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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

Preventing the Sexual Abuse of Adults with a Disability

Vince Scopelliti - Wednesday, September 12, 2018

Sexual abuse of people with a disability is a crime that unfortunately is often misunderstood, undetected and ultimately overlooked by organisations. Individuals with a disability are often uniquely vulnerable to sexual and other forms of abuse and deserve both strong protection and swift action in relation to any such allegations. 

Organisations responsible for the care of people with a disability are entrusted with the tasks of fully understanding the signs of sexual abuse, dealing with disclosures, and putting in place robust procedures for prevention and action.

the issue of consent

For organisations or individuals who care for a person with a disability, it can at times be difficult to ascertain the presence or absence of consent to sexual activity, particularly where the person accused is a spouse, partner or other close companion.

Part of this uncertainty is tied to society's historical myth that people with a disability are inherently non-sexual. Yet at the other end of the spectrum is the very real potential for sexual exploitation and abuse of people with a disability. Navigating the difficult issue of consent to sexual activity in these contexts requires a nuanced approach to each individual allegation. 

The above-mentioned nuanced approach only applies to adults with a disability. When children with a disability are concerned, the standard rule applies that children under the age of consent are unable to consent.

signs of abuse

In some cases, the individual with a disability will be able to quickly and clearly articulate their complaint of sexual abuse in care. 

However, just as each person with a disability is unique, so are the types and complexities of presenting issues. This can create challenges for those seeking to prevent and/or investigate sexual abuse allegations. For example, verbal or intellectual capacity issues can reduce the ability of carers and others to absorb the gravity of a situation. 

There are some key signs however that a person with a disability might be the victim of sexual abuse. Sudden changes in behaviour, temperament or activities can often raise the alarm. This could involve exhibiting fear towards an individual, acting out sexually or becoming uncharacteristically aggressive. 

Physical signs can include restraint marks, facial bruising or blood in the genital area. There are many more signs - some quite subtle - that a person with a disability has been subjected to sexual abuse. 

It is crucial that all staff and family members are aware of these and are prepared to take swift and appropriate action to further the matter. Further, investigators require utmost sensitivity and diligence during any investigation. 

Disclosure of abuse

Unfortunately, it is both the subtle, insidious and complex nature of sexual abuse of people with a disability that can prevent or delay the disclosure of the crime in question. The person with the disability may be hampered in their attempts to disclose - either by the nature of their disability or a lack of concern shown by those around them. Staff caring for the individual must therefore be trained and supported in the key steps needed to swiftly and effectively report any suspicions of sexual abuse against vulnerable individuals.

The organisations role

Organisations that are entrusted with the care of persons with a disability have a number of distinct obligations when it comes to the prevention and reporting of sexual abuse. At the heart of these requirements lies an ethic of care that embraces the right of all individuals to live free from harm. 

This inherently includes provision of care services that respect, protect and enhance the lifestyles of people with a disability. Moving outwards from this are legislative and policy requirements for management and professionals working in the care environment, as well as health and safety constraints that protect the welfare of all involved in disability care contexts. 

Yet perhaps the most important role for organisations is the development of robust policies and procedures designed to prevent, detect and act upon complaints of sexual abuse. Training all staff, family, clients and relevant community members in the content and application of these resources is essential to the welfare of those in care environments.  

If concerns have been raised in your organisation and you would like to conduct an investigation into the allegations, contact WISE today. Alternatively if your organisation requires a safe, secure environment to report concerns or complaints, WISE has a Confidential Whistleblower Hotline (Grapevine), enabling insightful management of complaints and the ability to bring about real cultural change and reduce risk. 

How to Write a Robust Workplace Investigation Report

Vince Scopelliti - Wednesday, September 05, 2018

At the conclusion of a workplace investigation, the investigator has the challenging task of pulling together all relevant material into a cohesive report. The style of report that is chosen will be firmly linked to the purpose of the investigation, keeping in mind the requirements of the readers and users of the document. 

Investigators need to consider closely the manner in which findings are made and how best to share findings with key parties in a clear and appropriate manner. The outcome of a workplace investigation and report might well be that mediation and/or other processes are indicated as next steps. The tasks of drafting, writing and communicating a workplace investigation report are all crucial parts of the process.

whAT IS THE PURPOSE OF THE REPORT?

Any investigation report must provide a clear and unbiased summary of the process and outcomes of an investigation. This is a document that leaves nothing to guesswork when it comes to describing the background, methodology, parties involved, timeline of events, policies and findings that have arisen across the entire timespan of the investigative process. 

It can be tempting for an organisation to decide during an investigation not to obtain a report, and to keep any outcomes 'informal'. However, if there are adverse outcomes for one or more parties, a transparent report will be the best way to prevent any future claims of unfair process. 

the style of report

No two investigation reports will have exactly the same style, the author, allegations, organisation type and specific circumstances all lend a unique nature to a report. Yet some common themes can be found in all high-quality investigations. 

Firstly, the report should be written in professional plain English. A variety of readers should be able to interpret the report - without recourse to a thesaurus! In-house descriptors and acronyms can be used, but these must first be defined or form part of a comprehensive glossary. Clear contents and a logical progression from index and executive summary through to scope, methodology, evidence, discussion, findings and recommendations will also assist any audience to understand the document. 

making findings

All findings made in an investigation report must be supported by the facts. If the facts are established, the investigator needs to determine what policy and/or law have been breached by the conduct. Once these elements are established, they must be communicated effectively and clearly in the written report. 

