Making administrative decisions stick: procedural fairness at work

Harriet Witchell - Wednesday, June 26, 2013

 

A starting point for any court of law when assessing the legitimacy of an administrative decision is fairness – procedural fairness

Now that Safe Work Australia has released the draft model code for bullying in the workplace, employers need to ensure that procedural fairness is at the heart of their response to bullying issues.

A fundamental concept of law is that whenever you make an administrative decision about an employee you need to ensure that the process was procedurally fair.

This applies uniformly to managing misconduct and performance management. Ensuring that actions are taken as a result of ‘reasonable management action’ involves abiding by these principles and sticking to your policies and procedures.

The case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation.

The NSW Industrial Relations Commission found that the investigation process was so infected by procedural deficiencies as to contaminate the process.

The three key principals of procedural fairness are:
  • The right to be heard
  • The right to an unbiased decision maker
  • The right to have the decision based on evidence
Achieving an unbiased decision can be difficult, the decision makers must not be biased, that is:
  • Actually
  • Potentially or,
  • Perceived as being

It is not enough to get in a second or third opinion to form a committee of decision makers. Bias is assessed using the principle of one biased all biased, rendering any such decisions as biased as if they were made alone. 

When assessing whether there is perceived or potential bias, the law uses the reasonable person test to make the assessment: would a reasonable person in full possession of the same information think there was a potential or perceive a bias?

Flaws found by the Industrial Relations Commission (NSWIRComm 51 ) included:
  • the relevant decision-maker admitted that she: (a) had a pre-determined view of the outcome of the investigation prior to its completion and (b) took irrelevant matters into consideration in making her decision,
  • the initial investigator had been involved in one of the alleged incidents and had previous disagreements with the employee under investigation,
  • two witnesses present at the alleged incidents were not interviewed,
  • there were unreasonable delays in the process,
  • the employee under investigation was not given details of the allegations against him until he was interviewed many months after the investigation process commenced.
Putting this into practice in workplace investigations or in performance management practices:
  • The right to be heard means making sure the employee has enough information to know what they have done wrong, and provide them with an opportunity to be interviewed and provide their side of events.
  • Ensuring an unbiased decision maker means removing decision makers, managers and investigators who have had prior dealings with the employee that could affect their view of the current case. Anyone with a conflict of interest in determining the case without bias should be distanced from the proceedings.
  • The right to have the decision based on evidence entails collecting all the available evidence within reason, and assessing that evidence without bias or favour. Knowing how to weight the reliability of different forms of evidence is critical in drawing the correct conclusions in law.

Safe Work Australia Draft Code of Practice - Preventing and Responding to Workplace Bullying

Procedural Fairness: a practical guide for workplace investigators 

Five top tips on investigating workplace bullying

Harriet Witchell - Wednesday, June 19, 2013

New federal legislation passed this month means employers will need to pick up their game when managing complaints of workplace bullying.

Prevention is the best place to start. However, putting in place suitably qualified staff capable of conducting robust investigations and managing difficult cases is an essential strategy for any employer.

Previously, the investigation of workplace bullying involved managing the challenges of workers taking ‘sick leave’ and lodging a compensation claim for the stress caused by bullying at work.

Employers may also have had to navigate issues when HR became the subject of complaint when they assisted managers with performance management.

From 2014, however, HR policies and procedures will come under scrutiny directly by the Fair Work Commission, and staff will potentially have to handle prevention orders from the FWC.

This kind of oversight is not new to all business, but many will find this unfamiliar territory stressful. It will provide complainants with an extra level of control.

For the past 12 years, WISE Workplace has helped companies and government agencies manage investigations into bullying. Here are our top five tips for the successful management of these often difficult cases:

  1. Ensure procedural fairness is afforded to both complainant and respondent. This means allowing both parties to have their say.  More than just a procedural step, the key to procedural fairness is to ensure that this is done with an open mind and that key decisions are not made until ALL parties have been spoken to and supporting evidence gathered.
  2. Do not make assumptions based on your prior knowledge of parties involved. There are just as many frivolous, ill-conceived complaints as there are substantive ones - and some of the biggest bullies sit high up in an organisation.
  3. Do not allow staff to make ‘confidential’ complaints that may be about bullying. You have a legal responsibility to ensure that bullying behaviour does not go unchecked. If you receive complaints or whinges of behaviour that you consider could be bullying you will need to start an investigation regardless of the wishes of the complainant.
  4. Resist the temptation to perceive complainants as ‘difficult’ or disingenuous because they use or threaten external avenues for complaints. Lodging a workers compensation claim if you are harmed, lodging a complaint with the Fair Work Commission, a human rights commission, ombudsman or solicitor are all legitimate avenues for a victim of bullying. In extreme cases, victims may also legitimately report actions to the police. These things make the cases complex not implausible. 
  5. Make sure you understand the concept of the ‘reasonable person test’ when it comes to assessing management action and behaviour that may have a risk to health and safety.

