Handling a Paranoid Response to Workplace Investigations

Harriet Witchell - Wednesday, June 21, 2017

In conducting workplace investigations, both the alleged victim and perpetrator and potentially even witnesses may have an intensely personal reaction to the accusations. But what happens if one of the people involved in a workplace investigation has a mental illness or otherwise suffers from poor mental health? 

In this situation, a workplace investigation can be perceived as a direct personal attack - for example, a complainant may feel that the mere fact of an investigation means that they are not taken seriously or believed in their allegations. A respondent to a complaint may feel vilified or victimised by having to respond to the claims at all. In these circumstances, it could be easy for paranoia to creep in during the investigative process. 

So what additional steps should a prudent employer take during the investigative process when dealing with an employee who struggles with their mental health? 

Potential Consequences of Failing to Consider Mental Health

The State of Workplace Mental Health in Australia report, released by TNS Australia and Beyond Blue, has found that 45% of all adult Australians will experience a mental health condition at one point in their lives. In addition, untreated mental illness costs Australian Workplaces almost $11 billion annually.  

This financial cost (calculated on the basis of absentee figures, 'presenteeism' where employees are physically present but not performing to their maximum capabilities, and compensation claims) is reason enough to take mental health in the workplace seriously, and to ensure that workplace investigations do not run roughshod over the rights of employees with mental health concerns. 

However, even more concerning is the potential for a poorly handled workplace investigation to exacerbate an employee's mental illness or even to cause a new psychological injury. 

It is crucial for employers to ensure that workplace investigations are conducted sensitively and have regard to any disclosed or hidden mental health issues suffered by employees. This is particularly the case given that it is an employer's legal obligation to ensure that workplaces are free from conduct which could reasonably be foreseen to cause injury, including psychological injury, to employees. A failure to do so can leave the employer exposed to a compensation claim.  

What Should an Employer's Response be?

Employers must ensure that investigators don't dismiss signs of paranoia as an employee being 'silly' or simply difficult. 

It's important to recognise that the employee does genuinely feel under threat, without agreeing with them, and to lay out any evidence clearly. 

It can also be helpful to detail how the investigation will proceed to avoid the risk of misunderstandings, for example an employee deciding that more than a week has passed therefore an adverse finding must have been made against them. 

Honesty and fairness are key in any workplace investigation, but it is particularly important to demonstrate both when dealing with an employee who is feeling under attack. It's essential to remain patient, and work on building trust and rapport in interviews.  

Employees should also be able to access a support person of their choice to participate in any interviews or other formal steps of the investigation. 

Being available and following through on any actions that have been decided on, however minor, may also help lower a fearful employee's anxiety. 

If the initial complaint has caused or substantially contributed to an employee's poor mental health, and this has resulted in the employee receiving a medical certificate, an employer should consider not permitting the employee to return to work until the investigation has been resolved. Any decision along those lines should be made strictly in consultation with the employee's medical team and the employee themselves.  

    How We Can Help

    Taking these simple steps will help to ensure that your staff do not feel victimised and do not become unduly paranoid or concerned about the investigative process and potential outcomes.  

    At WISE Workplace, we can help you navigate your way through the potential minefield of workplace investigations. We offer full investigation services if you prefer to outsource, and also training to assist you in running your own investigations.

    When the Line Blurs: Restrictive Practices vs Assault

    Harriet Witchell - Wednesday, June 14, 2017

    It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

    As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

    However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   

    What are Restrictive Practices?

    According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

    This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

    Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

    Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.

    Key Concerns with Restrictive Practices 

    As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

    While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

    Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

    While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.

      What if an Allegation of Assault Does Arise?

      The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

      Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

      At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.   

      ACT Launches Reportable Conduct Scheme

      Harriet Witchell - Wednesday, June 07, 2017

      If there's one thing that's been made clear from the recent Royal Commission, it's that the protection of children and the reporting procedures around child abuse need to be improved. 

      In August 2016, largely in response to the commission, the ACT Government passed legislation designed to cast a 'wider net' when it comes to the scrutiny of child abuse and the protection of children within certain organisations.

