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. 

Ruling on Anonymous Social Posts a Warning for Employees

Vince Scopelliti - Wednesday, August 21, 2019

In the highly-anticipated decision of Comcare v Banerji, the High Court has found it is not unconstitutional for the federal government to restrict the rights of public servants to express their political views in a public forum. 

So what does this decision mean for employees, freedom of political communication and the right to free speech? 

The facts of the matter

The respondent in Comcare v Banerji [2019] HCA 23, Ms Michaela Banerji, was employed by the Department of Immigration and Citizenship until September 2013. At this time, her employment was terminated for having breached the Australian Public Service's social media policy and code of conduct. 

Specifically, it was claimed that Ms Banerji had 'tweeted' several thousand posts under an anonymous handle. Those posts commented explicitly on the federal government; Australian immigration policy; ministers; opposition spokespeople and her specific department. 

Following her dismissal, Ms Banerji pursued a number of legal proceedings, claiming that her termination had breached her implied right to freedom of political communication. 

Ms Banerji was successful in her argument before the Administrative Appeals Tribunal, which held that the anonymity of her Twitter account meant that she could not be identified as a public servant and the policy of her employer had been applied too strictly. 

However, this decision of the AAT was ultimately overturned on appeal to the High Court.

the findings of the high court

In determining in favour of Ms Banerji's employer, the High Court explicitly found that, although the Australian Constitution provides a freedom of political communication, this 'is not a personal right of free speech'.

It was further concluded that, anonymous or not, the tweets threatened the 'integrity and reputation' of the Australian Public Service. Moreover, it was of relevance that Ms Banerji was a public servant, which would become topical if her anonymity was ever threatened.  

the wider implications of the case

As stated in the Administrative Appeals Tribunal's decision, placing such significant restrictions on - anonymous - public servants could be considered akin to dealing with 'thoughtcrime'. This means that society is imposing rules and punishments on people who have 'done nothing' other than have differing opinions. 

Ultimately, the decision means that employees, whether in the public or private spheres must carefully consider expressing opinions, be they political or otherwise, which differ from those of their employer. It is clearly unwise to post controversial personal opinions under a readily identifiable name, which could in turn identify and embarrass a worker's employer and lead to a conclusion that the opinions have caused damage to an employer's reputation for example. However, of some concern is the decision of the High Court in applying the Australian Public Service's standard and code of conduct requirements to anonymous tweets. 

This decision is particularly topical given the controversy over the recent legal proceedings involving Rugby Australia and Israel Folau, a devout Christian, 'cut and pasted' text on social media about homosexuality and hell. Given Folau's high profile as a rugby player, his employer Rugby Australia, terminated his employment. Folau is pursuing legal proceedings, arguing that his religious freedom has been interfered with as a result of his termination. 

Although the nature of the defence differs from that put forward by Ms Banerji, the ultimate concept is the same: private individuals are putting forward commentary on personal beliefs and opinions, but on a public forum, and are being penalised by losing their employment as a result. Rugby Australia maintains that Folau's breaches of conduct occurred repeatedly, and that he had been warned on several prior occasions about posting such commentary on social media. 

While it is not yet known what the outcome will be for Folau, it is clear that these cases have wide-ranging implications for organisations and employees. 

WISE Workplace is highly experienced at conducting investigations and the surrounding complexities of contemporary legal issues. If your organisation holds concerns regarding inappropriate social media use, WISE can conduct investigations and analysis of electronic evidence to establish defensible findings.

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.

Social Media Misconduct: The Need for a Fair Investigation

Vince Scopelliti - Wednesday, June 19, 2019

An ever-increasing key dilemma for employers in the modern age is how to deal with the misconduct by staff through their use of social media platforms. 

The list of potentially offending conduct is lengthy. For example, staff might call in sick but then post details of their activities on social media. Employees could post inappropriate, defamatory or confidential information on their accounts. One high-profile example is the sacking of a PayPal executive in 2014 who publicly ranted about his co-workers on Twitter, or more recently the well publicised matter regarding Israel Folau and his instagram post. 

Given such a potential minefield, we look at what employers should do to ensure a fair investigation relating to allegations of social media misconduct.

procedural fairness key in australian case

The matter of Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186 highlights the importance of ensuring that an investigation is thorough and involves appropriate levels of procedural fairness. This requirement applies in social media misconduct, as in all other cases.

Mr Singh was dismissed from his role as a baggage handler in October 2015. Although the reasons for his dismissal were not made immediately clear to him, after proceedings had been issued in the Fair Work Commission, the employer alleged that Mr Singh had breached its social media policy by publicly supporting ISIS and known associates. 

It was also claimed that he had made radicalised comments against the Australian Government. Of particular relevance and concern was Mr Singh's status as an airline employee. 

