Briginshaw Applied: Weighing Up The Evidence

Vince Scopelliti - Wednesday, February 13, 2019

For those involved in workplace investigations, one court case seems to be of central importance - Briginshaw v Briginshaw. Interestingly, this 1938 case is actually about alleged adultery in the context of divorce! So the question immediately arises - why do the concepts in Briginshaw seem to hold sway in the context of workplace investigations? 

In a nutshell, the Briginshaw principle acknowledges that evidentiary requirements in civil cases will necessarily vary, depending upon the gravity of allegations made. Yet it is also important to know the difference between Briginshaw and the actual standard of proof that applies in all civil cases, such as workplace wrongs - namely the balance of probabilities.

is the balance of probabilities the same thing as briginshaw?

To speak of the Briginshaw 'standard' can cause unnecessary confusion. It is the balance of probabilities that is the standard of proof in civil matters, such as workplace disputes. The Briginshaw principle simply helps courts and tribunals to evaluate available evidence when considering this standard - particularly where serious accusations are made.

Think of the types of grave allegations or proposed actions that can occur in civil contexts: child sexual abuse, the need to deprive a mental health patient of their liberty, being labelled as a bully or harasser in the workplace, and so on. 

In such serious matters, it is clear that available evidence must be strong, cogent and objective. Thus while the standard of proof always remains the same, the Briginshaw principle requires serious allegations to be backed by particularly compelling evidence.

serious allegations - establishing the facts 

In Natalie Bain v CPB Contractors Pty Ltd [2018] FWC 6273 (9 October 2018) the plaintiff's colleague Mr Skinner accused Ms Bain of trying to hit him while she was driving a heavy truck at full speed. The Commission expressed concern at the very grave nature of these accusations, and the severe consequences for Ms Bain should such facts be established. 

In assessing the evidence both from Mr Skinner and two witnesses, Senior Deputy President Hamberger described Mr Skinner's evidence as 'inherently implausible', noting that he also had 'reason to seriously doubt the veracity of the evidence' put forward by two alleged witnesses.

SDP Hamberger provides an excellent nutshell summary of Briginshaw: 'Consistent with the principle in Briginshaw, therefore, one would need very good evidence before accepting that such an allegation is true on the balance of probabilities.' 

When we consider the task of a workplace investigator, the principle in Briginshaw - as we have seen played out in the Bain matter - requires investigators to ensure that all evidence is elicited in a manner that is mindful of fairness and veracity. Bain reminds us that poorly presented allegations and unreliable witnesses will hamper any attempt to prove, on the balance of probabilities, that an event actually occurred. Investigators need to bear in mind that the quality of evidence obtained can seriously affect success in later proceedings.

an unfortunate reaction

In Shakespeare v Director General, a NSW teacher alleged as part of her grievance that colleagues had deliberately or recklessly exposed her to items - oranges and mandarins - which caused a severe allergic reaction. The implication was that fellow teachers had deliberately or recklessly placed Ms Shakespeare in medical peril - something that the worker strongly believed to be true. 

However, the NSW ADT stated that even though a party might believe passionately that they have been seriously wronged, this is not sufficient in itself to meet the necessary standard: 'we see no reason to doubt the sincerity or the strength of [the teacher's] belief that she was the victim of deliberate conduct. But this belief on her part, standing alone, does not constitute probative evidence on the question.' 

Making defensible findings 

This is a good reminder of the need for workplace investigators to elicit cogent, comprehensive and objective evidence from a number of sources when making findings. In the face of serious allegations, numerous sources of data and testimony should be gathered prior to findings being made. 

Distinguishing Briginshaw from the standard of proof might seem like splitting hairs, yet a solid understanding of Briginshaw in action will assist investigators to gather and analyse evidence fairly and correctly. 

If you are unsure of how to use Briginshaw when making findings for investigations, WISE provides independent, supported investigation services. Contact us today!

