draw a real distinction between fact-finding and disciplinary investigations. This can be achieved by using an external provider for all disciplinary proceedings. WISE Workplace offers independent, unbiased and expert third-party investigation services to support you every step of the way - from unpacking the facts of a workplace problem to analysing all sources of evidence raised in relation to misconduct. 

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