Bullying eBook

WISE eBook:
How to Respond to Workplace Bullying.
Only $14.99!

Buy your copy now

WISE Training:
Government accredited, diplomas, certificates and more

Enrol now

The Latest from the Blog

Investigating Fraud? When Do You Have to Tell the Respondent?

Harriet Stacey - Tuesday, October 28, 2014
Investigating Fraud
Investigating Fraud? When Do You Have to Tell the Respondent?

The possibility that an employee might be committing fraud can raise many emotions. As with other misconduct, disappointment can be pronounced. When fraud is suspected against either the business itself or customers, plain anger towards the potential culprit can also arise. It is this high emotion that creates the necessity for cool heads in any fraud investigation. If you are involved in an investigation where fraud is alleged, timing and a methodical plan are crucial to ensure that the process is sound. Depending upon the nature and extent of the fraud, the time at which the respondent should be told and/or interviewed can vary. The quality of any documented evidence you collect can have a notable effect on admissibility or weight in any later court proceedings. For this reason, adhering to procedural fairness in the workplace investigation will be vital. 

Get prepared

Your workplace investigation plan should include a basic timeline of actions. Top of the list will be the gathering of information relevant to the allegations of fraud. Be careful about how and from whom this will be collected. At this stage, as few people as possible should be involved in order to maintain confidentiality and the integrity of the investigation. Collect interview notes, documents, relevant screen dumps and any other physical evidence that purports to implicate the respondent in the fraudulent activity. This is also a good time to fully assess any possible motivations or overt emotional issues with the informant/s. Any later interview with the respondent needs to be based upon available facts – not any aspersions cast by an angry individual. Make a decision on any need for immediate action, particularly whether police need to be called if an employee is AWOL with fraud proceeds, for example, or data or money is currently being misappropriated. Once you have enough valid information, decide upon your next steps. It may be that the allegations against the respondent are clearly groundless. Perhaps there was a mere accounting error, for example. But if the allegations appear to have some substance, it might well be time to draft appropriate interview questions. Sometimes, the first person you talk to after the claimant is the respondent - but only after other documentary evidence has been secured. This gives them an early chance to explain their story, plus reduces the chances of workplace gossip or slander about the respondent snowballing unfairly. 

The interview

Having secured an interview time with the respondent, think through the nature and order of questions that you need to ask. The basic purpose of the meeting should be explained, without any blunt statements or accusations about the alleged fraud. It can help to be quite specific about the concerns raised by any informants: “There are concerns being raised about some anomalies that Brian found in the customer invoicing drive,” or “Your employer has some concerns about repeated discrepancies in reconciliations over the last six months”. Recalling the imperative for procedural fairness in the workplace investigation, maintain this objectivity throughout the remainder of the interview. Allow sufficient time for explanations, and ask inquisitive questions that demonstrate your open mind throughout the process.

Cater for reactions

Fraud is a serious accusation. Whether or not the respondent is involved in such behaviour, their individual emotions of indignation, shame and/ or anger might well surface. Assess whether the interview needs rescheduling, if a support person is needed, as well as any requests for legal representation. Also give the respondent options for response. Indicate that an immediate response is not required and they might prefer to respond at a later (agreed) time. Explain the remainder of your investigation plan and associated timeline for actions, in order to provide some sense of order to what might well be a moment of shock for the respondent. 

Cool heads rule 

The alleged fraud might tempt employers, owners and managers to simply confront the respondent in angry indignation. Perhaps understandable – but such action must be avoided in order to maintain the integrity of the investigative process. Remember, your objective in carrying out a well-constructed workplace investigation concerning the alleged fraud is to gather quality evidence in a fair and consistent manner. How and when to let the respondent know can be a delicate matter, dependent upon the nature and urgency of the facts in question. 

For training in the best ways of handling this type of investigation, WISE Workplace offers a Certificate IV in Government Fraud Control and a Diploma in Government Fraud Control.

Shades of Grey: Raunchy Material and the Lessons from Shea

Harriet Stacey - Tuesday, October 21, 2014
Lessons from Shea
Shades of Grey: Raunchy Material and the Lessons From Shea

In the recent costs hearing for Shea v EnergyAustralia Services Pty Ltd, Federal Court Justice Jessup helpfully took the opportunity to summarise the findings of Justice Dodds-Streeton regarding the original unfair dismissal proceedings. There, Ms Shea had unsuccessfully sought relief against alleged adverse action on the part of her employer. 

In a bad light

 Ms Shea’s accusations were substantial and relied upon various sources of information for purported corroboration. In his findings against the applicant, Justice Jessup spoke with evident disapproval regarding both the quality and the means of acquisition of Ms Shea’s evidence. Of particular note, sexually explicit text messages between two staff members had been retrieved forensically by Ms Shea as purported proof of sexual harassment in the workplace. His Honour stated that Ms Shea’s methods of obtaining both the phone and text messages ‘did not show her in a good light’, aligning with the substantive trial judgement as to the ‘irregular’ nature of the acquisition [57-58]. 

