Making Findings in Workplace Investigations

Vince Scopelliti - Wednesday, August 07, 2019

When a workplace investigation is coming to an end, one task can seem deceptively simple - making findings. 

It might seem that because all the information is now available, the investigator can surely just state 'the obvious' in their report. Yet as with most tasks in the investigative process, quality outcomes require much greater consideration of relevant material. Before findings can be made, a thorough analysis of the evidence needs to occur. Findings will need to link clearly with this analysis - and all evidence must be considered.

Issues around organisational policies, plus the correct weight to be given to particular pieces of evidence, are further pieces in the puzzle of investigative findings that need to be addressed.  

analysing the evidence 

Workplace investigators are required to carefully and objectively analyse all available evidence. This includes the evidence that both supports and rebuts a likely finding. For example, if three workers said that it happened but one states that they are not sure, all four pieces of evidence must be analysed and discussed with equal consideration.

It is certainly unacceptable to simply discard a piece of evidence because it does not fit with the majority. As well as not being transparent, experienced investigators know that a small piece of contrary evidence might actually support a bigger finding at another point of the process. 

The analysis of all evidence will also incorporate the consideration of the weight to be attributed to each piece of evidence. This requires an investigator to consider for example the probative weight and value attributed to direct evidence in comparison to hearsay evidence. 

Findings need to be clear and defensible; links from evidence, to analysis, to findings and back again must be logical and well-explained. Essentially, the investigator is asking whether or not the evidence supports, on the balance of probabilities, the findings that are eventually made.  

following the organisation's policies  

As part of making accurate and defensible findings, investigators need to consider and understand the organisation's policies. Logically, in order to make a finding whether or not inappropriate behaviour has occurred, the first step will be an examination of the policy documents. 

Has the conduct in question as alleged breached a policy - and were the policies and procedures clearly understood by all concerned? General state and commonwealth laws will of course also play a part in findings, and in combination with organisational policies, will assist the investigator to mark the perimeters of acceptable behaviour.

weighing the evidence

Making findings can sometimes feel like the completion of a rather large jigsaw puzzle. Evidence is examined and analysed, with pieces being compared to one another for similarities and differences. Investigators need to consider the relevance of each piece of evidence to the allegations and overall investigation, giving more or less weight to some pieces of evidence over others for any number of reasons. 

Sometimes more weight will be given to a piece of evidence because it is for example, clearer, more compelling or better corroborated than other evidence.

remember briginshaw 

The care with which evidence is examined and weighed can have significant consequences for any potential future proceedings.

For serious allegations, employers will need to be able to rely on high-quality evidence from the initial investigation, in order to meet the evidentiary threshold. The standard of proof in all civil matters is 'the balance of probabilities', requiring that parties meet this standard via the evidence that can be marshalled in their favour. 

In matters where serious allegations have been made, the courts - beginning with Briginshaw v Briginshaw - have indicated that the standard of proof itself remains the same in all cases, but in serious matters where the finding is likely to produce grave consequences, the evidence should be of a particularly high probative value in order to meet the mark.

High-quality OUTCOMES

It is important for employers and their investigators to ensure that findings of workplace investigations can withstand the highest level of scrutiny and appeal. Given the complexities surrounding current workplace investigations, a high level of skill is required to ensure report findings are both sound and defensible. To ensure that you are assessing evidence effectively, WISE provides training in conducting workplace investigations

Writing an Investigation Report

Vince Scopelliti - Wednesday, July 31, 2019

To say that a workplace investigation report is an important document is certainly something of an understatement. Following the investigation, the report will be relied upon for all manner of significant organisational decisions, tasks and action. 

As a result, it is essential that workplace investigators create a professional, transparent and unbiased document.

ONE REPORT, MANY PURPOSES

When the investigation is complete and the report is handed to the employer, this document will provide a focal point for immediate action.

Employers will rely upon the report for appropriate disciplinary action, and as a means of establishing compliance where required. The investigation report will often form the basis of policy changes and will need to be clear and persuasive in this regard. 

Perhaps most importantly, the report will underpin the defence of any future claims. How the investigation has been carried out and the weight to be given to findings will be on display now and into the future. 

A sound methodology 

It is insufficient to simply cobble together some aspects of the investigation and present a pleasant-looking report. The report should be transparent; provide a clear step-by-step explanation of the investigation; state the allegations; make reference to the information and documents obtained and considered and the process of analysing and weighting the evidence - among many other elements. 

