Bullying in High Stress Workplaces: Can an Investigation Help?

Vince Scopelliti - Wednesday, August 30, 2017

A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

Alarming workplace reports

Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

Workplace bullying and hr responses

The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

THE good and the bad of workplace investigations

Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

investigation woes: a case in point

In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

Care at every turn

Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us. 

What Evidence Should Be in a Workplace Investigation Report?

Vince Scopelliti - Wednesday, August 23, 2017

In every workplace, there will eventually be a situation where an investigation needs to be carried out into an employee's compliant or conduct. One of the most crucial aspects of conducting workplace investigations includes preparing an investigation report which can be relied upon for any future purpose, including carrying out and implementing disciplinary action against an employee.

WHAT IS the purpose of an investigation report?

An investigation report is intended to provide a 'snapshot' for external entities, such as auditors, judges or tribunal members, or the police; of the allegations made, the likely accuracy of the claims, the background circumstances surrounding the alleged behaviour or occurrence, and the likely consequences imposed once any findings have been made. 

Broadly, the investigation report is created in order to: 

  • Form the basis of any future action, such as disciplinary proceedings or strategic direction. 
  • Record the conduct of the investigation objectively (in particular to avoid allegations of bias or a lack of procedural fairness)
  • If necessary, be produced in legal investigations, or proceedings. 
  • Record observations and other data surrounding employee attitudes and experiences. 


It is essential that every investigation report: 

  • Is set out in an organised fashion. This includes, for example, ensuring the inclusion of page numbers and an index so that information can be readily sought. 
  • Is internally consistent and can stand-alone, meaning that the report itself makes sense and is complete without having to refer to extraneous documents of information
  • Objectively documents findings and recommended actions, without any bias or undue influence. 
  • Identifies whether allegations were ultimately grounded in fact or were simply unfounded. 
  • Alternatively it may also identify if there is insufficient evidence to make a finding. 

In areas legislation, regulations or specific policy and procedures particularly with some government departments, the investigation and reporting requirements can be more onerous and prescriptive where there may be higher level oversight.

In general today, it is increasingly critical to ensure that an investigation report is properly completed - certainly this is to demonstrate that the instructing entities use best practice in all investigation reports created in consultation with employees. 

The role of briginshaw

In matters where there could potentially be criminal implications, other serious outcomes, or adverse findings, it is crucial that an investigation report have regard to a legal concept known as the rule of Briginshaw v Briginshaw

This means that the decision maker must be satisfied that the seriousness of allegations is weighed up against the potential consequences of adverse actions or findings. This highlights the importance of putting only relevant matters into an investigation report. 

how should an investigation report be set out?

From a practical perspective, it makes sense to stick to a fairly rigid structure in drafting every investigation report - particularly because this regime will enhance the objectivity of any finished report. 

This structure should include:  

  • An executive summary - so that the key findings and recommendations are immediately clear and identifiable. In many cases this is the only part read by outsiders, so it is essentially that the key information is contained in the summary in the 'punchiest' way possible.
  • A methodology - in order for the reader to understand what process the author went through to complete the report. 
  • An identification of the standard of proof against which the report has been drafted and the allegations have been assessed. Outside of the criminal world, the civil standard is assessed according to the balance of probabilities: that is, whether it is more likely than not that a certain behaviour or alleged fact took place as claimed. 
  • Key evidence being relied upon in relation to each allegation/particular. 
  • An analysis of the evidence that supports any findings made. 
  • Other issues which may be relevant to the investigation itself or the ultimate determination. 
  • If appropriate, recommendations for future conduct.

What is the role of evidence in investigation reports?

Items of evidence which should be contained in an investigation report include:

  • Witness statements and/or transcripts of interviews
  • Physical evidence such as photographs of injuries or the debris of a broken item.
  • Documentary evidence such as incident reports or contemporaneous file notes.
  • Electronic evidence including emails, text messages and CCTV footage.
  • Expert reports such as medical reports
  • Other documentary support evidence such as rosters, timesheets, fuel cards, behaviour support plans, client profiles etc. 

Crucially, the evidence should be relevant and sufficient to support any findings.

Relevance may be determined by employing the following assessment, as set out in the decision of Robinson v Goodman [2013] FAC 893

a) What facts are disputed, and what the collated evidence tends to prove or disprove.

b) Whether the evidence provided might be indicative of the fact that person will tend to behave in a certain way. When relying on so-called tendency evidence, it is essential that the potential consequences of claiming that somebody has a tendency to behave a certain way are weighed up against the potentially damaging suggestion that a person's past behaviour should dictate whether they have acted in that way again.