Before he was terminated, Mr Singh was advised that there had been complaints involving his social media posts and that there would be an investigation. However, Commissioner Hunt found no evidence that Mr Singh was told he could bring a support person to the investigation meetings. Further, although the termination related to a number of posts on social media, Commissioner Hunt accepted that not all posts were shown to Mr Singh for his response. 

Factors in the decision

Relevant factors taken into account by the Commission in determining whether conduct occurring away from the workplace can invoke disciplinary action, include conduct that is: 

  • Likely to cause serious damage to the employer/employee relationship; or
  • Damaging to the employer's interests; or
  • Incompatible with the employee's duty as an employee. 

Before the Commission, Mr Singh's evidence was to the effect that he was against ISIS and radical Islam, and that his comments had been sarcastic. 

the outcome of the case

It was concluded that the employer had not spent sufficient time investigating whether or not Mr Singh was in fact opposed to ISIS. Commissioner Hunt accepted, that if there had been sufficient evidence to demonstrate that Mr Singh had a radicalised perspective on Islam, there would have been too great a risk for an employee with these views to continue working at the airport. 

However, it was determined that in the circumstances the employer should have gone to greater effort to investigate Mr Singh's Facebook newsfeed. If that had occurred, it was considered that it would have been clear that Mr Singh's claimed sarcasm was the true motivation behind his postings. 

Accordingly, the Commission determined that, if a proper investigation had taken place, it would have been apparent that Mr Singh was not radicalised. Therefore, Mr Singh's dismissal was deemed harsh, unjust and unreasonable. 

Instead of terminating his employment, it was considered that an appropriate disciplinary action commensurate with the misconduct would have been reiterating the social media policy of the employer and insisting that Mr Singh refrain from posting incendiary material.

need help in ensuring a fair investigation? 

This case demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action. In unfair dismissal claims, the Commission will not hesitate to award judgments in favour of the applicant where it is determined that the employment was terminated in a manner that is not procedurally fair.

If you would like to ensure your investigation process is fair and enforceable, WISE Workplace provides investigation services, as well as 'conducting workplace investigations' training. 

Performance Management vs Bullying: Where's the Line?

Vince Scopelliti - Wednesday, June 12, 2019

Employers often face a quandary in dealing with underperformers, and whether to place them onto a performance management program. 

It's essential that any such move can always be considered to be 'reasonable management action' in response to inappropriate behaviours or inadequate or unsatisfactory performance, and not simply a way of bullying an employee. 

Let's take a look at the difference between performance management and bullying, and how employers can make sure they are not crossing the line.  

what is performance management?

At some point, every employer will need to manage an underperforming staff member. In practice, this means taking steps to deal with poor conduct, including:

  • Non-compliance with policies/procedures and other workplace requirements
  • Inappropriate, disruptive or generally bad behaviour
  • Unsatisfactory performance of work tasks

The necessary steps may range from informal performance management, where the inappropriate or unsatisfactory behaviour is brought to the staff member's attention, through to a more formal process such as the implementation of a performance improvement plan.

is it reasonable management action or is it bullying?

Employers are not prohibited from dealing with staff that they consider are underperforming. However, care needs to be taken to avoid bullying a staff member, within the meaning of s789FD (1) of the Fair Work Act 2009 (Cth)

That legislation defines bullying as a situation where 'an individual... or group of individuals... repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and... that behaviour creates a risk to health and safety'.

The same legislation explicitly excludes 'reasonable management action carried out in a reasonable manner' from the bullying definition.

But what is reasonable management action? Although not an exhaustive list, the following situations constitute appropriate management action within the meaning of the legislation:

  • Scheduling regular meetings to discuss ongoing performance issues
  • Disciplinary an employee for identified misconduct
  • Undertaking an investigation into a complaint
  • Modifying a worker's duties as required by operational reasons or the employee's health.

When making an objective assessment of the reasonableness of the management action, it is important to consider what caused the action, what circumstances were  in train while the action was taken, and what occurred as a result. 

It is also important to note that there is no 'retrospective gold standard'. Just because an employer may, in hindsight, have been able to improve on the way they undertook the action, does not necessarily mean that it was not appropriate reasonable action at the time. 

Moreover, although the staff member's perception of a negative management action is likely to tend towards it being unreasonable, the standard is objectiveness and this is not determined by one or a group of employees' views.

lesson from real-world cases

Unsurprisingly, the question of what constitutes reasonable management action is one which is frequently litigated in court. 

In the decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, it was determined that a manager's day-to-day instructions were not enough to constitute 'management action'.