Why Counter Allegations Must Be Investigated

Vince Scopelliti - Wednesday, February 06, 2019

In the usual course of workplace investigations, it is often one person's word against another's. This is particularly the case when a serious allegation such as sexual misconduct has been made, and there are unlikely to be any witnesses to the event. 

When a serious allegation has been made, often the 'accused' then makes their own claims against the accuser, resulting in cross and counter-allegations.

the difficulty this causes for investigators

Occasionally, counter allegations are made immediately after the investigation is made known to the respondent, and this can make it more difficult for even the most experienced investigator to determine the true course of events leading up to that point. Counter-allegations also sometimes surface once an investigation is already in progress, making it harder for investigators to discern whether they are legitimate or simply made with the objective of revenge. 

The most important thing is that each allegation should be investigated independently. 

the danger of not investigating counter complaints 

A recent decision of the Fair Work Commission demonstrates the importance of ensuring that all allegations are thoroughly and independently investigated, regardless of the circumstances in which they are made. 

In the decision of Watts v Ramsay Health Care it was determined that an employer's failure to investigate complaints of bullying was in itself a form of bullying. 

In these circumstances, Ms Watts repeatedly advised her employer that she was feeling harassed and bullied by her peers, including her co-workers making accusations of Ms Watts smoking cigarettes past her allocated break, smelling of alcohol and failing to perform her duties adequately. 

Ms Watts raised those concerns in the context of a formal investigation by her employers into her own conduct. 

However, her employers failed to investigate Ms Watts' counter complaints on the basis that there was insufficient information and evidence to support Ms Watts' allegations, against a background where she did not name the offenders. 

The Fair Work Commission ultimately determined the failure to investigate the bullying investigations was an inappropriate and unreasonable management decision, and a breach of the employer's own discrimination, bullying and harassment policy.

what are the key lessons?

Perhaps the most important aspect of undertaking fair workplace investigations is ensuring that internal policies are followed, in particular focusing on:

  • Determining and implementing the threshold requirement for commencing an investigation, for instance requiring a formal written complaint before management action can be taken;
  • Being flexible in interpreting the information provided and not imposing arbitrary minimum standards, for instance requiring direct evidence of wrongdoing;
  • Taking into account the context surrounding the making of the allegations. 

 Employers and management should also ensure that they do not make early judgments or allow themselves to be biased in the context in which the allegations are made. In the case of Ms Watts, for example, her employers appear to have judged her allegations on the basis that they were made during the course of her own performance management process. 

It can be challenging for investigators when presented with counter-allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, or formal qualifications such as Certificate IV and Diploma in Government Investigations.

Is Briginshaw Still the Best Way of Solving the Puzzle?

Vince Scopelliti - Wednesday, September 19, 2018

As any HR manager will testify, conducting workplace investigations is one of the most important but vexed aspects of ensuring that an organisation runs smoothly. 

This is particularly the case when the various parties involved in an investigation are putting forward different versions of events - who do you know who to believe? For many years, workplace investigators have employed the Briginshaw test. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1930) 60 CLR 336 is generally regarded as authority for the proposition that if a finding, on the balance of probabilities, is likely to produce grave consequences the evidence should be of high probative value.

But how is this test applied to resolve disputes and make findings in workplace enquiries?

what is it?

The Briginshaw test refers to the civil standard of proof employed in the legal system, specifically in the 1938 divorce case of Briginshaw v Briginshaw. A 'standard of proof' refers to the evidence required by a court or, in the workplace context, an employer or investigator, to make a determination as to the likely truth or otherwise of allegations. 

Although the criminal burden of proof requires evidence to support a finding of 'beyond reasonable doubt', the civil standard only requires an assessment on the balance of probabilities - that is, whether it is more likely than not that one version of events occurred rather than another. 

In Briginshaw, the High Court warned that making a decision on the balance of probabilities does not require a purely mathematical 'weighing up' of the likelihood of one version of events being true over another. Instead, the decision in Briginshaw supports a conclusion that sufficient evidence has been provided if "the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal". In the workplace context, the tribunal determining the matter is the investigator. 