Safe Work Australia has released the Draft Code of Practice - Preventing and Responding to Workplace Bullying for public consultation. Responses are invited until 15 July, 2013.

WISE Workplace offers training to HR professionals and managers on how to respond to workplace bullying, conducting investigations and making findings of fact. For more information you can call us on 1300 580 685.



Fair Work Amendments: What’s new on bullying in the workplace

Harriet Witchell - Wednesday, May 29, 2013

 

Joanne was keen to take up a new position in an office she had previously worked in. She looked forward to working with former colleagues.

But far from being greeted with the bonhomie and friendship she had been familiar with, she was met with the cold shoulder. Excluded from morning teas and team lunches, no one wanted to cooperate with her.

Earlier,  she had been part of the management team; now she was in a new role created to support some of the more complex tasks of her colleagues – a role they resented. Within days of returning to work, Joanne was in tears, feeling excluded and isolated by the treatment of colleagues.

The distress Joanne felt soon resulted in her having to take time off and work from home. Before long, she was showing signs of depression.

Joanne made repeated reports of her distress to her managers. While they were able to see the effects of the bullying, they didn’t feel that they were able to intervene because they regarded the issues as “petty office politics”. They saw the lunch time gatherings as being events “outside work” and, as such, they were occasions over which they had no control.

In another case investigated by WISE Workplace, a personal assistant experienced high levels of stress - and ultimately depression - following micro-management of her daily tasks. Her manager became increasingly impatient with her over timelines and project management.

The micro-management and impatience displayed by her manager led to increased feelings of incompetence and worthlessness that quickly lead to anxiety and lack of confidence in the work she had previously undertaken without worry.  

The manager’s reaction was to commence performance management which instantly had a further detrimental effect on the PA’s performance and ability to do her job.  

Under the proposed changes to the Fair Work Act 2013 (Fair Work Amendment Bill 2013) that is expected to be rolled out in July 2013, both cases present a challenge for businesses.

Both employees will be eligible to submit a claim to Fair Work Commission (FWC) to stop the bullying and it will be the Commissions job to determine if bullying has occurred and whether it is appropriate for them to take action to prevent the bullying from continuing.

The amendment to the Fair Work Act would give the FWC the jurisdiction to deal with bullying complaints including:

  • Defining bullying in terms of repeated unreasonable behaviour by an individual or group of individuals towards a worker or group of workers where the behaviour creates a risk to health and safety;
  • Clarifying that bullying does not include ‘reasonable management action carried out in a reasonable manner’;
  • Enabling a worker to apply for an order if the worker reasonably believes that he or she has been bullied at work;
  • Enabling the FWC to make any order it considers appropriate (other than an order for payment of a pecuniary amount) to prevent the bullying;
  • Requiring the FWC when considering the terms of an order to take into account outcomes from any investigation conducted by the employer or other body, any relevant procedure available to the worker (eg. a procedure within a company policy which deals with bullying), and any outcomes arising from a relevant procedure; and
  • Requiring the FWC to start to deal with an application within 14 days of the application being made.

People have different levels of resilience to bullying. One of the key variables is the amount of control a victim has over the situation.

For example, when work is scarce, or employment options limited - or the dependence of an individual on their wages is high - workers feel that they have less control and fewer choices over how to respond in situations where they feel they are being bullied.

In the cases illustrated above, there has been a discernible effect on the health and safety of the employees.

Whilst there is no discussion yet as to how the FWC will assess whether the wellness of a claimant is directly connected to the behaviour they experienced, it is sure to be different from the workers compensation process.

In the latter process, the employee has to demonstrate that the ill health was caused by the bullying – any evidence of prior mental health issues is often enough for the insurer to escape liability.

The focus of the FWC will be on whether the behaviour experienced was likely to lead to ill health of the complainant. The degree of ill health experienced will vary from individual to individual, with some being more resilient than others.

The question under consideration will be ‘reasonableness’.