      The ACT Reportable Conduct Scheme will take effect from July 1 2017. The scheme is designed to ensure that there are processes in place for allegations of employee abuse of children, and that these allegations are independently reviewed. 

      In essence, it provides a mechanism for employers to report employee misconduct in relation to children, with the ACT Ombudsman acting in the role of independent oversight body.   

      Which Employers Does This Apply To?

      Certain types of employers that work with children will be covered under the scheme, including health service providers, foster care and out-of-home services, residential care providers, schools and educational services. 

      In general, religious organisations (other than schools), instructional services (such as teachers of sports and music), scouts/guides and universities will not be included under the scheme. 

      The term 'employee' in this instance refers not only to workers but also to contractors and volunteers within the relevant organisation, whether or not they work directly with children. This means conduct may be reported even if it is of a personal and non-professional nature.  

      What About Other Reporting Processes? 

      It's important to be aware that the scheme will not override other reporting obligations - such as that of suspected crime to the police, or mandatory reporting of serious abuse or neglect of children to the Child and Youth Protection Services (CYPS). However, it does cover a wider range of behaviours in relation to children, and also provides a mechanism for employers to report conduct not covered under other mandatory reporting programs. 

      What Employers Need To Do

      ACT employers covered by the scheme will need to notify the Ombudsman within 30 days of suspected or actual misconduct by an employee in relation to children. These acts of misconduct include neglect, mistreatment, psychological harm, sexual misconduct or inappropriate discipline. 

      Employers will also need to:  

      • Perform investigations into alleged reportable conduct and provide a written report to the Ombudsman. 
      • Report to other bodies as required - including the police, the human rights commission, CYPS and others. 
      • Review and amend their organisational policies and procedures where necessary.
      • Inform and educate employees regarding any new or amended policies and responsibilities. 

      The Ombudsman's Role

      The scheme is designed to go beyond just reporting misconduct. For instance, the Ombudsman's role in regard to this is also to monitor and analyse trends, share information with other authorities as required, provide guidance to organisations regarding child protection, and monitor the practices of employers in relation to child safety and prevention of abuse.

      Where To From Here? 

      WISE Workplace provides independent investigation services for organisations into reportable conduct, and training on how to respond and investigate allegations. 

      The Risk of Ignoring Reports of Sexual Abuse

      Harriet Witchell - Wednesday, May 31, 2017

      The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. The Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, 

      This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. 

      Long gone are the days when a written complaint of such behaviour is needed. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

      Courage TO TELL 

      In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'

      SILENT DAMAGE

      Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 

      LISTEN OUT

      Busy employers can be tempted to argue that they can’t be everywhere at once. Although employers are certainly not blind to the potential for unacceptable behaviour, there can however be an built-in assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Matthews the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Matthews had two discussions with a representative of the employer was certainly sufficient grounds to say she provided notice about the offending conduct. 

      LINGERING PAIN

      The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered, as in Matthews, compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures to follow workplace health and safety procedures can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act; A complex and damaging array of legal and financial consequences indeed. 

      WORDS ARE ENOUGH 

      It is that failure to act that can cause so much preventable harm. At the moment when the Area Site Manager was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a serious breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as those faced by Ms Matthews. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

      ACT EARLY 

      The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

      For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website

      Bullying: I've Been Talking to HR but Nothing's Happening

      Harriet Witchell - Wednesday, May 24, 2017

      If you have been the victim of bullying, the HR department in your organisation is generally the first port of call for raising your concerns. 

      It can be mentally or emotionally challenging to make a complaint to HR. You may feel exposed or vulnerable because you are concerned that your complaint may not be believed, or that the person about whom you have made a complaint has been told that you have "dobbed" on them.

      Depending on the nature of your complaint, or the relationship of the HR personnel with the person or people about whom the complaint has been made, you may have concerns that a workplace investigation will not be conducted thoroughly or your grievance not taken seriously. In any event, your working life can become very uncertain after you have made a complaint to HR. 