CASE STUDY - SEXUAL HARASSMENT IN CITY HALL

In workplace investigations, individuals are required to respond to allegations, as was the case with the (now former) Lord Mayor of Melbourne. In late 2017, Robert Doyle was accused of having sexually harassed two female councillors by inappropriately touching them. 

In March 2018, an investigation conducted by a Queen's Counsel was finalised, although Mr Doyle had already resigned by this time. Given the seriousness of the allegations and the potential consequences, the investigation relied on the Briginshaw test, and applied a standard whereby the investigator was 'reasonably satisfied' that the specific allegations of sexually inappropriate conduct related to Mr Doyle in his role as Lord Mayor. 

In Mr Doyle's case, the investigators accordingly based their determination on being "satisfied to a level which goes beyond the mere likelihood that something happened" that the allegations could be substantiated. 

The findings included that specific allegations were substantiated. More specifically the investigator made three adverse findings of sexually inappropriate conduct, and a fourth finding that the three matters occurred in the context of the Mayor having consumed substantial amounts of red wine. 

Factors which were taken into account in making this determination, included the likelihood of Mr Doyle having engaged in the behaviour because he had consumed significant amounts of red wine, and his credibility as a witness. The investigation also noted that one of the complainants made contemporaneous complaints and was consistent in her allegations. 

The report stated no findings had been made by a court or tribunal based on the information reported on as part of the investigation, however, if proven the behaviour could constitute sexual harassment within the Victorian Equal Opportunity Act 2010, and gross misconduct under the Local Government Act 1989.

what can we learn?

One difficulty with applying the Briginshaw test in workplace investigations, is that an investigation does not constitute a judicial process. Accordingly, participants give information on a voluntary basis only. 

This inability to compel testimony or information from witnesses may mean that a determination is made on the balance of probabilities - but without having all information available. Indeed, in the absence of a court or the threat of perjury, there is no real compulsion for accurate information to be given in a workplace investigation. Undue reliance on such information could result in an unjust determination. 

Failure to recognise the difference between a court and the role of an investigator can lead to mistakes, and allegations can be left unsubstantiated in circumstances when they may have occurred. In circumstances where the investigator is inexperienced or does not have access to all required information, it may well result in an inequitable outcome, or a situation where a conclusion is made based on partial information or poor facts. 

When a workplace or employee faces allegations, its important for the investigator to ask the relevant questions, examine documents, and analyse all relevant evidence carefully when making conclusions about what occurred. Making findings using the Briginshaw principle and explaining the reasoning behind the outcomes of the investigation can assist employers in considering what further action needs to be taken in light of the findings. 

It is important for employers and investigators to ensure that findings of workplace investigations will withstand the highest level of scrutiny. A higher level of skill will be required from an investigator when circumstantial or uncorroborated evidence is being considered. 

If you require assistance analysing evidence, or conducting an investigation, contact WISE today!  

How Medical Evidence Supports an Unbiased Investigation

Vince Scopelliti - Wednesday, November 01, 2017

When claims of abuse in care come to light, strong emotions can arise for all concerned. It is not surprising that when an unexplained injury is uncovered, family members, care staff, and employers will want immediate answers. 

However, it is vital that employers maintain clear thinking and remain objective when investigating allegations of abuse in care. 

Engaging an external workplace investigator can be helpful in maintaining neutrality, and conducting a detailed, unbiased investigation. Medical evidence is also highly relevant in these situations as it is collected in a scientific manner, without bias towards a particular party.

zero bias when investigating assaults 

In emotionally charged situations, family and friends may understandably demand immediate answers about the cause of a loved one's unexplained injury. When abuse appears to have occurred against a vulnerable individual, it is a disturbing thought for all involved. 