In National Australia Bank Limited v KRDV [2012] FCA 543, the court considered that although the employee was spoken to about her performance in both a formal Action Operation Management meeting and in a 'casual chat', the two meetings were not sufficiently clear as performance-related discussions to constitute reasonable management action.

how to ensure compliance with reasonable management action

Practical tips for compliance include: 

  • Ensuring that formal and documented performance management processes occur at all relevant times, and avoiding informal or impromptu 'chats' on performance
  • Reviewing policies and procedures regularly, in relation to bullying and also appropriate disciplinary action
  • Advising managers to always provide clear and direct instructions, which cannot be seen as ambiguous
  • Documenting and providing formal written warnings when inappropriate behaviour is called out, to demonstrate that management involvement has been required. 

Performance management is part of maintaining a successful business. However, if you receive complaints regarding your performance management approach, and want to ensure that you are complying with best practice and acting in a fair and reasonable manner, contact WISE for assistance and advice today.

Legal Professional Privilege and Workplace Investigations

Vince Scopelliti - Wednesday, April 10, 2019

When a workplace investigation is required, there may occasionally be good reason to seek legal professional privilege regarding the findings. This is particularly the case in matters that may require criminal investigation, such as fraud, theft or sexual harassment. 

So, is it sufficient to engage a law firm when undertaking workplace investigation if you wish to attract legal professional privilege? We take a look at the what privilege means, and its role in investigations.

what exactly is legal professional privilege? 

The concept of legal professional privilege means that communications between an employer and their engaged lawyers are confidential and need not be disclosed, for example to another party or in a court, if the communications have been created for the 'dominant' purpose of providing legal advice or in anticipation of legal proceedings.  

What is the significance of legal professional privilege? 

In many circumstances, an employer's inner workings and thought processes may be something that is best kept private. Ultimately, the key purpose of legal professional privilege is to permit employers and other parties, such as external investigations, to freely discuss information with their solicitors in order to obtain legal advice, without being concerned that the material will form evidence in legal proceedings. 

Employers may wish to maintain privilege and keep parts of certain documents confidential if, for example, there are issues with disclosing identities of complainants or witnesses, or permitting potentially inflammatory or commercially sensitive information being disseminated through the workplace and beyond. 

how can workplace investigations attract legal professional privilege? 

If an organisation wishes to obtain privilege over communications, it is not sufficient simply to engage a law firm to undertake or oversee the workplace investigation. The law firm's engagement must be able to be demonstrated as being for the dominant purpose of preparing for imminent legal proceedings, or providing advice in relation to those proceedings.

This was demonstrated in the decision of Gaynor King [2018] FWC 6006, in which Commissioner Wilson determined that the engagement of law firm Minter Ellison to conduct an investigation, under the auspices of providing legal advice, was really an investigation into workplace conduct within the employer council's policies and procedures. Accordingly, it was determined that legal professional privilege did not exist in those circumstances.      

loss of privilege

Legal professional privilege can be easily lost or waived. This can occur if a party explicitly states that they waive privilege, or if they provide a document to another party which would ordinarily attract privilege. It is important to note that it is generally irrelevant if the information was intentionally or accidentally provided - once that has occurred, it is hard to argue that the privilege should be maintained. Further, if a party attempts to rely on the contents of a document, it is rare that privilege will be successfully kept over the document. 

This was the case in the decision of Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517, in which the employer attempted to rely on the contents of an investigation report but did not wish to disclose it. It was held that relying on a document without providing access to Mr Bartolo was unfair, and the document had to be produced. 

WISE Workplace is highly experienced across all steps of the investigation process, including legal professional privilege implications. If you are seeking a robust, defendable investigation, contact us today!      

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.  

The Legality of Recording Conversations

Vince Scopelliti - Wednesday, March 20, 2019

How many times have you wished you had a record of a conversation? Perhaps you would have liked evidence of what was said, or you would have appreciated being able to play a conversation back for training purposes. 

Whatever the reason, we examine the legality of recording conversations in Australia. 

when can you record a conversation?

The legality of recording a conversation in Australia depends entirely on the jurisdiction. Each state and territory has separate legislation which sets out the law on surveillance and listening devices. 

Residents of Victoria, Queensland and the Northern Territory may be concerned to learn that there is no legislation prohibiting the recording of a private conversation (as long as the person recording is involved in that conversation). By contrast, recording conversations without permission of all parties is prohibited in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. 

Regardless of the jurisdiction, there is a prohibition on persons who are not party to a conversation, secretly recording or using a device to listen in on a conversation (with the exception of law enforcement). The obvious example here would be listening or recording devices being covertly installed in hotel rooms. 

what about recordings in the workplace? 

Conversations in the workplace come under the same legislation, which means whether or not it is legal to make a recording depends on jurisdiction. Covert recordings are against the law in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. But employers in Victoria, Queensland and the Northern Territory are permitted to record termination conversations, for example, without advising the employee that they are doing so. This recording can then be used to demonstrate that the employee was afforded due process prior to their termination. 