In the case of the PA, the amendments to the Act expressly exclude ‘reasonable management action.’ Formal performance management is often a legitimate process that the complainant incorrectly interprets as bullying, but at times can be part of an overall pattern of bullying. In addition, at times complaints are made to deflect from an employee’s poor performance.  

Employers will be greatly assisted if they conduct a legitimate independent investigation processes to determine the reasonableness of their manager’s actions.  Basic management training, focusing on coaching and performance management communications, are going to become an essential element of supervisor training along with good record keeping.

In Joanne’s case, the inability of managers to understand what was a work related event was a barrier to her having her complaint handled internally.  The boundaries over when work starts and when it finishes have been blurred with the advent of social media but there is considerable case law now that establishes a few facts to enable managers to determine if the bullying conduct is a work-related matter or not.

  1. Is the primary relationship between the parties work related?
  2. Has any of the conduct occurred in the course of work, or during work hours, while one or more of the parties is at work? 
  3. If the behaviour is outside of normal work hours has it occurred at a place or event primarily attended for, or by, employees?
  4. If the behaviour has been undertaken through digital means would a reasonable person view the communication as originating due to a work issue or relationship?

If the answer to any of these questions is “yes”, then the employer needs to take some action in respect of the bullying.

The essential elements that employers need to consider when reviewing a complaint of bullying is:

Has the conduct complained about occurred whilst at work?

See comments above on the stretching of these boundaries in recent years.

Is the conduct complained about unreasonable?  
That is, would a reasonable person consider that under the circumstances the behaviour would be likely to cause an injury to the health and safety of the other person?

Is the behaviour repeated?
The behaviour does not need to be undertaken by one individual but can be carried out by many individuals, but generally against one person (the target).

Has the behaviour created a risk to health and safety?
There only needs to be a risk, not actual harm, to health and safety.

Is the behaviour reasonable management action?

Again, the test of “reasonable” is would a reasonable person knowing the full circumstances consider the behaviour to be reasonable?

If, as an employer, you believe you have a complaint that might be considered bullying the best option is to undertake an investigation, document the actions taken and the reasons why. These actions will need to be taken in conjunction with any risk management action required to ensure the health and safety of the staff concerned.

Remember,  an effective investigation is procedurally fair, unbiased and conducted within a reasonable time frame.

Finally,  what you do as an employer in response to a bullying complaint will be open to review and will come under more scrutiny than ever with the advent of the amendments to the Fair Work Act.

Some simple rules:

  • If you don’t have the skills or experience to deal with a bullying complaint - call an expert.
  • If you don’t know how to conduct a fair and professional investigation - call an expert.
  • If your answer to Q1 & 2 is “unsure” – call an expert!

 

 

Small Business Dismissals 'Need Reasonable Investigation’

Jill McMahon - Wednesday, May 22, 2013

 

 By  Jo Kamira

The Fair Work Commission ordered compensation to an employee dismissed for theft and other misconduct last month in a case that highlights the need for even the smallest of companies to conduct proper investigations before summarily dismissing employees.

In our experience, many small business owners believe they aren’t subject to unfair dismissal laws and don’t have to investigate allegations of misconduct before they terminate someone’s employment.

A ruling in March by the Fair Work Commission – relating to a business that employed just four people - illustrates how this perception is misplaced.

The case involved an employee who was summarily dismissed and handed a letter stating his conduct at work had included “engaging in theft”.

The Small Business Fair Dismissal Code, which applies to businesses that employ 15 or fewer employees, states: “it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.”

The code defines “serious misconduct” as including “theft, fraud, violence and serious breaches of occupational health and safety procedures.”

At issue in last week’s ruling was not whether the employee had stolen from his employer, or even if the employer believed he had done so, but rather whether the employer had “reasonable grounds” for his belief.

In concluding that the dismissal was unfair, Commissioner Ryan said the employer “did not carry out a reasonable investigation” and had only looked at his accounts and jumped to a conclusion. The employer alleged that the employee had ordered cutting wheels and electrodes for himself using his employer’s account.

If the employer had investigated the matter properly, he would have had to interview the other employee in the company who also used the equipment. He hadn’t done that. Moreover, the employer hadn’t even asked the employee about the theft before he was dismissed, or even attempted to locate the cutting discs the employee had ordered.

Whilst the small business code gives an employer the ability to summarily dismiss an employee for theft, with no need to report the theft to the police, this case demonstrates employers should conduct an investigation in order to provide supporting information to show reasonable grounds for their belief.
Click here for the full decision. 