Workplace investigators understand that despite - or perhaps because of - such high emotions, the investigation must be coordinated and managed with an extremely steady hand. 

An experienced investigator will be acutely aware of the rules of evidence and how important the accurate collection and management of the evidence will become, should the matter be taken on review. Accordingly, from the very start of an investigation, it is understood that all information, statements, workplace documents, interviews and clinical data is to be gathered with a view to fairness, objectivity and clarity.

assessing medical evidence

Family members of the vulnerable person affected by the unexplained injury may not be aware of the detail of the circumstances of the injury. 

Factors such as the site of an unexplained injury, medical history and medications, client age, frailty and demographics, unique aspects of accommodation and access, care routines, staffing variables and medical documentation - to name a few - will all form part of the complex medical evidence matrix when evidence is being assessed. 

Delays in getting the victim medically examined or a delay in reporting incidents can often mean that the medical expert may need to rely on descriptions provided by witnesses or photographs taken of the injury. This will significantly diminish the quality of the medical evidence. Poor quality photographs and descriptions will make it even more difficult to obtain any reliable medical evidence. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 is generally regarded as authority for the idea that on the balance of probabilities, if a finding is likely to produce grave consequences, the evidence should be of high probative value.

In cases of alleged assaults in care, professional investigators will ensure that all evidence - medical and general - is collected and reported on with utmost care. This approach ensures that irrelevant factors are not given weight. 

When the medical evidence is combined with overall procedural fairness across the investigation, the resulting investigative report into an alleged assault will be of high quality and robust in terms of the weighing of the evidence and findings.

    why an impartial investigation is important

    When investigating abuse in care, the standard of evidence obtained is a crucial factor. By including sound medical evidence, the investigator brings an unbiased and highly detailed viewpoint to the allegations of assault. This expertise can mean the difference between a fair and objective investigative report and one that is tinged by the emotionally charged nature of the situation. 

    Should the matter be taken on review, the court will apply the 'reasonable person test' to the facts and evidence available. If the investigation is not fair, clear and comprehensive, then the court may find the resulting report does not meet this standard. 

    If your organisation requires a workplace investigation into an unexplained injury, our team can assist with either full or supported investigation services. WISE are highly experienced in the complexities of investigating unexplained injuries in care settings, including the assessment of medical evidence.

    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. 

    ELEMENTS OF A GOOD INVESTIGATION REPORT

    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. 

    No Proof: The Key Role of Circumstantial Evidence

    Jill McMahon - Monday, December 14, 2015
    No Proof: The Key Role of Circumstantial Evidence

    The issue of circumstantial evidence can often arise in workplace investigations, and there can sometimes be confusion about how to handle it. 

    We take a look at the role of circumstantial evidence in this article, and our latest free white paper 5 Principles of Applying Circumstantial Evidence in Workplace Investigations also delves deeper into what can be a vexing issue for employers.

    Direct versus circumstantial evidence

    In some workplace investigations, there is no direct evidence. That is, there are no witnesses or other evidence directly linking the employee to the alleged misconduct. Yet there can often be indirect or circumstantial evidence, for example: 

    • Witness accounts that show a pattern of behaviour, for example an employee regularly being seen at the site of an alleged incident. 
    • Swipe card records that reveal an employee’s regular use of a particular exit at a particular time.     

    This kind of evidence can create an impression that the employee was involved in the incident. However, in workplace investigations, a feeling or impression is not enough for the investigator to be satisfied as to guilt. 

    Whether available evidence is direct or circumstantial, allegations in workplace investigations are determined according to the civil standard of proof, known as the balance of probabilities.

    Balance of probabilities

    In essence, the balance of probabilities means that the investigator must determine that it is more probable than not that the events occurred. This may require the investigator to compare competing versions of events from various witnesses to determine which version is more probable. 