Readers will be looking to see how the interview process was carried out, if parties were treated with equal respect, plus whether findings were made with objectivity and on the evidence available.

The report should clearly reflect the author's thinking regarding whether allegations are substantiated, unsubstantiated or if a lack of evidence exists. 

A strong methodology will ensure the highest quality of evidence obtained - which can be of great significance when serious claims have been made, as explained in the Briginshaw v Briginshaw case. 

the right report format 

There is a tried-and-true approach to setting out a professional workplace investigation report. The first item is the executive summary which - as it sounds - provides a high-level overview of the process and outcomes. The methodology of the investigation is explained, demonstrating an underpinning coherence to the investigation process. Importantly, the civil standard of proof - 'on the balance of probabilities' - is defined and explained to ensure there is an understanding across a broad audience. The allegations, particulars and evidence are then set out in a professional and objective manner. 

A most challenging aspect of the report is describing and explaining the findings made. In essence, the investigator is explaining why one person's version of events or piece of evidence is to be preferred over another. Again, this must be done thoroughly and with transparency. 

The investigator then sets out any other issues that have arisen through the investigation, such as other issues identified in the workplace, the illness of a hoped-for witness or difficulties accessing documents, just as examples. Finally, the report sets out the final findings and where requested or appropriate makes recommendations in a clear and unbiased manner.

top tips for report writing 

When approaching the task of writing a report, a useful phrase is 'know your audience'. In most cases it will be the employer who has sole access to the investigation report. Yet the reality remains that a court could examine the report document at any future stage. 

In any event, aim to be short and concise at all times with clear and unbiased descriptions. Sometimes the investigation report will need to reflect the technical realities of the workplace, which might include convoluted descriptions or layered processes. 

In these circumstances it can be a good idea to create a glossary of terms or a similar explanatory system that allows for inclusion of and explanation of complex information, while not interrupting the flow of the document. Keep to a logical sequence. Having done the good work of a high-quality investigation, it can be all undermined if the employer is left with a report that is confusing or unhelpful. 

In writing up findings, it is essential that investigators 'follow the evidence'. For example, if evidence A plus evidence B led you to finding W then clearly state this. You cannot simply 'find W' without explaining your reasoning.

The task of pulling together all relevant material into a cohesive report at the conclusion of an investigation can be a challenging prospect. Utilising an external investigator can ensure a report is written in an unbiased, objective and timely manner. To appoint an expert to your organisation's investigation, contact WISE.

Uncovering the Steps of an Effective Investigation Process

Vince Scopelliti - Wednesday, June 26, 2019

For many employers, a workplace investigation process can appear quite challenging to navigate. Questions around the actual subject of the investigation, and who is best qualified to carry out this important task, can immediately arise.

The investigation process itself is characterised by a number of important processes that are designed to reduce the risk of negative perceptions and/or potential legal pitfalls at a later date.

We outline proven strategies for understanding and instigating a high-quality investigation process.

By using these, employers have the capability to implement a fair, thorough and professional investigation, from initial complaint management through to the presentation of an accurate and accessible report. 

Following a clear path

When a complaint arises in the workplace, employers might be tempted to launch straight into the fray and 'get to the bottom of things'. Yet such a tactic can be problematic on a number of levels.

First, compliance with existing policies and procedures concerning investigations is crucial, to ensure procedural fairness throughout the process. It can take time to confer with HR, re-read existing internal guides and to make a plan to investigate the complaint in an appropriate manner. 

Each workplace, employee and complaint is unique and employers are reminded to carefully assess their policy compliance obligations before starting down the investigative path.

Secondly, it is vital to ensure that procedural fairness is built into the entire investigative process. The way in which complaints are dealt with must be transparent and fair for all concerned. Results from an investigation process should be reliable. This is derived from robust interview techniques and document searches that are fair and transparent in nature.

A sound investigative process will also ensure the finality of outcomes, leaving no room for doubt. Complainants, witnesses and employers understandably desire a process where finality and clarity are achieved. 

A step-by-step investigative process

Let's take a look at the key steps of an effective investigation. You can find out more about each of these steps in the investigation process in our upcoming series of in-depth articles.

1. Receiving a complaint

It can be confronting for employers when required to deal with workplace complaints. Bullying, harassment, fraud, sexual harassment and child abuse are just some of the serious issues that can arise in workplace contexts. It is crucial that complaints are taken seriously and that actions are carried out in a measured fashion.