Tips for conducting a simple investigation:

  1. Get the specifics of the complaint and write down the information initially provided to you that gives you your suspicions;
  2. Check the information that is provided to you – ask witnesses and look at documents or check store rooms if it is alleged that property has been stolen;
  3. Document what you do and what you are told;
  4. Provide the accused with an opportunity to give an explanation of what has been alleged  - include specifics and provide a copy in writing if you can;
  5. Be prepared to reconsider your response based on the answers your employee gives you;
  6. Make your final decision when all the information has been gathered and the employee given a chance to explain what happened.

Don’t forget, if the conversation with the employee results in termination/dismissal they should have a support person present.

If you need help with an investigation, WISE Workplace provides a supported investigations service, including advice over the phone.

The respondent interview - Part II: Eight questions answered

Harriet Witchell - Wednesday, May 15, 2013

The respondent interview can be particularly challenging in an investigation. What may at first seem like a simple matter, often evolves into a more complex case after only the first interview. How do investigators handle some of the key issues around respondent interviews? Here are my responses to some commonly asked questions.

Can you dismiss part of a complaint if it relates to “reasonable management action” rather than harassment?
Employers need to evaluate all complaints carefully, and if they conclude that any of the conduct in question amounts to “reasonable management action” they are not obliged to commence or continue an investigation or take disciplinary action.
However, they do need to consider the risk of failing to investigate a complaint thoroughly. A thorough investigation that concludes some, or all, action is reasonable may prevent further complaints, and may also assist in mediation to help improve working relationships. (Read more about mediation here)

What if a second allegation of a similar nature (by a separate person) is raised before the conclusion of an investigation?
This depends on an assessment of the terms of reference for the initial investigation, and on what is fair to the respondent. The investigator would need to work closely with the employer and investigation manager to assess whether the complainants are known to each other, how similar the behaviours are, what would be the impact of the delay caused by adding to the investigation and what would be the impact of advising the respondent of the second complaint? Generally speaking, it would be fairer to incorporate the second matter at the same time and change the terms of reference if necessary. However, this is where experience is important because there is usually no right or wrong answer – it boils down to sound judgement.

What if a respondent raises counter-claims against the original complainant?
The interview is the respondent’s opportunity to have their say. If their defence to the allegations is make counter claims, then try to separate their account of the alleged events from fresh complaints. In some cases a second interview may be required to cover their complaints.

What are the legalities of audio recording and what permission do you need from the parties involved?
You are allowed to audio record a conversation and use that as evidence in a court or tribunal if a person has been advised that you are recording. It is polite to gain permission. If a person declines to be recorded you should find an alternative way to record the interview – such as taking notes, using a note taker or possibly a second interviewer to corroborate the meeting.
The legislation around recording was designed to prevent covert recordings being used in evidence against people and this is managed by the use of warrants given by magistrates, usually for criminal activity.
In the civilian space, you can covertly record conversations but if you tried to use this evidence it would be contested unless you are using it to defend yourself against allegations of inappropriate conduct.

Do privacy laws restrict how information obtained in an interview can be shared?
Privacy legislation is designed to control the use of personal information by organisations. It is a breach of the law to distribute private information collected for one purpose to anyone else for a different purpose. i.e. you give your phone number and address to your doctor so they can contact you, but they cannot send this information to a pharmaceutical company without your express permission. Private information contained in interviews might include medical history or personal relationships. As long as the person interviewed is aware of what the interview is being used for, and who will see it, there shouldn’t be a breach of privacy legislation.

How should investigators deal with a respondent’s request to change written notes?
On transcriptions, alterations should be made in handwriting and initialled by the person changing them. In a summary document, the respondent may add extra sections and sign the end of the document.
If it is a statement, they can change it until they are happy with the final version, and then sign it. A statement is effectively what the respondent would say in court, if required, rather than an original record of what was said in a meeting or interview.

How can an organisation minimise the risk of retaliation against a complainant?
The best protection is to have the right workplace culture in place. Failing this, employers should consider mediation, restorative justice/respectful workplace programs or, as a last resort, relocating the complainant. Employers need to be proactive about changing workplaces cultures.