    But Australia’s High Court has determined that there is more to the standard than this simple formula. In the famous case of Briginshaw v Briginshaw, the High Court held that a court should not lightly find that a serious allegation has been proved from circumstantial evidence alone. The High Court has since determined that there are no hard and fast rules in determining circumstantial evidence and the question is simply whether the allegation has been proved on a balance of probabilities. However, the NSW Court of Appeal has highlighted five principles surrounding the use of circumstantial evidence, which are available in our free white paper.  

    Applying the standard of proof

    In the context of a workplace investigation, consider a scenario of alleged time sheet falsification, where there is evidence that: 

    • The employee under investigation consistently failed to complete projects on time. 
    • Phone records showed regular outgoing calls from the employee’s assigned mobile phone during work hours from non-work locations at around the end of school hours. 
    • The employee’s children attend a school in the same area in which the phone calls originated. 

    The question is whether it is reasonable to infer from this circumstantial evidence that the employee regularly attended to personal matters during work hours, for example: 

    • Collecting children from school. 
    • Failing to return to work, even though the timesheets show that they worked an eight-hour day. 

    The employee might respond to the allegations by saying that: 

    • They cannot remember making any phone calls at a regular time to a regular place. 
    • They sometimes lent their phone to close family members who could have made the calls. 

    In this case, the investigator should consider the pattern of behaviour revealed by the outgoing telephone records and determine whether it is probable that the employee’s relatives made these phone calls. The more serious the allegations, the more carefully the evidence should be considered before reaching a conclusion. 

    In this situation, the investigator would interview all possible witnesses to try and find some direct evidence. If there is none and the view is that the circumstantial evidence is not strong enough, the employer may consider hiring a private investigator to determine what the employee does when they leave work each day.

    Handling circumstantial evidence

    It’s not ideal to be dealing with only circumstantial evidence when conducting an investigation. Witnesses and documents are very useful and as they are direct evidence, they carry much more evidentiary weight. But in circumstances where there is no direct evidence, as much circumstantial evidence as possible should be collected and analysed. If relying solely in circumstantial evidence in an investigation, proceed with great caution and seek advice before determining the outcome of the investigation. 

    Another Dimension to the Standard Of Proof?

    Harriet Witchell - Monday, August 31, 2015
    Another Dimension to the Standard Of Proof?

    It is not uncommon that following a workplace investigation, the former employee raises allegations that the process was procedurally flawed. In addition to considering the investigation process, we need to be aware that the standard of proof used to make any findings may be called into question. In other words, although the investigator may have followed all the appropriate steps, the findings themselves may not be sound.

    The case law

    The standard we are (hopefully) familiar with is found in Briginshaw v Briginshaw. In this matter, his Honour made it plain that before accepting the truth of evidence of a particular allegation, there is a need to consider the nature of the allegation and the likely consequences that will follow should an adverse finding be made.

    The legislation

    The standard of proof required is laid out in the Evidence Act 1995, where we are told that: 

    • In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. 
    • Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: 
    a. the nature of the cause of action or defence; and
    b. the nature of the subject-matter of the proceeding; and
    c. the gravity of the matters alleged. 
    What is the new dimension?
    Bartlett v Australia & New Zealand Banking Group Limited [2014] NSW SC 1662 relates to the termination of a senior executive’s appointment without notice for serious misconduct. In brief, an email sent to a journalist was doctored with the addition of a number of false statements. 

    The (now former) employee sued ANZ for damages for breach of contract alleging that he was not guilty of serious misconduct and therefore that ANZ was not entitled to terminate his employment without notice.   

    ANZ argued that it was entitled to terminate the employee's employment without notice, since such conduct would amount to serious misconduct within the meaning of a clause of the contract. 

    The clause that ANZ relied on was: 

    • b. ANZ may terminate your employment at any time, if, in the opinion of ANZ, you engage in serious misconduct, serious neglect of duty, or serious breach of any terms of this employment agreement… 

    The words "in the opinion of ANZ" mean that the underlying fact is not the determining matter but whether, in the opinion of ANZ, the employee was guilty of serious misconduct. In this instance, it was found that ANZ was entitled to dismiss the employee.