As with the report's overall style, findings should be logical. The report cannot simply list evidence then move to findings. Careful and reasoned explanation is needed of both the process of analysis and the deliberations undertaken by the investigator. 

This includes explaining what and why certain weighting was given to particular parts of the evidence, or why an interviewee might have been persuasive or unpersuasive on a particular point. Making clear findings is often harder than it might at first appear. Similarly, clearly reflecting the author's final thoughts in a clear and concise manner, making the report user friendly for all readers, is a challenging yet essential part of making defensible findings. 

Informing Parties

One issue to consider closely is how the outcomes of the investigation, contained in the report, will be communicated to the participants. Given that witnesses have provided evidence in confidence, their privacy needs to be protected. 

Other questions which need to be considered when sharing the outcome of an investigation with parties include:

  • Could safety be in issue by the release of particular data?
  • Is the presence of a support person necessary?
  • Should the report be presented to all parties together at a meeting? 

While a report must be clear and comprehensive in all of the matters that formed part of the process, consideration should be given to the use, delivery and description of information provided during the workplace investigation. 

Moving on from a workplace investigation

A common recommendation is for parties involved in a workplace investigation to participate in mediation in relation to one or more issues. This is often the case where emotions have stalled effective interactions at work, or where a 'he said - she said' situation makes it impossible to make a clear finding on issues of fact.

It is important to establish if all issues warrant mediation, or if only a few can realistically be dealt with in this way. Who should conduct the mediation is an interesting topic in itself - and one for future discussion. Effective mediation can create resolution of the issues and, ideally, improve workplace relationships. Yet if such discussions fall through, it is important that the report itself will withstand any future scrutiny or review.

If you need assistance with conducting an investigation, contact WISE now or enrol in our popular and effective 'Conducting Workplace Investigations' training course.

Legal Issues When Conducting Workplace Interviews

Vince Scopelliti - Wednesday, August 29, 2018

When a workplace investigation has to be conducted, the most valuable information will generally be obtained through interviewing the staff involved in the incident and any witnesses. This information will play a critical role in determining what has happened or who or what was responsible. 

In order to obtain relevant and reliable information from the parties involved, good communication skills, an eye for detail and the ability to think on your feet is required. However, it is equally important to remember your legal obligations when interviewing staff.

legal issues

In conducting an interview process, key legal issues include:

  • The creation of statements 
    When an interview is conducted, a statement recording the comments made during the interview must be prepared and provided to the interviewee for review and, if the contents of the statement are agreed upon, signature. 
  • Audio recordings
    The laws on the creation of audio recordings differ in each Australian state. Generally speaking, if a person is advised that they are being recorded and they do not explicitly object, it is acceptable to continue with an audio recording. It is best practice to seek their explicit approval once recording has commenced. It is important to bear in mind that a transcript of the recording must be made available to the interviewee upon request. 
  • Support person
    Anybody involved in a workplace investigation, but especially the person against whom allegations have been made, must have the opportunity to have a support person of their choice present during each step of the investigative process, particularly during the interview. Witnesses have to be informed of this right in advance, in order to provide them with the opportunity to find a suitable support person.   

Procedural fairness and privacy

Perhaps the most important aspect of any workplace interview is ensuring that the process is conducted in accordance with the rules of procedural fairness. This includes:

  • The complainant and the respondent have the opportunity to provide their entire version of events and to have a support person present. 
  • The respondent is advised of the particulars of the allegations against them, so that they can respond in detail. 
  • The respondent is advised of their rights in relation to the investigative process.
  • Proceedings are not delayed unnecessarily.
  • The respondent has sufficient time to prepare for the interview process. Best practice is to allow at least 48 hours' notice but preferably more, depending on the complexity of the particulars. 
  • All relevant witnesses are interviewed.
  • Exculpatory and inculpatory evidence is taken into account.
  • All evidence is considered in an unbiased and impartial manner. 
  • No finding of guilt or otherwise is made until after all parties have had the opportunity to participate in the interview process and had the opportunity to respond to the allegations against them. 

All parties involved in the investigation are entitled to privacy. Witnesses who have disclosed information in confidence, may be intimidated by the fear of victimisation or backlash. This means that information divulged during the interview process is to be kept strictly confidential, unless it is absolutely necessary for the resolution of the dispute that it be shared beyond the immediate investigative team.

tips for successfully conducting an interview

In addition to taking the above steps, inexperienced interviewers may wish to consider obtaining specific legal advice, depending on the situation and the allegations which have been made. 

The interview process should always be undertaken from the perspective that only information which is collected fairly and decisions which are made in an unbiased manner will support disciplinary or administrative action against any employee. 

If you dismiss an employee or take disciplinary action against them without affording procedural fairness and establishing the relevant facts, it is possible that Fair Work Australia or other relevant tribunals may find the action was harsh, unjust or unreasonable in the circumstances. 

An investigation may be costly and time consuming, however the consequences of not conducting one may be even greater. If you need assistance in conducting investigations and undertaking investigative interviewing, contact WISE Workplace today, or purchase our 'Investigative Interviewing Book'.   

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