Rules of Evidence in Workplace Investigations

Vince Scopelliti - Wednesday, December 04, 2019

Although workplace investigations are not expected to be conducted in the same way as a police investigation, it is essential to keep in mind the principles of evidence which might apply. This is particularly important against a backdrop where many workplace investigations end up in the Fair Work Commission or otherwise in a contentious, litigated setting.

We examine the rules of evidence which should be followed to improve the chances of successfully defending against a claim.    

What are the rules of evidence as a whole? 

The most important rule for workplace investigations is whether the evidence to be presented is relevant to the matters at issue. As the decision of Robinson v Goodman [2013] FAC 893 demonstrates, this is determined by considering whether the evidence is of such relevance as to be "important or of consequence". In other words, it should "affect the probability of the existence, or non-existence, of a fact in issue".

The principle of hearsay evidence is also important to workplace investigations, as is the introduction of tendency evidence. 

Hearsay relates to information obtained via rumour or through a second party. In a courtroom setting, information is deemed to be hearsay in virtually any circumstance where it has not been directly conveyed to the person testifying about it. In the investigatory setting, any hearsay evidence can be damaging to the weight placed on that evidence or testimony as a whole.

Tendency evidence considers whether past behaviour should be used to prove the current matters in question. When determining whether to rely on tendency evidence, it is important to weigh up the potential advantage against the possibility of causing damage to an accused by suggesting that their past behaviour dictates their future behaviour. 

why do the rules of evidence matter 

Any workplace investigation should be conducted having regard to the possibility that the matter could end up in the Fair Work Commission or a court. In the event that this occurs, any investigation which has clearly failed to observe basic rules of evidence may result in an adverse finding against the employer. 

If an investigation relies on evidence that is ultimately inadmissible, then the employer might find itself in a position where it cannot back up its defence in any way which the commission or a court will take into account. 

An additional factor to be taken into account is the Briginshaw principle.  This notes that, depending on the seriousness of any given allegation, the strength of the evidence required to establish proof may change. This means that a tribunal must be satisfied, on the balance of probabilities, that the information before it and on which it is being asked to decide is based on clear, cogent and strict evidence. 

The requirement for a matter to be determined on the balance of probabilities is reaffirmed in section 140 of the Evidence Act 1995 (Cth).

The importance of following the rules of evidence in workplace investigations cannot be understated.  All investigators should consider these rules when collecting and analysing evidence that arises from a workplace matter.

WISE investigators are experts in the field, and with years of experience in undertaking even the most complex workplace investigations, are able to ensure your investigation is fair and legally sound. If your organisation needs assistance with a workplace investigation, WISE provides full as well as supported investigation services.

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.

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.

The Privacy Act: Implications for Workplace Investigators

Vince Scopelliti - Wednesday, April 24, 2019

There can be many questions, fears and insecurities that arise in the course of a workplace investigation. Experienced investigators are often asked by witnesses and other staff to divulge what has been said and by whom. This is unsurprising; after all, for one or more people their reputation and/or job could be on the line as a result of accusations made. 

Workplace investigators must take care when dealing with the information gleaned from their enquiries. The Privacy Act 1988 creates a legal structure that controls how personal information can be obtained and used. From initial enquiries through to the final report, workplace investigators must carefully weigh the privacy implications of their work.

privacy and workplace investigations

The Privacy Act 1988 places firm legal boundaries around how businesses and government agencies are to deal with the personal information of individuals, including employees. Most employers will have the capacity under the Act to deal with employee information as they see fit - providing it is for a lawful purpose. 

Workplace investigators are bound by the privacy legislation, just as any person or organisation who deals with private information is. This can lead to considerable challenges within the course of the investigation, such as having private information that might or might not be of interest to another party or witness within the investigation. It is only in very unusual circumstances that such disclosures could be lawfully made. Overall, consent will not have been given for release to another party; consent is crucial in all such situations.

personal information and the final report

The client is of course the employer in workplace investigations, and it is to the employer that briefings and reports must be directed. It is not unusual for investigators to be bombarded by employees with requests for the release of information, statements, witness accounts and the like, that have been elicited during the investigation.

The reason for the requests is certainly understandable - people will be anxious to know what has been said, by whom and how this could potentially affect their employment. Yet legally this is not information that the workplace investigator is at liberty to provide, unless express consent has been given. 

Personal information at the disposal of the workplace investigator must be returned to the employer, generally in the form of the investigator's final report. Complainants, respondents and witnesses are certainly afforded a summary of the report and findings. Yet actual statements and transcripts involving personal information are certainly protected under the Act from most curious stakeholders.   

Privacy and future proceedings

It makes sense to keep a tight hold on information released during the investigation. Considering that investigative reports are often later scrutinised for their evidentiary worth, it is important for workplace investigators to keep in mind the ramifications of privacy principles upon their work. 

For example, statements that are tainted by knowledge of what another witness has said could certainly be inadmissible or weighted lightly in later proceedings. A loose investigative structure can also see one party privy to more information than another, raising inevitable questions of procedural fairness. 

