How to Write a Robust Workplace Investigation Report

Vince Scopelliti - Wednesday, September 05, 2018

At the conclusion of a workplace investigation, the investigator has the challenging task of pulling together all relevant material into a cohesive report. The style of report that is chosen will be firmly linked to the purpose of the investigation, keeping in mind the requirements of the readers and users of the document. 

Investigators need to consider closely the manner in which findings are made and how best to share findings with key parties in a clear and appropriate manner. The outcome of a workplace investigation and report might well be that mediation and/or other processes are indicated as next steps. The tasks of drafting, writing and communicating a workplace investigation report are all crucial parts of the process.

whAT IS THE PURPOSE OF THE REPORT?

Any investigation report must provide a clear and unbiased summary of the process and outcomes of an investigation. This is a document that leaves nothing to guesswork when it comes to describing the background, methodology, parties involved, timeline of events, policies and findings that have arisen across the entire timespan of the investigative process. 

It can be tempting for an organisation to decide during an investigation not to obtain a report, and to keep any outcomes 'informal'. However, if there are adverse outcomes for one or more parties, a transparent report will be the best way to prevent any future claims of unfair process. 

the style of report

No two investigation reports will have exactly the same style, the author, allegations, organisation type and specific circumstances all lend a unique nature to a report. Yet some common themes can be found in all high-quality investigations. 

Firstly, the report should be written in professional plain English. A variety of readers should be able to interpret the report - without recourse to a thesaurus! In-house descriptors and acronyms can be used, but these must first be defined or form part of a comprehensive glossary. Clear contents and a logical progression from index and executive summary through to scope, methodology, evidence, discussion, findings and recommendations will also assist any audience to understand the document. 

making findings

All findings made in an investigation report must be supported by the facts. If the facts are established, the investigator needs to determine what policy and/or law have been breached by the conduct. Once these elements are established, they must be communicated effectively and clearly in the written report. 

As with the report's overall style, findings should be logical. The report cannot simply list evidence then move to findings. Careful and reasoned explanation is needed of both the process of analysis and the deliberations undertaken by the investigator. 

This includes explaining what and why certain weighting was given to particular parts of the evidence, or why an interviewee might have been persuasive or unpersuasive on a particular point. Making clear findings is often harder than it might at first appear. Similarly, clearly reflecting the author's final thoughts in a clear and concise manner, making the report user friendly for all readers, is a challenging yet essential part of making defensible findings. 

Informing Parties

One issue to consider closely is how the outcomes of the investigation, contained in the report, will be communicated to the participants. Given that witnesses have provided evidence in confidence, their privacy needs to be protected. 

Other questions which need to be considered when sharing the outcome of an investigation with parties include:

  • Could safety be in issue by the release of particular data?
  • Is the presence of a support person necessary?
  • Should the report be presented to all parties together at a meeting? 

While a report must be clear and comprehensive in all of the matters that formed part of the process, consideration should be given to the use, delivery and description of information provided during the workplace investigation. 

Moving on from a workplace investigation

A common recommendation is for parties involved in a workplace investigation to participate in mediation in relation to one or more issues. This is often the case where emotions have stalled effective interactions at work, or where a 'he said - she said' situation makes it impossible to make a clear finding on issues of fact.

It is important to establish if all issues warrant mediation, or if only a few can realistically be dealt with in this way. Who should conduct the mediation is an interesting topic in itself - and one for future discussion. Effective mediation can create resolution of the issues and, ideally, improve workplace relationships. Yet if such discussions fall through, it is important that the report itself will withstand any future scrutiny or review.

If you need assistance with conducting an investigation, contact WISE now or enrol in our popular and effective 'Conducting Workplace Investigations' training course.

Legal Issues When Conducting Workplace Interviews

Vince Scopelliti - Wednesday, August 29, 2018

When a workplace investigation has to be conducted, the most valuable information will generally be obtained through interviewing the staff involved in the incident and any witnesses. This information will play a critical role in determining what has happened or who or what was responsible. 