Who should receive a report at the conclusion of an investigation?
Reports go to the person requesting the investigation. They may delegate this to others to assess first and the report may go to the executive board depending on the type and size of the organisation. Generally, unless specifically decided beforehand, reports do not go to either complainant or respondent. But if they do, investigators may need to exclude some sections in order to maintain privacy. Transcripts would not go to the parties in a dispute, but they would be provided to decision makers.
When providing a response to the complainant at the conclusion of an investigation, most guidelines recommend a summary of the investigation process and the key findings. This summary may also include some details of the outcome for the accused, but again investigators and managers need to be mindful of privacy.

WISE wins international book award!

Harriet Witchell - Wednesday, May 08, 2013

 

“Alison and I are thrilled to be a Bronze winner in the Business/Career/Sales category of the IPPY Independent Publisher Awards 2013, getting the recognition for the effort that has gone into the book is very satisfying”. Our book was selected from over 5000 international entries and the award ceremony will be held in New York at the end of May.

Writing Investigative Interviewing: A guide for Workplace Investigators was the brain child of Harriet Stacey,  “After conducting research in the area of investigative interviewing and training numerous police and other industry investigators I felt that there was a lack of advice for workplace investigators on how to conduct effective interviews. The book sought to make the amazing advances that research has made in this area accessible to practitioners and this award indicates that we have done that.”

Alison Page provided essential legal advice and edited the work to create a text that is legally correct, up to date and relevant for all investigators working in the industry.

Recognition should also go to Jill McMahon from Frankie and Boyd who provided excellent design and eye catching graphics for the book.

The Independent Publisher Book Awards were conceived in 1996 as a broad-based, unaffiliated awards program open to all members of the independent publishing industry. The awards are intended to bring increased recognition to the thousands of exemplary independent, university, and self-published titles produced each year, and reward those who exhibit the courage, innovation, and creativity to bring about change in the world of publishing.

Buy our book here...

We can learn much from a recent court case

Jill McMahon - Wednesday, May 01, 2013

Court cases can provide valuable insights into the way people behave at work – and lessons for everyone on how to prevent workplace disputes degenerating into bullying and discrimination.

More specifically, directors of organisations should be aware of the risks of vicarious liability; when people they employ to manage others break the law.

A recent case, Burns vs Media Options Group, is instructive; the Federal Court ordered the company to pay a former employee more than $100,000 in damages and interest for breaching both the Disability Discrimination Act and the Sex Discrimination Act.

The dispute started when an employee, a printer, had to start caring for his partner after she had contracted a rare form of terminal cancer. He took her to medical appointments and was the only person available to help her cope with her illness.

The business manager and his wife, who was also an employee, disapproved of this because it affected the business’ operation.

The manager told the employee to “get rid of” his partner, pressured him not to leave work until he had finished the tasks allocated to him, berated him for being late for work and being unavailable to work overtime, as well as making derogatory comments about his partner.
In addition, the manager’s wife told the employee he was “stupid”, that she was “sick of his problems”, and he had cost them money.

Ultimately, they dismissed him in November 2005 – in the presence of two police officers - for reasons that the court later found to have been fabricated to justify the dismissal.
Judge Nicholls awarded the employee $10,000 in aggravated damages because the manager and his wife – who both later became directors of the company - had acted “high-handedly, maliciously, insultingly or oppressively in committing the act of discrimination.”

He rejected counter-complaints by the company that the employee had made racial comments, sexually harassed staff, was violent and drank at work, noting that the company had not pursued such allegations in separate proceedings.

Section 15(2) of the Disability Discrimination Act makes it unlawful for an employer to discriminate against an employee because of the disability of an employee's associate. This can include a spouse or someone living with them on a "genuine domestic basis".

In addition, an employer will have breached the Sex Discrimination Act if they discriminate against an employee on the grounds of family responsibilities or if the employer treated the employee less favourably than an employee without such responsibilities.

While plans to consolidate anti-discrimination legislation have been delayed, the government has introduced amendments to the Sex Discrimination Act to include discrimination against sexual orientation, gender identity and intersex status.

Wise Workplace helps mediate workplace disputes as well as conducting investigations into allegations of misconduct.

The respondent interview - Part I: Five (of many) things you need to know

Jill McMahon - Wednesday, April 24, 2013


When an employee is accused of doing something wrong (we call them a respondent in a workplace investigation), they may lose their job or worse, their reputation. Understandably, that can put people on the defensive.

They may engage in a number of strategies to minimise the consequences – from refusing to cooperate, to outright denial and spreading the blame to others. All of that can make the respondent interview a challenge.