Navigating a workplace investigation is certainly a matter of juggling many moving parts. Keeping a firm reign on the use of personal information during the investigation is one task that must remain at the forefront of all activities and decisions. For assistance on ways to ensure compliance with the Privacy Act 1988 during an investigation, get in touch with WISE.

When to Use an External Investigator

Vince Scopelliti - Wednesday, April 03, 2019

Using in-house resources to sort out organisational problems certainly makes a lot of sense. HR departments tend to be well equipped to receive and manage internal complaints, facilitating solutions as they go. 

But while sourcing external assistance can seem unnecessary, there are certain serious workplace situations where calling in specialist investigative expertise will be the preferable solution.  

Internal or external: making the decision

When an event in the workplace requires investigation, questions arise that require timely answers. One of these will be - who should carry out the investigative process? Less impactful events such as personal differences, disputes or general rumours might naturally fall to an internal workplace investigator. After all, they will have inside knowledge of the culture and dynamics that possibly led to these ripples and allegations. 

Yet when alleged events are more serious in nature and/or the scope of the problem is potentially vast, engaging the expertise of a specialist external workplace investigator can not only relieve the internal workload. It can also mean the difference between smooth resolution of a workplace situation - or the unfortunate escalation of a matter into the costly adversarial realm. The more serious the allegation, the more important it can be to secure professional advice.    

workplace investigations - pitfalls to avoid

Whether internal or external, workplace investigators work hard to carry out investigations fairly and efficiently. In a well-run investigation, all involved will be treated in a professional and objective manner, with no overt bias towards one party or another. 

Yet unfortunately perceived bias can be just as damaging to the final collated report. One pitfall with using an internal investigator is that a perception might arise that one party was favoured over another, due to position, workplace friendship, or longevity within the organisation - just as examples. 

Similarly, if an internal workplace investigation is rushed or not provided with sufficient resources, outcomes can be similarly tarnished. It can be tempting to keep things in-house in order to save money. Yet in the long run, the overall quality of the investigative report can be tarnished, leading to the high likelihood of expensive actions by the aggrieved party.  

the expert investigator 

A further consideration when deciding whether to engage an internal or external investigator is the level of expertise. Invariably, internal investigators have other tasks and roles that take up their time in organisations. 

This is not the case for external workplace investigators. As trained professionals they have the in-depth specialist experience and up-to-date knowledge that is necessary for a fair and impartial investigation. For example, maintaining confidentiality within and across the workplace is a challenging task. An external investigator has the ability to coordinate the process in such a way as to preserve the integrity and confidentiality of all discussions.

The investigator's capability is particularly important when it comes to both the finality and reliability of the investigative report. Should an appeal of the decision eventuate, commissions, tribunals and courts will expect to see a level of thoroughness and objective detail that demonstrates adherence to the principles of procedural fairness throughout. 

In the 2017 matter of Anthony King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017], the Fair Work Commission certainly made it clear that imperfect investigations will be viewed dimly, stating: 'some investigation reports seen by the Commission in this jurisdiction fail to get to the heart of such a situation and rarely undertake a true balancing of the evidence seen by them'. 

Support and expertise

Yet it need not be a black-and-white choice between an internal or external workplace investigator. It is possible to access a supported investigation service. In this framework, the organisation gains assistance from an expert regarding the more complex aspects of the process, while carrying out other tasks internally. 

WISE Workplace is able to offer both full and supported investigation services. If you are concerned about making an error or a lack of knowledge in conducting your own investigation, or would like to train your staff in conducting workplace investigations, contact WISE today.  

Learning HR Lessons from Real World Cases

Vince Scopelliti - Wednesday, January 30, 2019

In recent years, there have been a number of cases heard in the Fair Work Commission and the courts which have resulted in important practical outcomes and learnings for employers, particularly in the area of workplace bullying. 

Let's take a look at some of these seminal cases.

volunteers can pursue bullying claims

The decision in Ryan v Returned & Services League of Australia (Queensland Branch) [2018] FWC 761 demonstrates that volunteers who are unpaid are entitled to pursue claims of bullying in the workplace. 

In this case, there was some dispute as to whether RSL Queensland, for which Mr Ryan volunteered, was a 'person conducting a business or undertaking' and a 'constitutionally covered business', within the meaning set out in the Work Health and Safety Act 2011

The commission ultimately determined that Mr Ryan was clearly a 'worker' within the meaning of the WHS Act, and held that the Pension Advocacy and Welfare Services (for which Mr Ryan worked, and which was under the aegis of RSL Queensland), was a constitutionally covered business at all relevant times when Mr Ryan was performing volunteer work. On this basis, it was found that Mr Ryan had sufficient standing to pursue a bullying complaint against RSL Queensland.

employer's failure to consider mental health

In Wearne v State of Victoria [2017] VSC 25, the Supreme Court of Victoria determined that an employer could be in breach of its duty to prevent injury to employees in circumstances where an employee complained of bullying and the employer failed to act on the complaints. 

Of particular significance for the court was the fact that the employee had advised her employer some years before she ceased work that she was suffering from occupational stress, was 'anxious about any ongoing contact' with former colleagues and experienced stress as a result. 

