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.

Managing Relationships in the Workplace

Vince Scopelliti - Wednesday, April 11, 2018

Anyone who has been following the news recently will be aware that scandalous sexual relationships in the workplace have become something of a common theme. 

The stories of Seven West Chief Executive, Tim Worner and his former executive assistant (a relationship which ended in legal action), the forced resignations of senior AFL executives over their relationships with younger staff, and the notorious pregnancy of former Deputy Prime Minister Barnaby Joyce's staffer have all been highly publicised. 

The ironic fallout of Mr Joyce's relationship is the so-called "bonk ban", instituted by Prime Minister Malcolm Turnbull. That ban is intended to prevent all relationships between ministers and their staff, and presumably avoid another scenario such as Mr Joyce's extra-martial affair. 

But is this something which employers can actually impose? Particularly in circumstances where many romantic relationships are forged in the workplace?

can employer prohibit relationships in the workplace?

Although it is virtually unheard of for blanket bans on all relationships to be imposed in any workplace, it is not uncommon for disclosure policies to be introduced. 

The intention of such policies is to require staff members to disclose sexual relationships which could result in a conflict of interest, for example when the relationship is between a supervisor and their subordinate.

Such a code of conduct is designed to manage situations where the interests of the business may be in direct conflict with the romantic or personal interests of the employees. 

Actual conflicts of interest vs perceived conflict of interest

Arguably any relationship in the workplace - not necessarily even a romantic one - could lead to a conflict, particularly when the relationship falls apart or ends badly. This can result in staff feeling unable to work together or believing that they are being victimised by their former lover or friend. 

However, it is important to understand the difference between an actual conflict, and a perceived conflict. 

The Fair Work Commission's decision of Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087 illustrates the difference. In this case, a Westpac bank manager was dismissed from his role due to his conduct arising out of his relationship with one of the bank's employees. 

According to Westpac, Mr Mihalopoulos was dismissed because he was dishonest about his relationship with the worker, breached an apprehended violence order imposed by the worker (after the relationship ended) and inappropriately discussed details of their relationship with his subordinates. 

During the course of the hearing, Mr Mihalopoulos admitted that he had put forward his lover for promotions while they were in a relationship, despite denying their relationship to superiors. 

The Fair Work Commission ultimately determined that employers were entitled to expect that their workers were honest about the nature of relationships that had formed, so that any conflicts of interest arising from these relationships could be managed. 

Further, Mr Mihalopoulos' ongoing and repeated dishonesty about the circumstances of his relationship meant that the business was not in a position to appropriately manage conflicts and therefore manage its own risk. Accordingly, Mr Mihalopoulos' unfair termination application was ultimately dismissed. 

How can relationships be managed in the workplace?

In order to manage the minefield of personal relationships in the workplace, Human Resources departments should ensure that both conflict of interest and disclosure policies are in place, which employees should sign up to as part of their terms of employment. 

Once a disclosure has been made, the conflict of interest policy should provide steps to be taken to minimise ongoing risks to the business. For example, staff might be reassigned to different supervisors to ensure that appropriate disciplinary action can still be taken. 

It is critical not only that these policies exist but that they are clearly communicated to all staff, and that staff are made aware of the potential consequences of failing to adhere to these policies, including redeployment or dismissal. 

If you need assistance in managing workplace relationships at your organisation, contact us. Our team can help formulate policies around disclosure and conflict of interest, and can investigate allegations of misconduct. 

Inside the Fair Work Commission: How it Operates

Vince Scopelliti - Wednesday, March 14, 2018

Most employers and employees are likely have at least some contact with the Fair Work Commission (FWC) during their working lives. 

This might be as simple as obtaining information about award conditions and employee rights, or as contentious as appearing before the FWC in a workplace dispute or unfair dismissal matter.

So how does the Fair Work Commission work?

The basics of the fwc

The FWC is the national workplace relations tribunal. Created by the Federal Government, it is an independent body that oversees a range of employment-related matters.

Its members are independent office holders who are appointed by the Governor-General on the recommendation of the Federal Government. Members work in a panel system, which aims to ensure that matters are heard by members with specific expertise in the relevant area. 

The FWC is not to be confused with the Fair Work Ombudsman, whose role it is to enforce compliance with the Fair Work Act and associated legislation, as well as provide advice to employers and employees on industrial relations matters. Unlike the FWC, the Ombudsman cannot conduct investigations or hearings.

what matters does the fwc deal with?

The FWC has the right to make decisions on a wide range of employment issues, including:

  • Determining minimum wage and working conditions
  • Hearing disputes in relation to unfair dismissals or other disciplinary actions
  • Making decisions in relation to appropriate industrial action
  • Conducting and facilitating alternative resolution methods in relation to general workplace disputes and workplace protections  

When making decisions, the FWC is required to take into account factors such as:

  • The principles of equity and good conscience
  • An assessment of the merits of the case before it
  • Avoiding any type of discrimination in the workplace, whether that be sexual, religious, disability or age based, to name a few

how to get a matter heard before the fwc

In order for a matter to be heard by the FWC, an appropriate form needs to be submitted in accordance with the applicable Fair Work Commission Rules.

In certain circumstances, such as when conducting reviews into awards or wage reviews, the FWC is empowered to launch its own action. 

fairness a key focus of hearings

The FWC is obliged by legislation to facilitate reasonably swift actions, and operate informally - without resorting to complicated legal concepts which could make it difficult for the ordinary worker to participate in proceedings. 

One of the central tenets of the FWC requires that hearings be conducted impartially and fairly. During hearings, the members are required to determine the facts and make decisions based on the information put before them. Ultimately, the main purpose of a hearing is to facilitate dispute resolution between the parties. 

Can the FWC dismiss an application? 

An application may be dismissed outright by the FWC in circumstances where it is:

  • Frivolous or vexatious
  • Contrary to the applicable legislation
  • Doomed to fail
  • Clear that one of the parties has unreasonably failed to attend hearings or comply with orders or directions of the FWC. 

What the FWC can't do

Despite being a quasi-legal body, the FWC is not entitled to provide legal advice, or assistance.

It is also not permitted to act in a partisan fashion by representing any particular political party. It must focus on impartial and objective decision making.

Do you need assistance in dealing with the FWC?

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct across government, education, not-for-profit and private sectors. 

We are proud that none of our decisions have been challenged by the FWC. If you are looking for assistance to navigate the challenging issues of workplace misconduct, we provide investigation services and training - Contact WISE today.