Although workplaces are entitled to maintain confidentiality over investigation reports, in most cases, there are certainly circumstances where the reports may be ordered to be handed over to the complainant or the other party. 

This was the case in the decision of Bartolo v Doutta Galla Aged Services (July 2014), where the Federal Circuit Court ordered the waiver of legal professional privilege over investigation reports completed by external lawyers. 

The court's decision to produce the reports was due to the fact that an employee had been dismissed on the basis of information set out in the investigation reports. It was therefore clearly incontestable that the report was not relevant to the outcome complained of by the former worker.  

potential consequences of a poorly drafted investigation report

Given that an employee's life can be significantly affected by the conclusions drawn in investigation reports, there is high potential for outcomes to be referred for legal proceedings. 

As this is a likely possible outcome, it is important to make sure that any workplace investigations are determined according to the minimum standard on which the court will rely. That is, satisfying the court on the balance of probabilities that a reasonable person would consider it more likely than not that events occurred as described by the complainant or the worker. 

Properly prepared investigation reports are very similar to briefs of evidence prepared by counsel during court proceedings, and can be complicated and challenging documents to create. WISE Workplace provides training designed to assist you with the conduct of workplace investigations and drafting reliable reports. Our team can also conduct investigations for you. Contact us today. 

How Can Employers Assist Workers with Acquired Brain Injury

Vince Scopelliti - Wednesday, August 16, 2017

A decision by the Queensland Court of Appeal highlights why employers must take into account the needs of workers with an acquired brain injury, in order to avoid being considered to have discriminated against them. 

In Chivers v State of Queensland (Queensland Health), the Court of Appeal heard a case pursued by Ms Chivers, who was employed as a registered nurse with Queensland Health (QH). She had an acquired brain injury from a horse riding accident in 2004. As a result of her accident, she experienced headaches and nausea and was unable to work night shifts. 

QH initially accommodated her working requirements. However, despite QH's apparent support of Ms Chivers, her probationary period was extended on three separate occasions, ostensibly to allow an assessment of her ability to work nights. Eventually, after one year, Ms Chivers resigned and claimed that QH had discriminated against her by failing to confirm her employment. 

In its defence, QH argued that working nights was a 'general occupational requirement' for registered nurses who were employed in 24/7 wards, and that Ms Chivers failed to comply. But Ms Chivers presented evidence of other nurses in permanent employment who were not required to work across all shifts, despite being employed in the same 24/7 wards. 

The Court of Appeal held that the ability to work across all shifts was not a genuine occupational requirement. 

Although there can be specific challenges when working with people suffering from an acquired brain injury, this does not mean that they can or should be discriminated against in the workforce - including when it comes to conducting workplace investigations. 

What is an acquired brain injury?

Acquired Brain Injury (ABI) is the term used for any brain damage, which is sustained after birth. Causes include physical head trauma, strokes, brain tumours, brain infections, alcohol and drug abuse or neurological diseases such as Parkinson's disease. This term is used to describe both permanent and temporary injuries. 

Those suffering from an ABI are likely to experience ongoing difficulties with: 

  • Concentration
  • Processing information at speed
  • Fatigue
  • Memory
  • Problem Solving and lateral thinking
  • Organisation of thoughts and activities 
  • Planning
  • Self-control and monitoring
  • Insight into personal behaviours
  • Emotional lability
  • Restlessness (physical and emotional) 

tips for managers of employees with an abi

Perhaps the greatest potential challenges are difficulties with memory, cognition and communication. When communicating with people with a disability, it is important for managers not to focus on the potential restrictions of their employees, but to consider how to get the best out of their workers. 