Employers should ensure that internal policies and procedures regarding the receipt of complaints are closely followed. The receipt of complaints involving what is known as 'reportable conduct' will additionally activate compulsory reporting regimes. This means that for certain types of alleged misconduct, employers are legally required to report to prescribed external bodies.

2. Establishing terms of reference

At the beginning of the investigative process, the investigator works with the client to define and limit the Terms of Reference (ToR). It is not appropriate to engage in broad-sweeping analyses of all circumstances that might possibly surround the complaint. The investigator and client work with the initial information, to confine the ToR to the essence of the complaint(s) made. An investigation can become too unwieldy if the boundaries of the ToR are vague, hazy or too broad. 

Perhaps most importantly, unclear ToRs can lead to accusations of uncertainty and unfairness for those parties affected. It can make sense to engage an external investigator in those circumstances where complaints, cross allegations and emotions are heightened within an organisation. Often, an objective outside person can provide the clarity needed to get the ToR right.

3. Letters of notification and allegation

Once thorough scoping has taken place, letters of notification need to be made to respondent, complainant and all relevant witnesses. This provides an important opportunity to communicate the nature of the investigation process, as well as the individual's involvement. The letter of notification describes what is being investigated; who the investigator is; the right to request an interview support person; as well as the need for all parties involved in the investigation to maintain confidentiality. 

With a slightly different purpose, the letter of allegations provides a clear description of the complaints that have been made against the respondent. This important piece of correspondence includes the particulars of allegations, any request for supporting documents, pending interview details, the option of having a support person present, as well as the importance of maintaining confidentiality at all times. All correspondence within the investigation should be clear, comprehensive and accessible by the relevant parties.

4. Interviewing techniques

When conducting an interview, the investigator must constantly consider how to maintain transparency and objectivity at all times. Yet, it is also necessary to build a suitable level of rapport with the complainant, the respondent and with witnesses.

One useful tool for running the interview process appropriately is the adoption of an interview framework.

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. With a useful acronym, the PEACE model helps the interviewer to step consistently through the process.

PLANNING: Examine what planning and preparation needs to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed.

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.

Active listening is also a useful tool for interviewers conducting a workplace investigation. This involves giving close and undivided attention to the interviewee, plus being able to paraphrase accurately what has been said. Wherever possible 'open' questions should be asked - those that allow the person to respond in a narrative manner, based upon their recollections. Examples include 'How would you describe the work relationship between Fred and Frank?'.

5. Report writing

One of the most important aspects of a workplace investigation is the final written report. It is relied upon for ensuring compliance with recommendations, detailing any disciplinary actions and can form a defence against future claims. In accordance with Briginshaw, findings made with objectivity and upon the evidence available, are more likely to meet the evidentiary threshold in serious matters. Investigators should clearly determine if allegations are substantiated, unsubstantiated or if evidence is lacking. Being concise, following a logical sequence and ensuring that 'findings follow the evidence' are all important ways of creating a professional, sound final report.

6. Making findings

One of the last and most crucial tasks for the investigator is making findings. It can seem deceptively simple. This evidence was produced; this is the logical finding. Yet there is more to the equation than this.

It is important to present evidence contrary to your findings and to explain why this was less compelling than the preferred evidence. A clear and objective explanation is needed and can certainly be difficult to word at times. Findings should tie back to the analysis and should define which allegations have or have not been substantiated.

An indication of the weighting applied will be necessary, as will the relevance of the evidence in the context of the particular allegations. It should also be clear in the document that reasoning has taken place in the context of the organisation's policies - including whether or not one or more has been breached.

7. The role of the Fair Work Commission

The Fair Work Commission (FWC) provides an opportunity for workers and employers to take their grievances beyond the level of the workplace. The FWC considers an array of work-related issues every day, delivering determinations on matters such as bullying, employment award issues and unfair dismissal claims. Unlike courts, tribunal-type bodies such as the FWC are built to deliver fair, fast and accessible justice.

Yet it is important to remember that all matters will be dealt with in a robust and objective manner according to law. In keeping with the rule of evidence, the FWC will examine final workplace reports closely to determine if sound analysis and findings have been made; for this reason, a defensible final report is essential.

Obtaining professional guidance 

Getting the process of an investigation right from start to finish is critical for the effective and lasting resolution of workplace grievances.

With over 25 years' experience in investigating and managing misconduct, WISE has put together a toolkit with 20 high quality templates and an investigation guide for even the most inexperienced manager to follow.

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