It is also legal for an employee in these states to record a conversation they are having with a colleague. However, it is important to note that, even though the recording of such a conversation may not necessarily be a criminal act, it is certainly frowned upon in the workplace. 

This was highlighted in the Fair Work Commission decision of Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878

In that decision, Mr Gadzikwa took a period of unpaid sick leave arising from a mental health condition. After a certain time, that leave was deemed to be unauthorised, and he was ultimately dismissed for non-performance of duties. 

During the course of the hearings, Mr Gadzikwa (who worked in Victoria) admitted that he had developed a practice of secretly recording conversations with his colleagues. While it is relevant that this practice did not form part of the employer's motivation in terminating Mr Gadzikwa's employment, the employer did submit that this was an inappropriate practice, regardless of Mr Gadzikwa's contention that he recorded conversations 'to protect himself'. 

Deputy President Colman criticised Mr Gadzikwa for his actions in doing so, noting that secret recordings are 'unfair to those who are being secretly recorded'. Ultimately, in the absence of any decent justification for recording the conversations, Deputy President Colman determined that Mr Gadzikwa's actions in doing so effectively diluted points in his favour which would have suggested that he had been inappropriately terminated.

covert recordings inadvisable at work

The warning contained in this decision is clear: everybody in the workplace, whether employer or employee, should be aware that even if it is not illegal to secretly record colleagues, bosses, or staff members, it is considered inappropriate, and may have negative ramifications in any dismissal or similar proceedings. If an individual has formed the view that a recording of a conversation is appropriate and necessary, the other participants should be advised in advance that the conversation is to be recorded, so that any objections can be voiced. 

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct and the surrounding legal issues. If you are looking for assistance to help navigate the challenging and complex issues of workplace misconduct, contact WISE today.

When to Suspend an Employee During an Investigation

Vince Scopelliti - Wednesday, February 20, 2019

One of the most difficult aspects of a workplace investigation is the moment when the investigator or employer realises the immediate suspension of an employee is required. 

We examine the warning signs that a suspension might be necessary, as well as the best way to handle this complex eventuality.

The what and why of suspension

Most investigations will follow a relatively regular pattern. The workplace investigator gathers information, a report is submitted and disciplinary action may or may not be taken by the employer. However, occasionally events can arise, requiring that an employee be suspended immediately before or during the investigation. Two questions arise - when and how should suspensions occur?

Suspension involves a compulsory period of absence from the workplace for the employee in question. Suspension will include full pay and any other entitlements accruing to the employee. This is in contrast to an employee being 'stood down' - where the employer has no further work available and payment is not required.

gauging the necessity of suspension 

So when is it warranted to suspend an employee during the course of a workplace investigation? Of course employers must do their best to prevent a workplace difficultly from snowballing in the first place. Preventative measures and policies will hopefully reduce the likelihood of misconduct occurring. 

Yet at times, a suspension becomes necessary before or during the course of an investigation. The types of serious misconduct that can require suspension include suspected fraud, assault or theft. A suspension will also be necessary if there is a serious possibility that the employee might tamper with evidence, or disrupt the investigative process. 

A 'suspicion' of misconduct cannot be a mere whispered rumour or gut feel. In essence, a prima facie case (a reasonable assumption on available evidence) should exist to demonstrate that the employee in question has in all likelihood engaged in a serious act of misconduct. 

The rules of procedural fairness dictate that the investigation be even-handed and impartial throughout - with no recommendations of any kind being made by an investigator until the compilation and presentation of the investigative report. 

However, sometimes allegations are particularly serious and time is of the essence. A risk assessment is required, as well as communication between the investigator and the employer regarding their immediately concerns.

is a suspension a 'legal and reasonable' direction?

In the case of Avenia v Railway Transport and Health Fund [2017], the Federal Court held that employers can issue 'legal and reasonable directions' to staff, with such directions including suspensions. Dr Avenia was the subject of an investigation into allegations of misconduct and was suspended on full pay, pending the investigation. 

The court found that this action by the employer was legal and reasonable due to the nature of the allegations and did not constitute, as Dr Avenia claimed, a case of unlawful termination.

balancing considerations

Suspension during a workplace investigation can certainly create unique challenges. The suspended party might become quite uncooperative and other staff might make assumptions about this person while providing evidence. A clear description of the suspension process must be provided within the investigative report, and a communication strategy put in place by the employer. 

Procedural fairness is the centrepiece of workplace investigations. However, employee welfare, health and safety are also essential considerations. Thorough documentation should be kept of any suspensions, with workplace investigators taking detailed evidence from the employer and others regarding this complex situation.

If an employee engages in misconduct and the employer suspends them before the disciplinary investigation, a fair procedure must be followed. If you need assistance on how to investigate and/or how to respond to inappropriate workplace behaviour, contact WISE today!