In the context of an ABI, this is likely to take the form of:

  • Flexible working arrangements, such as part-time or reduced hours, or the ability to call in sick with short notice. From a recruitment perspective, one of the best ways to ensure that everybody's needs are met is to ask potential employees who have declared an ABI to provide any assessment or medical treatment reports which could provide guidance as to their capacity and daily needs. New employees should be encouraged to undergo a work trial period, during which both employer and employee can consider what tweaks might be necessary to ensure that the arrangement works optimally for both parties. 
  • Developing appropriate risk mitigation strategies. This includes ensuring that both employer and employee are aware exactly what is and might be required of the employee with the ABI, so that their role is clear. Other strategies include making sure that workers compensation and medical leave certificates are appropriately filled in, even if the employee is required to take a lot of sick leave. This will help to ensure that events are well documented in case a dispute arises. 
  • Ensuring that instruction manuals and written directions are easily accessible and clear. People who suffer from an ABI may require frequent reminders and mnemonics to perform their job to their full ability, and facilitating this will help an employer to best unlock an employee's potential. 
  • Implementing a workplace buddy system. A dedicated buddy can not only provide ongoing emotional and personal support, but also assist with simple memory jogging and reminders when needed.

undertaking workplace investigations involVing an ABI

The difficulties inherent in the workforce for people suffering from an ABI are magnified when a workplace investigation needs to be conducted - regardless of whether the employee with an ABI is the victim, the respondent or a witness. 

In order to counter difficulties associated with an ABI, employers engaged in investigative interviewing should consider strategies including: 

  • Prior to conducting an interview with a person with an ABI as part of an investigation, the investigator should make an assessment about the witness' communication, including skills, abilities and whether they use any types of communication aids. 
  • Talk to other staff or human resources to obtain some further information that can assist in understanding how best to work with the employee with an ABI. 
  • Reducing distractions during the interview (for example, make sure the radio is turned off and there are no unnecessary staff sitting in on the interview). 
  • Using short and simple sentences to avoid confusion, especially when putting allegations to the interviewee. This should also include presenting information slowly and one bit at a time.
  • Giving frequent reminders of the next step - this is particularly important from a procedural perspective. From an employer's perspective, this is also important to avoid any allegations of abuse of process or discrimination. 
  • Being prepared to repeat information as often as necessary until the employee clearly understands what is being conveyed. 
  • When the employee is clearly distracted, ensuring that they are brought back to focus on the matter at hand. 

Interviewing an employee with an ABI is challenging and can be very difficult to get right. If you require a highly experienced interviewer to assist with a workplace investigation involving a person with an ABI, or any other disability, contact our investigations team today for expert assistance.

Complaints Management Under the NDIS

Vince Scopelliti - Wednesday, August 09, 2017

The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  


Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

Providers who wish to operate within the NDIS must:

  • Comply with all state and federal laws
  • Participate with the NDIS Code of Conduct
  • Engage in the NDIS Resolution Process

mandatory reporting regime

In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

According to the NDIS Quality and Safeguarding Framework (released 9 December 2016), once the NDIS has been rolled out and takes effect, registered providers must notify all 'serious incidents' to the NDIS Complaints Commissioner.

These include: 

  • Fraud-related incidents
  • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
  • Obvious neglect
  • Serious unexplained injury
  • The death of a scheme participant (This must be notified regardless of how the participant died)
  • Unauthorised use of restrictive practices

It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

How the ndis complaints procedure works

Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

The Commissioner will also:

  • Investigate serious incident reports
  • Review breaches of the NDIS Code of Conduct

In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

Finally, the Senior Practitioner is entitled to hear matters relating to:  

  • Inappropriate or unauthorised use of a restrictive practice
  • Unmet disability support needs. 
The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 


It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.


In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us

Investigating Allegations of Abuse in Care in Aged Care Facilities

Vince Scopelliti - Wednesday, August 02, 2017

Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

what is elder abuse?

According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

There are many different forms of elder abuse, including:   

  • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
  • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
  • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
  • Neglect or Abandonment - failing to provide a requisite standard of care. 
  • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
  • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

what are the signs?

Potential signs of the various types of elder abuse include:

  • A bad or unusual relationship between a care provider and recipient. 
  • Unexplained injuries
  • Insistence by the caregiver that the victim is never attended to without them being present.
  • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
  • Ongoing poor hygiene and living conditions.
  • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

common risk factors for elder abuse

In the context of care facilities, the greatest risk factors for elder abuse include: 

  • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
  • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
  • Excessive responsibilities and inadequate levels of support. 
  • Inappropriately vetted staff, including those with substance abuse issues. 
  • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
  • Inadequate complaint handling mechanisms. 

Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

How to prevent the risk of ELDER ABUSE

Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

  • All resident and staff concerns are appropriately listened to and noted. 
  • All staff have have undergone criminal checks.
  • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
  • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  


Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help.