In particular, the court concluded that the worker's employers had 'lost sight of the goal of creating a workplace environment that was safe for the [worker's] mental state and minimised the risk of psychiatric injury'

Recommendation of workplace culture improvement plan

The Fair Work Commission determined in Sheikh v Civil Aviation Safety Authority & Ors [2016] FWC 7039 that while the specific circumstances of the employee's workplace did not support a finding of workplace bullying, there was sufficient evidence to suggest that some sort of remedial or consequential action was required. 

Accordingly, the employer was to design and implement a workplace culture improvement plan, which should focus on interpersonal relationship training, the introduction of a facilitated workshop regarding acceptable norms of behaviour, and the development of an appropriate and agreed work allocation protocol.

age discrimination 

A fairly significant compensatory award of $31,420 was awarded to the complainant in the NSW decision of McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273, following his allegations that his employment had been terminated when he was aged 62, because the worker had 'a bad back, bad hearing and was too old'.   

Although the company denied the worker's allegations, the NSW Civil & Administrative Tribunal (NCAT) found that the evidence suggested that it was 'more probable than not' that the worker was treated less favourably than he would have been if he had been younger.

reasonable management actions vs workplace bullying

In Ms SB [2014] FWC 2104, the Fair Work Commission considered what factors should be taken into account when determining whether an action was bullying or 'reasonable management behaviour'. 

An objective assessment must be made having regard to the circumstances and knowledge of those involved at the time, including what led to the management action, what occurred while it was in progress and what happened subsequently. Having regard to these factors, the Commission determined on this occasion that there was not sufficient evidence to support a finding of workplace bullying. 

It can be difficult for employers to interpret the findings and application of decisions made by the Fair Work Commission and various courts throughout Australia. If you require assistance in conducting workplace investigations, and making sound defensible findings, contact WISE today. 

Why Employers Can't Afford to Ignore Procedural Fairness

Vince Scopelliti - Wednesday, August 01, 2018

It is important for employers to keep procedural fairness top of mind when conducting workplace investigations or taking disciplinary action.

Failing to do so can result in terminations being deemed unfair, as the recent Fair Work Commission decision of Nicholas Jarmain v Linfox Armaguard Pty Ltd [2018] FWC 3255 (14 June 2018) shows. 

background of the case 

Linfox Armaguard dismissed casual employee Nicholas Jarmain in October 2017 for serious misconduct. While the Fair Work Commission found the termination was justified, it determined that Mr Jarmain had been unfairly dismissed due to insufficient procedural fairness.

Mr Jarmain was dismissed after a client complained that he was "overly engaged in interaction and discussion" and generally inappropriate with staff members and customers of the client.

In response to the allegations, Mr Jarmain was asked to undergo an interview with a security officer and a union support person present. Explanations for his behaviour were sought (and his answers recorded) during the interview, and Mr Jarmain was then suspended from duty.

At a meeting three weeks later, Mr Jarmain was given further opportunity to explain the circumstances giving rise to the complaints against him. However, as his preferred union delegate was injured and unable to attend, the employer substituted their own preferred union official for that meeting.

The employer terminated Mr Jarmain's casual employment the next day, citing wilful and deliberate breaches of safety and security procedures. 

Breaches of procedural fairness

In the interest of procedural fairness, Mr Jarmain's employer should have advised him what claims were being investigated before asking him to participate in a recorded interview.

This was considered to be particularly egregious given that the employer is a big company with sufficient access to HR professionals. HR could (and indeed should) have been relied upon to ensure that Mr Jarmain was afforded procedural fairness when facing disciplinary action.

While the employer's reasons for dismissing Mr Jarmain were "sound, defensible and well-founded", especially given the job involves loaded weapons, the Commission concluded that the flaws in procedure, such as failing to provide any formal warnings or reprimands, were significant. 

The Commission determined that Mr Jarmain had not been given sufficient notification of the circumstances surrounding the complaints against him, or indeed the events giving rise to the complaints - and that he had effectively been ambushed, without sufficient information to defend himself against the claims. 

This meant that both Mr Jarmain's interview and ultimate dismissal were contrary to the requirements of procedural fairness.

Additional failures included the employer selecting the support person assisting Mr Jarmain in the second interview (as opposed to permitting the employee to pick his support person). By making such a decision it was akin to removing Mr Jarmain's right to have a support person present at all.

Further, the employer should not have suspended Mr Jarmain without pay.

the final decision

Ultimately, given the nature of the industry in which Mr Jarmain was employed, Commissioner Cambridge declined to order reinstatement of the employment but ordered compensation payments to the tune of $8,592.

This case demonstrates that having a valid reason to dismiss is only one factor that is considered in unfair dismissal claims. The Commission will not hesitate to award judgments in favour of the applicant where the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair, WISE provides full and supported investigation services, as well as training.  

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHy are workplace investigations necessary?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

what does an investigation involve?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

so, who should investigate?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

Should an external or internal investigator be appointed?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

Risks of an investigation being conducted incorrectly

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

Lesson for employers

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.