    What does this mean?

    When conducting a workplace investigation, the employment contract and any relevant policy and procedure wording should be reviewed to identify any provisions which may bear upon the appropriate standard of proof to be applied. The ANZ case also enables the employer to draft employment contracts, policies and procedures to set their own standard of proof in respect of termination clauses and other procedural matters.


    NEED A SPECIALIST?  ENGAGE AN EXPERT
    WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

    CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
    (Articulates with Cert IV in Government Investigations)

    Location: Brisbane
    Date: 16-18 September

    Location: Sydney
    Date: 13-15 October




    Bridging the Gap

    Harriet Witchell - Monday, August 24, 2015
    Interview Challenges Across the Civil and Criminal Divide

    There are special skills that come into play during any workplace investigative interview. Particular care is needed, however, when non-criminal elements of a child-related issue are under investigation. Criminal and civil investigative processes might both be required for the one workplace matter, and within each approach the challenges can be considerable.

    Child-related complexities

    At first it might seem unusual that a workplace investigator would need to get involved in an investigation concerning children. But if we think about it, the numbers of workplaces that either employ or interact with children are considerable; from schools and churches to fun parks and retail outlets. Care must be taken in such investigations to ensure that all criminal/ non-criminal aspects are well managed in the context of any vulnerable persons.

    Special workplace issues

    Criminal prosecution might seem like the only natural avenue to follow when a workplace issue relates to alleged child abuse. Yet often there will be non-criminal elements that come to the fore in such cases, related to misconduct, bullying, occupational health risks and the like. And very often these matters will need to be examined via a workplace investigation, regardless of the outcome of any criminal prosecution.

    The criminal angle

    In some cases, a criminal investigation will be carried out first where serious allegations are raised in the workplace. Understandably, police investigators employ interviewing techniques that are centred upon the criminal elements of the matter. Yet in many cases after a prosecution is dropped, workplace investigators are then left with investigative challenges such as:

    • Delays that can occur between the criminal matter and the workplace investigation.
    • Initial police focus in interviews upon criminality, which can bypass pertinent non-criminal issues.
    • Evidentiary issues flowing from differing standards of proof in criminal and civil matters.
    Some cases in point

    In a recent case involving a staff member and the client of a sheltered workshop, a police investigation was conducted into allegations of sexual assault by the employee. The police understandably focused upon the potential criminal elements. They did not proceed with prosecution, due to issues of legal competence and limited prospects of prosecutorial success. 

    Dilemmas of time and proof

    The workplace investigator in this case was then faced with issues such as witnesses who were no longer available, permission to use statements being refused, plus continuing issues around witness competence. Interestingly however, the differing standard of proof in non-criminal matters – plus specific evidence gleaned about complaints processes – were sufficient for the workplace investigation to generate successful outcomes regarding certain staff.

    Unsafe haven?

    In another matter involving a member of the clergy, delay caused considerable issues for the workplace investigation and the manner in which interviews could be conducted. The case involved allegations being made against a priest in relation to his dealings with a young boy. After 12 months, including several delays between the prosecution’s evidence-gathering endeavours, a decision was finally made by the police not to proceed with the case. 

    Taking up the non-criminal case

    The challenges then faced by the workplace investigator regarding the allegations in their industrial context were considerable. Taking up the case from the non-criminal point of view, the workplace investigator dealt with a number of difficulties around both time delays and prosecution-focused interview techniques. Despite these challenges, nuanced investigative interviews and evidence collection led to decisive action being taken on the non-criminal workplace issues. The principle in Briginshaw was carefully incorporated into all evidentiary activities carried out by the investigator, enabling appropriate action to be taken.