      Taking a company issue to the HR team can also be a lengthy process, and it may feel like nothing is happening as time ticks by. But it's important to remember that much of the HR investigation will be taking place without you being directly aware of it. 

      Here is a brief look at how the process works.

      The First Step

      After you have aired your grievance, it's important to try and remain focused and perform your job to the best of your ability. If you feel you are unable to do so, it may be best to take a few days off work on sick leave until you feel stronger, and better able to approach your tasks or face your co-workers.    

      The Complaint Process

      There are certain steps which a diligent HR team must follow once a complaint has been brought to their attention. Initially, the complaint must be assessed. 

      Next, the HR department will meet with relevant senior staff, who must make a decision as to what the appropriate follow-up actions will be.

      Depending on the severity of the alleged behaviour, this may involve HR having a quiet word to the other person or the initiation of formal disciplinary proceedings. The latter is more likely to be the case if the person being complained about is already being performance-managed in relation to prior issues. 

      Be aware that it may well take HR a week or even longer to finalise the preliminary investigation process, and make and communicate a decision on the best way forward. 

      Privacy obligations to the other employees involved may also mean that you are not entitled to know the full details of what further action will be taken.

      What Can HR Tell You?

      At a minimum, HR is required to advise you of: 

      • The fact that it has received your complaint, is taking it seriously and is conducting appropriate levels of investigation. 
      • What Employee Assistance Programs are available. 
      • Who the liaison person for these programs is (if your organisation has one) and how to contact them. 

      What If There Is A Formal Workplace Investigation?

      For serious complaints, your company may engage the services of a third party workplace investigator. 

      If this occurs, then you are entitled to: 

      • Be one of the first people interviewed if a detailed investigation is commenced. 
      • Receive a copy of your interview transcript or detailed statement, which you should sign if you agree that it is an accurate record of what you told HR

      If your complaint is sufficiently serious, then the respondent facing your allegations will be advised of the exact complaints against them. Although they are also likely to be interviewed, you are not entitled to a copy of their transcript or statement. If you are concerned about any bias, however, be aware that their interview will be recorded.

      Once these steps have been finalised, the investigator will draft a report for the review and consideration of the HR department. That report (hopefully completed within a timeframe of less than three weeks) will then be provided to the relevant decision-makers within your organisation for a final determination. 

      You will generally be advised that the investigation has been completed, what the findings are, and of any further action steps as they concern you. But in most cases, you will not be specifically advised of any punishment to be meted out to the respondent. 

      Be Prepared For Workplace Changes

      If your complaint is serious, you may be asked to move or transfer offices or departments. This is not a punishment, but is designed to ensure that your wellbeing is protected, generally by reducing the likelihood of any contact occurring between you and the respondent. 

      Try not to respond by being offended or otherwise feeling indignant. All businesses, regardless of their size, have legal obligations to all employees. Your employer cannot simply fire workers who have issues with other employees, and other considerations may mean that the respondent cannot be moved. Bear in mind that your organisation is simply trying to find the best outcome for all concerned. 

      If you are nervous about making a complaint or otherwise wish to obtain guidance on how whistleblowers should be dealt with, contact WISE Workplace today for detailed assistance with all aspects of the workplace investigation process.  

      Her Word Against His – Detecting Lies in Interviews

      Harriet Witchell - Wednesday, May 17, 2017

      One of the most challenging aspects for employers attempting to deal with workplace bullying or misconduct is getting to the truth of allegations, especially in circumstances where the apparent victim's version of events contradicts that of the alleged bully.

      Most of the time, this disparity can be put down to differences of opinion or misinterpretation of intentions.

      For example, the accused bully may have simply felt that they were performance-managing their subordinate, whereas the victim may have felt denigrated and abused. A purported victim may consider themselves to be the target of sexual harassment, while the accused bully may have simply wanted to ask them out for a friendly coffee.

      But occasionally, for whatever reason, apparent victims of bullying tell lies in the interview process and make false accusations of bullying. This could be because they dislike the alleged bully, believe the "bully" should be dealt with by management or simply because they have embellished their story and feel that they need to stick with it now that a complaint has been made.

