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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

Rules of Evidence in Workplace Investigations

Vince Scopelliti - Wednesday, December 04, 2019

Although workplace investigations are not expected to be conducted in the same way as a police investigation, it is essential to keep in mind the principles of evidence which might apply. This is particularly important against a backdrop where many workplace investigations end up in the Fair Work Commission or otherwise in a contentious, litigated setting.

We examine the rules of evidence which should be followed to improve the chances of successfully defending against a claim.    

What are the rules of evidence as a whole? 

The most important rule for workplace investigations is whether the evidence to be presented is relevant to the matters at issue. As the decision of Robinson v Goodman [2013] FAC 893 demonstrates, this is determined by considering whether the evidence is of such relevance as to be "important or of consequence". In other words, it should "affect the probability of the existence, or non-existence, of a fact in issue".

The principle of hearsay evidence is also important to workplace investigations, as is the introduction of tendency evidence. 

Hearsay relates to information obtained via rumour or through a second party. In a courtroom setting, information is deemed to be hearsay in virtually any circumstance where it has not been directly conveyed to the person testifying about it. In the investigatory setting, any hearsay evidence can be damaging to the weight placed on that evidence or testimony as a whole.

Tendency evidence considers whether past behaviour should be used to prove the current matters in question. When determining whether to rely on tendency evidence, it is important to weigh up the potential advantage against the possibility of causing damage to an accused by suggesting that their past behaviour dictates their future behaviour. 

why do the rules of evidence matter 

Any workplace investigation should be conducted having regard to the possibility that the matter could end up in the Fair Work Commission or a court. In the event that this occurs, any investigation which has clearly failed to observe basic rules of evidence may result in an adverse finding against the employer. 

If an investigation relies on evidence that is ultimately inadmissible, then the employer might find itself in a position where it cannot back up its defence in any way which the commission or a court will take into account. 

An additional factor to be taken into account is the Briginshaw principle.  This notes that, depending on the seriousness of any given allegation, the strength of the evidence required to establish proof may change. This means that a tribunal must be satisfied, on the balance of probabilities, that the information before it and on which it is being asked to decide is based on clear, cogent and strict evidence. 

The requirement for a matter to be determined on the balance of probabilities is reaffirmed in section 140 of the Evidence Act 1995 (Cth).

The importance of following the rules of evidence in workplace investigations cannot be understated.  All investigators should consider these rules when collecting and analysing evidence that arises from a workplace matter.

WISE investigators are experts in the field, and with years of experience in undertaking even the most complex workplace investigations, are able to ensure your investigation is fair and legally sound. If your organisation needs assistance with a workplace investigation, WISE provides full as well as supported investigation services.

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

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.

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