Unseemly acts 

But the inadmissibility of the texts – and the resultant forensic report – was not the only issue in question. Justice Jessup quoted with approval the original finding of Justice Dodds-Streeton – the text messages represented nothing more than ‘a private exchange between consenting adult sexual partners’ [quoted at 56]. Further, this private nature actually placed a duty of confidentiality upon any readers of the texts. 

Thus, not only was the material found to have been obtained abnormally, usage of the forensic report was both irrelevant to the workplace issue at hand, and malicious in nature. His Honour went even further in his disapproval, noting the ‘unseemly manner’ in which the phone was obtained, with a very obvious agenda in play to cause ‘embarrassment and humiliation’ to the other party [59]. 

Eyes on the court

In administrative proceedings, the rules of evidence don’t formally apply. So there is a sense in mediations, conciliations and reviews that parties can place it all on the table in order to find resolution. The idea here is that people can often experience a greater sense of procedural fairness in a less formal environment. Yet Shea reminds us of the considerable pitfalls that can occur in court proceedings when undetected irregularities have coloured earlier processes – inadvertently or otherwise. It is crucial that internal and external workplace investigators establish quality control mechanisms throughout all stages of information collection. Keeping any future court proceedings front of mind can assist investigators in overcoming the kinds of evidentiary taints that befell the applicant in Shea.   

Quality counts 

And where certain key material can only be collected in an unusual manner, corroboration of the information obtained can assist in enhancing overall quality and future admissibility. Potential evidence should be free of irregularity, irrelevance, confidentiality breaches and/or personal agendas. Certainly, administrative processes won’t require the stringent attention to rules of evidence that apply in court. Yet the ‘juiciest’ piece of information brought out at in an administrative forum might well become the trial stage’s most useless piece of scurrilous and ultimately inadmissible evidence. Worse – if found to be obtained for personal or ‘unseemly’ reasons, a hefty costs ruling is certainly a possibility for the parties involved.

What are Terms of Reference? Do You Need Them?

Harriet Stacey - Tuesday, October 14, 2014
Terms of Reference
What Are Terms of Reference? Do You Need Them?

Terms of reference (TOR) form a foundation stone for the commencement of any workplace investigation. Much like a recipe, they set out the core people and components of the investigation, as well as the boundaries and methods to be utilised. Without solid terms of reference, an employer’s well-meaning attempt to gather information and fix a workplace problem can fail, or cause even more problems. As well as establishing an understanding of what is required and by when, TOR create an excellent framework for the more detailed investigation plan. Terms of reference can prevent such pitfalls as misunderstandings, unintended breaches of privacy, and negative effects on relationships. 

When should the TOR be developed?

There are no hard and fast rules regarding how and when TOR should be drafted. Some employers start with a Statement of Complaint and flesh out the terms of the proposed investigation based upon this central concern. Others call upon the services of a workplace investigator to actually assist in drafting TOR, particularly where a workplace problem is vast, sensitive, and/or complex. Sometimes it is important to wait and collate some preliminary materials prior to pinning down the exact terms of the investigation. In any event, it is important to start working on your TOR sooner rather than later, and certainly once a workplace investigation is confirmed.  

what will the tor include?
The terms of reference represent what the employer and the workplace investigator have agreed upon. Not surprisingly, both parties are entering into a human territory where all sorts of sensitivities can crop up – emotional, occupational and legal. It is common sense that the TOR will be designed with these issues in mind, creating a clear framework for the investigation. In essence, the TOR should contain the ‘three R's’ of an investigation – the reason, the remit (or scope) and the report. 

The reason section of a workplace investigation TOR will include the general purpose of the investigation, the people and incidents known to be involved, and the types of questions that need answering. The remit or scope sets out the boundaries of inquiry, including documents, people and activities that can be explored by the investigator – and those that cannot. It also includes what is required from the investigator in terms of deliverables, such as interim reports and final actions. For example, this part of the TOR will specify if the investigator is simply fact-finding or is working with a view to dispute resolution or discipline. The TOR then specify what form the final report will take, who can be supplied with copies, and when it is due. Where no report is required and an oral discussion is preferred, the scope and purpose of this discussion should be noted.

What can the TOR achieve?
 As mentioned above, the circumstances leading to the need for a workplace investigation can be quite fraught. Concise and clear terms of reference help to ensure the smooth running of the investigation. They can prevent irrelevant issues being raised (such as old wounds) and provide an element of professional objectivity. Considering the need for procedural fairness in all aspects of employment law, TOR provide the means by which emotive or biased considerations can be eliminated from the investigation. Further, sound terms of reference provide an excellent starting point for the drafting of a workable investigation plan. For both employer and investigator, the chances of misunderstandings are reduced in relation to the many aspects of the investigation’s reasons, remit and desired report. Put simply, good terms of reference can be a guiding light through the sometimes-choppy seas of a workplace investigation.


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.