      Regardless of the myriad reasons why a victim may lie during an investigative interview, how should this be dealt with by an employer?

      Guarding against bias

      Although it is natural to sympathise with a purported victim, and perhaps unconsciously believe their version of events over that put forward by the alleged perpetrator, the most important function of a workplace investigator is to establish the truth surrounding the allegations.

      It is therefore imperative that any preferential bias in favour of the apparent victim is removed. If you do not feel that you can adequately perform an interview without such bias, whether because of your relationship with the victim/bully or because you can personally relate to the allegations of bullying, ensure that another person is tasked with conducting the interviews.

      Picking up verbal and non-verbal cues

      Once the claimed victim is participating in the interview process, ensure that you are observing any cues which may indicate that they are not telling the truth. These could include:

      • Overly elaborate stories and excessive irrelevant detail, suggesting an invented story,
      • Gestures and words not matching each other in context, implying that the words have been rehearsed.
      • Whether the story makes sense – is it even plausible that the allegations being made against the bully could be true?
      • A lack of consistency – is the interviewee telling the same story each time or are details changing?

      Of course, these can be subjective indicators. It is important to tread carefully when deciding whether a victim is lying about their version of events: making an unfounded and inaccurate accusation can cause even greater distress to an innocent victim.

      In this regard it can be helpful to have another person sit in on the interview with you, so that they can provide their own opinion on whether the version of events being provided is accurate, and temper your initial reactions.

      The need for corroborating evidence

      Once the alleged victim has provided their version of events and it is apparent that this contradicts that of the claimed bully, it is essential to seek corroborating evidence to either prove or disprove the victim's story.

      In addition to speaking with third party witnesses, such as other staff members at work at the time of the alleged incident, this could include evidence such as reviewing CCTV footage, checking personnel files for prior complaints or even performing basic checks such as making sure that both employees involved in the complaint were even working together at the relevant time.

      Conducting a workplace investigation is a complex task, often requiring specialist knowledge and experience. WISE Workplace can assist with conducting interviews if you wish to safeguard the investigation process by avoiding any allegations of bias or favouritism, or are otherwise concerned that the interviewee may not give the full version of events. Please feel free to contact us for more information.

      Child Sexual Exploitation & Trafficking Conference Insights

      Harriet Witchell - Wednesday, May 10, 2017

      A wrap-up of the Children, Justice and Communication Conference at Portsmouth University, May 2017.  Last week, I had the privilege of attending the Children, Justice and Communication Conference at Portsmouth in the UK.  The conference is hosted by some of the world’s leading academics and practitioners working in the areas of child sexual exploitation, trafficking, child abuse, incest and more.  

      Opened by Professor Ray Bull, the conference featured the work of Professor Becky Milne, Dr Julie Cherryman, Dr Lucy Akehurst and Professor Penny Cooper to name but a few. 

      The audience, mostly police officers from the UK, represent those forward-thinking agencies and officers who want to make a change for the good and tackle some of the most challenging crimes. The number of police officers with higher research degrees is particularly impressive, and is having a massive impact on the quality of policing not only in Britain, but around the world.

      Tackling challenging issues across the globe

      Some of the issues covered on the first day included the conundrum of obtaining evidence from teenagers who have been exploited and trafficked but consider their actions to be consensual and complicit in the activities. How do we empower these individuals to become witnesses rather than to take on the persona of victim? 


      Dr Brian Chappel, a senior police intelligence expert, spoke of the use of juveniles as critical intelligence sources necessary to infiltrate youth gangs. Interestingly, his research showed that the 10 informants who participated in his study were themselves free from any police intervention up to a year later. 


      Dr Shaleve-Greene addressed the issues for agencies in handling or identifying the 10,000 unaccompanied migrant minors that go missing across Europe every year. This was another statistic to get my head around – this number reflects only those we know about who are missing and vulnerable to traffickers and exploitation. There are also tremendous challenges to local safeguarding children boards, such as the one operating in Kent on the south coast of Britain. 