    Anticipate the challenges

    Between criminal and non-criminal investigations there can be a number of differences that need to be managed with care. Workplace investigators must work out ways to effectively elicit information that is relevant to the workplace issues. And the emphasis in work-related interviews will necessarily differ from interviews carried out by police. Employers should ideally act swiftly following police investigations to ensure that evidence and witnesses remain available to a workplace investigator. The criminal/non-criminal divide in work-related investigations must be handled skilfully by all involved. It is certainly worth the effort to get the process right – particularly when children and other vulnerable persons come into the equation.

    Can I Keep the Identity of the Complainant Confidential?

    Harriet Witchell - Tuesday, December 23, 2014
    confidentiality
    Can I Keep the Identity of the Complainant Confidential?

    When conducting an investigation into a workplace complaint, a number of variables need to be carefully managed. It is a given that once staff become aware of the investigation, reactions will vary widely. Be prepared for emotional responses to both the alleged incident, and the complaint itself. Further, bear in mind that alleged wrongdoers sometimes not only show hostility during investigations – they might in fact demand that you provide the identity of the complainant. In defence of their position, such participants see it as their right to know immediately who it was that complained. Yet what if the complainant has firmly requested that their identity remain confidential? In such awkward circumstances, you must of course maintain a professional detachment. Whether or not you can or should reveal the identity of the complainant is not a simple matter. We examine some of this complexity. 

    Policies and promises

    It is actually not unusual for a complainant to request that their identity be kept confidential. Before making any hasty promises to that effect, it is important to consider the legal background. Even if you and the employer make every effort to maintain confidentiality, it is quite possible that the complainant’s identity can still be revealed under Freedom of Information (sometimes Right to Information) legislation. It would be advisable to let the complainant know that this is a possibility regardless of your decision. 

    Blowing the whistle
    It’s important to note that in contrast to any FOI accessibility, state and federal whistleblower protection laws will safeguard the complainant’s identity in certain circumstances. This will most often be necessary where the complaint is connected with issues of far-reaching corruption, ethical breaches, or official misconduct. In fact, a failure to protect whistleblowers in such cases can be classed as an offence itself. In either case – FOI or whistleblower issues – the employer hopefully also has well-drafted policies explaining to staff the processes involved in complaint investigations, including the parameters around confidentiality. If this is not the case, you have a duty to carefully examine the complainant’s request for confidentiality before making a call one way or another. 

    Gauging safety and sensitivity

    In certain instances, it will not be fair or warranted to promise confidentiality regarding the complainant’s identity. And it might in fact lead to tainted findings if the accused party is not given a chance to fully defend themselves against the complaint made. If a court later determines that certain findings were made without sufficient attention to procedural fairness, then this evidence could be given minimal weight, or even dismissed. 

    As the principle in Briginshaw sets out, in more serious cases, the balance of probabilities can only be met utilising high-quality, untainted evidence. For this reason, confidentiality undertakings should be given only after careful consideration. Yet sometimes the need to maintain confidentiality regarding the complainant’s identity will be entirely obvious and necessary. Where threats, safety and/or mental health issues form part of the equation for example, confidentiality might well be non-negotiable. By involving the employer in your preliminary information gathering, you will be able to gauge any particular sensitivity within the workplace.   

    A question of motivations 

    There is always the possibility that a complainant has brought the complaint simply on vexatious or false grounds. Workplaces can of course be hotbeds of dislike and grudges, where comments and actions can be misconstrued, distorted through rumour, or even entirely fabricated. Carefully assess if the complainant’s request for anonymity could in any way be impacted by these factors. Your professional judgement will then be required to assess the merit of the request, taking account of all the circumstances.

    Tread with care
    If a complainant requests that their identity remain confidential, ask yourself – what do the employer’s policies indicate? Have you explained potential FOI issues? Are there particular issues around safety and/or sensitivity? And could a vexatious complaint form part of this investigative equation? With good background information from the employer and an overall strategy of investigative transparency – you can face the anonymity request with a clear plan in place.