Here are just a few pointers to help you start out on the right foot.

Don’t assume that all respondents will be hostile
We naturally tend to assume that someone accused of wrong-doing will try to deny it or at least make it difficult for us to find out what happened. Don’t assume anything.

In fact, the research on this (involving serious criminal offences) suggests about a quarter of offenders plan to deny wrong-doing, about a third decide to cooperate, and almost half wait to see how they’re treated. If people accused of wrong-doing are treated in a confrontational way then they are less likely to confess.

What if a respondent refuses to cooperate?
You cannot infer guilt from silence. Decisions are made on the basis of available evidence. If the evidence establishes a balance of probabilities that the respondent did something wrong, then without an alternative explanation, the decision-maker may find against them.

If a person declines to answer questions you can advise them calmly that a decision will be made based on the evidence, and that their perspective won’t be represented in that decision-making process.

What if an investigation leads to criminal charges?
If there is a possibility of criminal charges you should consider whether the police should be handling the matter first. If this has already been dealt with and police have given the go ahead to investigate, or won’t act until your investigation is complete, you need to understand the role of the caution.

In administrative investigations, the evidence can only be used in administrative decision making. For a confession to be admissible in a criminal trial a criminal caution should be provided first. There is nothing to stop a civilian investigator giving a criminal caution thus making the evidence admissible in a criminal hearing.

If you have any knowledge of criminal law and someone incriminates themselves, you can give the caution before proceeding, and the evidence will probably be admissible in a criminal court. However, any use of a civilian investigation into a criminal matter is almost certainly going to be contested in court.

How much information should you share with a respondent?
The investigator needs to provide enough detail for the respondent to understand what it is that they are being accused of.  For example, “Now, about this incident at work ...” probably isn’t enough. “It’s been alleged that you physically assaulted John Smith at work on the afternoon of February 18th” may be all it takes.

The more experienced an investigator, the better able they are to use their judgement - based on the nature of the allegations and scope of the investigation – about whether to adopt “selective or gradual disclosure” of evidence as a means of trying to obtain as full an account of the incident or events as possible.

This can also help identify key details that may be in dispute between parties and therefore require further investigation. For example, “You say that you pushed Mr Smith against the wall once. Someone who claims to have witnessed the incident says you grabbed Mr Smith by the hair and banged his head against the wall several times.”

Should the names of complainants be provided to a respondent?
Two principals come into play here: fairness to the accused, and protection of the complainant. The respondent must be provided with sufficient detail to respond to the allegation and that may include details of the complainant who is a victim.

However, an investigator needs to use their judgment. In some cases, disclosure of the complainant is unnecessary. But this must be weighed against the risk of the respondent making incorrect assumptions about what they’re being accused of and being unable to defend themselves against what could be a malicious complaint.

Interested in exploring these issues further? Professor Ray Bull is conducting a series of Master Classes on Investigative Interviewing in Brisbane, Sydney, Melbourne and Perth. Click here for further details.

Can you conduct a workplace investigation? Wise Workplace offers a full or supported investigations service.  Just call us on 1300 580 685 if you need help.




Investigative interviewing: five strategies to ask questions that count

Jill McMahon - Wednesday, April 17, 2013

Construction worker on the phone 

A sub-contractor on a construction site was instructed by a lead contractor to start drilling through a wall - despite warning signs on site that indicated the risk. He hit an electrical cable and received a massive shock. Amazingly, he lived.


As the dust settled, managers of several businesses involved in the project, realising the potential liability from this breach of health and safety, initiated a full investigation.

This incident is typical of the kind of health and safety breach that benefits from independent investigation – there is too much at stake for any of the parties involved to investigate this incident themselves.

The key is to obtain a complete account of what actually happened.

Here are 5 key strategies, or steps, in the process of asking questions of the people who were involved in or witnessed the incident that a professional investigator would use to get as close as possible to the truth of exactly what happened.

Step 1 - Obtain a free recall
A free recall is an account of events offered by a person free from guidance or interruption by the investigator. The investigator should ask a very broad open question seeking as much information as possible from the interviewee about the incident. It’s always advisable to seek a free recall before asking specific questions. For example: “I am investigating the circumstances surrounding John James’s accident. I’d like you to tell me everything you can about how it happened.”

Step 2 - Establish a timeline
Create a timeline based on the information obtained in the free recall. A timeline is a chronology of events. This will form a road map for questions later on in the interview. You may need to obtain evidence that requires the order of events to be very clear. For example: “When did Mr Smith ask you to start work on the drilling? Was that before or after you received the briefing from the electrical contractor?”