      Dr Sue Gower spoke about the services and educational needs of their staff when they take on responsibility for the children from their own county, a similar number from neighbouring counties, and then double the number to account for the unaccompanied immigrant minors arriving from Europe. 

      How intermediaries are working successfully overseas

      Professor Penny Cooper hosted a panel of experts who presented on a range of issues connected to the use of intermediaries who support and assist children and vulnerable adults to communicate with police, and courts. 


      The NSW Department of Justice is currently trialling the use of intermediaries, so it was great to hear the many ingenious and fantastic ways these experts have of working with children to help them communicate. Convictions have been secured with the use of evidence from children as young as three-years-old. These presentations also addressed the increasingly common needs of children with autism spectrum disorder. 


      As practitioners, it’s so important to stick our heads above the partition wall and have a look at the fantastic work going on around the world. 


      WISE Workplace offers consulting and investigation services to assist and support workplaces in conducting fair and efficient investigations and developing comprehensive complaints processes.

      Contact one of our offices to talk to an advisor about a free consultation.

      So You've Been Accused of Bullying - What Now?

      Harriet Witchell - Wednesday, May 03, 2017

      The issue of workplace bullying is much more openly discussed these days, and most employees are aware that they can make a formal complaint to their employers and have the matter investigated – with appropriate resolution to follow.

      But what happens if you are not the victim, but instead have been accused of being the bully?

      How to deal with an overwhelming experience

      Being accused of bullying is never pleasant. It can create a number of confusing feelings, including concerns about your job security, a sense of lost control over your workplace and working experience, and frustration or even anger towards your accuser.

      This can particularly be the case if you dispute that the alleged behaviour occurred or took place as claimed, and feel that you have been wrongly accused.

      In some circumstances, those accused of workplace bullying may even develop feelings of depression or anxiety.

      But there are strategies which you can employ to stay focused and keep your emotions under control while the investigation process is underway.

      These include:

      • Remembering that the accusation is only an allegation and does not mean that anything has or will be proven against you.

      • Understanding that there is an investigation process which needs to be followed to ensure fairness is afforded to both parties. Your organisation will need to investigate the allegations and talk to staff before they get your side of the story.

      • Avoiding interfering in the investigation, as this will risk a finding of bias and will only extend the process.

      Your rights and responsibilities

      As the alleged perpetrator of the workplace bullying, you are entitled to be advised of what the allegations made against you are, although you cannot be provided with a copy of the initial letter of complaint.

      This is to ensure that the complainant maintains some privacy and avoids potential further harassment. Once you have been advised of the complaint and the details of the allegation, it is a good idea to make a written record of your version of events.

      You have the right to participate in an interview and, if you take up this right, it is important to calmly address the facts and provide a rational, not emotional, response to the allegations.

      You are also entitled to request that you have a support person to sit in on interviews and provide you with moral support throughout the investigation process.

      The key thing to remember is that you have the right to an unbiased investigation. If you genuinely believe that the investigator or somebody with the power to make the final determination is prejudiced against you or otherwise has a conflict of interest, you should set out your concerns, preferably in writing, and request that another person becomes involved in the process.

      If you continue to feel that the process is tainted by bias, you can contact the Fair Work Commission's Help Line or obtain independent legal or consulting advice to ensure that your rights are protected.

      By the same token, you should avoid discussing the complaint at all with co-workers or decision-makers, and certainly should not engage in discussions with the complainant under any circumstances. Any attempt to do so may be perceived as an attempt to influence witnesses or otherwise interfere with the investigation.

      Remember that the investigation can take time

      It's important to be aware that the workplace investigation process can be lengthy, and more serious allegations of bullying might take six or more weeks to investigate. Factors such as the victim (or you) going on stress leave or annual leave can also affect the timeframe of the investigation.

      Although it is certainly justifiable to feel stressed, and you should seek support if you feel unwell, going on medical leave in response to the complaint will only prolong the investigation. Your health is likely to be better served in the long-term by assisting in the process, enabling a quicker resolution.