    Should You PUKE? Deep Listening in Workplace Interviews

    Harriet Witchell - Tuesday, December 02, 2014
    Deep Listening
    Should You PUKE? Deep Listening in Workplace Interviews

    To the untrained, the skills needed to carry out effective interviews in a workplace investigation are simple – find a room, ask questions, then get the answers. Yet as any professional workplace investigator knows, the quantity and quality of information that you glean in any investigative interview can vary significantly depending upon the techniques that are used. The field of interview techniques is vast, and the excellent ‘free recall’ approach is just one of the methods that can be particularly useful to workplace investigators. Forensic psychologist Dr Becky Milne from the University of Portsmouth coined the term PUKE – Pure Unadulterated Knowledge Extraction – to highlight the essence of the free recall approach. As the terminology infers, this is a method of investigative interviewing which in many ways requires little or no questioning from the workplace investigator. Sound odd? Read on to learn more about the benefits of silence in the interview room. 

    Setting the stage
    An effective interview based upon PUKE – or free recall – requires an incredible amount of preparation beforehand. Milne herself states that the end goal of such a technique is essentially the no-question interview, where a witness simply tells their story. To set the scene for such hands-off elicitation of evidence, first ensure that the witness is comfortable and unlikely to be distracted. It’s amazing how thirst, no tissues, nerves or nature’s call can break the flow of a free recall interview setting! Adopt a demeanour that is professional but not overly formal, and explain the purpose for the interview. The information that you provide at this point can be crucial to the extraction of high-quality data and evidence throughout the substance of the interview. For example, summarise your knowledge to date, such as: “From what I understand, there seems to have been some sort of altercation in the lunchroom on Friday.” Then try to convey that there is no rush, and that you are looking forward to hearing their version of events. 

    Total recall 
    Humans like to talk. And professionals like to talk a lot! So the art of free recall or PUKE interviewing involves the workplace investigator actively redirecting that normal talkative energy into deep listening. Having set the scene, you can now take a couple of tacks. One is to keep your body language open and simply ask: “Can you tell me what you recall about the event?” A prequel to this is to first take the witness through a relaxation task, along the lines of “Close your eyes… picture the lunchroom in your mind. See all the details of the room. Recall last Friday, when you went in there. Now let me know what you experienced next” or similar. Once your witness is talking, there are a few excellent PUKE techniques to keep the flow going. Make sure that you maintain open body language as far as possible. You may be taking notes if a recording is not underway  – but do try to maintain non-confrontational eye contact. Interestingly, adult humans can feel uncomfortable simply talking without any prompting questions. Yet the more you can keep the witnesses narrative going without interruption, the better. Remember you want ‘Pure Unadulterated Knowledge Extraction’. Too many inquisitive questions can be just the adulteration that you don’t need! Try some encouraging gestures and nodding if the witness seems to have stalled. A simple “Yes?” or “And then…?” can help to move things along. 

    Should you try PUKE-ing? 
    Absolutely. In fact, adopting a well-constructed free recall interview can be the difference between a useful and a flawed workplace investigation report. Should the matter later go to court, the standard in Briginshaw comes fully into play. That is, the existence of enough low-quality evidence can mean that the balance of probabilities will not be met in some cases. Free recall interviewing reduces the chances of procedural fairness being hampered, in that the PUKEd information flows freely from the witness. It is so easy to have the appearance of bias and pre-judgement enter unwittingly into questioning, particularly if the witness has clammed up, or you have allowed your frustration to show. This might just be via a leading question: “At what time did you hit David in the lunch room?” Or, it might be through an inadvertent show of bias: “Well, three other workers seem to think that’s a bit silly – you?” There certainly is an art to conducting an investigative interview in the workplace context. By applying skills such as the free recall PUKE approach, the quality and consistency of workplace investigation interviews and reports can be vastly elevated.

    Obtain cognitive interview strategies and learn how to PUKE by booking a place on one of our short courses. 2015 dates for our Conducting Workplace Investigations – Advanced and Investigative Interviewing courses are available now.