Step 3 - Recreate the context
Recreating the context of events surrounding the incident can be an effective way of obtaining a free recall. You can do this through verbal instructions to the interviewee. For example:  “Please close your eyes and think back to the time of the incident. Imagine where you were and then tell me everything you can about what happened” – and by asking them to draw a sketch. Encourage the interviewee to describe verbally what they are drawing at the time, and also ask them to label the diagram and sign it. Use this to ask clarification questions. For example: “You have drawn the stairs over here, was it directly opposite that window?”

Step 4 - Obtain a second recall
Interviewees rarely disclose all information in a first recall. Asking a person to recall the events for a second time normally produces more detailed information. But it’s a good idea for investigators to narrow the questioning to more specific issues; otherwise the interviewee may lose interest in the interview. For example: “In the first interview, you said Mr Smith was in a hurry to get the job done, can you explain why you had that impression?”

Step 5 - Ask probing questions
Probing questions are those that seek specific answers. They should be open to allow an unlimited range of responses wherever possible, but the occasional use of a closed specific question to clarify a point is also advisable. (Closed questions are those that illicit only a single “yes” or “no” response - or a very limited range of responses.) An example of a probing question may include: “What training have you been provided on the use of this machine?”

For further information on investigative interviewing skills you can purchase a copy of our book Investigative Interviewing here.

The support person and investigative interviewing – key considerations

Harriet Stacey - Wednesday, April 10, 2013

 

I often get asked about the role of a support person in an investigative interview, so here are my responses to three of the most common questions.

Do we have to have a support person present?
There is no legal requirement for a support person to be present at a workplace investigative interview. The law states, however, that there should be no “unreasonable refusal” when discussing a serious adverse matter such as the dismissal of an employee.

In such situations, then, it is strongly advisable to have someone present to provide support to the interviewee, because courts have ruled against employers who prevented a support person attending an interview in some cases.

For interviewees who are apprehensive about the process, perhaps speak English as a second language or may in some way be considered vulnerable having the emotional and moral support of someone they respect can help them understand the situation. .

My advice is simple: it is best practice to invite, if not encourage, an interviewee to have a support person - especially in any meeting where there is a chance of an adverse outcome. In the case of an interviewee who may be considered vulnerable, I would insist on a support person being present - unless there were exceptional circumstances.

Watch this short video showing how to brief a support person.


Ultimately, the presence of a support person is about two things: to create a more relaxed and less intimidating situation for the interviewee, so that they feel more confident and more inclined to impart information, and to ensure that the interview takes place in a fair and non-threatening environment.
 
That said, interviewers should ensure the integrity of their whole investigation, and this leads to another commonly asked question:

Can investigators prevent a particular person attending an interview as a support person?

A support person who is any way involved with the matter at hand may risk compromising an investigation. For example, if there is a perceived risk that someone may collaborate with witnesses or others who are yet to be interviewed, that they may manipulate the outcome of an investigation – even unwittingly - they shouldn’t be allowed to attend.

A support person should not be a minor, and investigators should also take care in circumstances where the support person may hear allegations or information raised in an interview that could adversely impact their relationship with the interviewee. For example, an employee may bring along their spouse who is then confronted with allegations of sexual misconduct which they hadn’t known about earlier.)

It is inappropriate for someone who has been involved or may be involved in the investigation to act as a support person.

Another typical question is about managing the interview with a support person present;

How do you handle things when the support person tries to interfere?
If a support person is disruptive in an interview, investigators should state - and re-state - the role of a support person. Explain that this is the interviewee’s opportunity to tell their version of events.

If they continue to disrupt, you may need to warn them politely that if they persist, they will be excluded and the interview closed. Avoid getting into an argument: it’s better to put your concerns to the respondent directly and empower them to deal with their support person.

A lawyer can be a support person, although in the case of a matter affecting a small business with fewer than 15 employees the lawyer cannot act in a professional capacity.  If a lawyer is acting as a support person, they can consult with their client but they must not answer questions on behalf of the interviewee.

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For more information on investigative interviewing, you can purchase a copy of our book Investigative Interviewing: A Guide for Workplace Investigators by Harriet Stacey and Alison Page here . If you’re conducting an investigation and need help don’t hesitate to call us on 1300 580 685 to find out more about our supported investigations service.