      Being accused of workplace bullying and the subsequent investigation process can be an upsetting experience. If you are the subject of a workplace bullying complaint, we can provide you with advice on the investigation process, and help you to make a full and articulate response to the allegations against you. Feel free to contact us here.

      Witness Statements Protected in Australia Post FOI Bid

      Harriet Witchell - Wednesday, April 26, 2017


      A recent decision of the Australian Information Commissioner has confirmed that certain categories of internal documents cannot generally be forced to be the subject of a disclosure process.

      The decision, which was handed down by Commissioner Tim Pilgrim on April 5, 2017, arose from a refusal by Australia Post to produce documents to a former employee, identified for the purpose of the proceedings as "LC".

      LC had complained to his former employer that he had heard two managers making "derogatory comments" about him, and reported that he had heard from an HR officer that the managers would be disciplined for their actions. Accordingly, LC issued a Freedom of Information (FOI) request seeking documents pertaining to Australia Post's investigations, with a view to identifying what disciplinary action would be taken.

      Australia Post claims documents exempt

      However, the requested documents were not produced by Australia Post, which claimed that the materials were exempt from production under sections 47E(c) and 47F of the Freedom of Information Act 1982 (Cth).

      Section 47E(c) of the Act provides that documents are not required to be produced if they would or could "have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency". Meanwhile, section 47F states that documents need not be produced if they would unreasonably reveal personal information about any person, including a deceased person.

      LC requested a review of the FOI decision. However, Commissioner Pilgrim agreed with Australia Post's refusal to produce the documents, in accordance with the "management functions" exemption set out in section 47E(c).

      Release of documents would "impede investigations"

      In these circumstances, the documents related to both managing and assessing personnel because they related to complaints by employees and associated disciplinary proceedings.

      Specifically, Commissioner Pilgrim found that documents including witness statements and counselling or disciplinary action documents directly related to the management functions of an organisation, and accordingly could "reasonably be expected to have a substantial adverse effect" on those functions.

      In particular, Commissioner Pilgrim concluded that permitting the release of these documents would impede the proper progress of investigations, because there was a very reasonable prospect that it would put people off making complaints or providing honest witness statements during enquiries, particularly over concerns of "backlash" from co-workers and supervisors or senior employees.

      Having regard to the nature of Australia Post's business, Commissioner Pilgrim also found that public interest dictated that Australia Post and other government organisations should be able to protect the integrity of their code of conduct complaint processes.

      The wider impact on workplace investigations

      The recent decision in LC and Australia Post highlights the importance of employers being able to maintain the integrity, privacy and confidentiality of their internal disciplinary processes. In particular, witnesses and complainants can be reassured that anything they divulge and which is recorded during the provision of interviews cannot be easily disclosed on the basis of FOI requests.

      Make sure that your internal documentation and disciplinary processes are protected, private and accurate. The majority of unfair dismissal claims are due to lack of process and procedural fairness. Fix the process and reduce time and money spent in court with the Workplace Investigation Tool Kit. You can find more information about it here

      A Perplexing Problem: Protecting Children Overseas

      Harriet Witchell - Thursday, April 20, 2017


      Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

      International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

      Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

      Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

      Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach.

      Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

      Documents provided to the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

      It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children?

      WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients. The work remains some of the most challenging to investigate. Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

      For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

      Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

      1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency
      2. Have clearly articulated Child Protection Standards and Guidelines
      3. Have clearly articulated procedures for dealing with complaints
      4. Understand the criminal law in the country of service delivery
      5. Understand the employee relationship between the funding body and the service providers on the ground
      6. Know your legal obligations under your primary funding agency agreement
      7. Respond quickly to complaints
      8. Conduct a risk assessment and take protective action if necessary
      9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain
      10. Seek specialist help when complaints are serious or complex to investigate.

      WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts. Our unique Investigating Abuse in Care course provides valuable skills in how to assess complaints, reporting obligations, drafting allegations, interviewing victims and respondents, making decisions and maintaining procedural fairness. Book now for courses in May 2017.