In order to obtain relevant and reliable information from the parties involved, good communication skills, an eye for detail and the ability to think on your feet is required. However, it is equally important to remember your legal obligations when interviewing staff.

legal issues

In conducting an interview process, key legal issues include:

  • The creation of statements 
    When an interview is conducted, a statement recording the comments made during the interview must be prepared and provided to the interviewee for review and, if the contents of the statement are agreed upon, signature. 
  • Audio recordings
    The laws on the creation of audio recordings differ in each Australian state. Generally speaking, if a person is advised that they are being recorded and they do not explicitly object, it is acceptable to continue with an audio recording. It is best practice to seek their explicit approval once recording has commenced. It is important to bear in mind that a transcript of the recording must be made available to the interviewee upon request. 
  • Support person
    Anybody involved in a workplace investigation, but especially the person against whom allegations have been made, must have the opportunity to have a support person of their choice present during each step of the investigative process, particularly during the interview. Witnesses have to be informed of this right in advance, in order to provide them with the opportunity to find a suitable support person.   

Procedural fairness and privacy

Perhaps the most important aspect of any workplace interview is ensuring that the process is conducted in accordance with the rules of procedural fairness. This includes:

  • The complainant and the respondent have the opportunity to provide their entire version of events and to have a support person present. 
  • The respondent is advised of the particulars of the allegations against them, so that they can respond in detail. 
  • The respondent is advised of their rights in relation to the investigative process.
  • Proceedings are not delayed unnecessarily.
  • The respondent has sufficient time to prepare for the interview process. Best practice is to allow at least 48 hours' notice but preferably more, depending on the complexity of the particulars. 
  • All relevant witnesses are interviewed.
  • Exculpatory and inculpatory evidence is taken into account.
  • All evidence is considered in an unbiased and impartial manner. 
  • No finding of guilt or otherwise is made until after all parties have had the opportunity to participate in the interview process and had the opportunity to respond to the allegations against them. 

All parties involved in the investigation are entitled to privacy. Witnesses who have disclosed information in confidence, may be intimidated by the fear of victimisation or backlash. This means that information divulged during the interview process is to be kept strictly confidential, unless it is absolutely necessary for the resolution of the dispute that it be shared beyond the immediate investigative team.

tips for successfully conducting an interview

In addition to taking the above steps, inexperienced interviewers may wish to consider obtaining specific legal advice, depending on the situation and the allegations which have been made. 

The interview process should always be undertaken from the perspective that only information which is collected fairly and decisions which are made in an unbiased manner will support disciplinary or administrative action against any employee. 

If you dismiss an employee or take disciplinary action against them without affording procedural fairness and establishing the relevant facts, it is possible that Fair Work Australia or other relevant tribunals may find the action was harsh, unjust or unreasonable in the circumstances. 

An investigation may be costly and time consuming, however the consequences of not conducting one may be even greater. If you need assistance in conducting investigations and undertaking investigative interviewing, contact WISE Workplace today, or purchase our 'Investigative Interviewing Book'.   

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.

Identifying a Toxic Worker

Vince Scopelliti - Wednesday, May 09, 2018

Getting the mix of personalities in the workplace right can be extremely challenging. 

Creating a harmonious workplace is difficult at the best of times, and if a toxic personality is thrown into the equation, it can disturb the equilibrium of the workplace. 

Let's take a look at how you can identify and deal with a toxic worker in your organisation. 

what are the traits of a toxic worker?

Essentially, a toxic employee is one who puts their own needs above those of their co-workers, and negatively influences those around them. 

There is no central factor that necessarily determines whether somebody is a toxic worker. But according to a paper published by Harvard Business School, 'key' toxic personality traits include: 

  • Strong adherence to rules, causing inflexibility; 
  • Emphasis on achieving a greater output than other workers, leading to rivalry and friction;
  • Worse qualitative output of work compared with other colleagues; 
  • Overrated understanding of their own skills;
  • Self-centredness and a lack of self-awareness regarding their impact on others. 

 The paper also identified a number of other potential signs of a toxic personality:

  • Perfectionism - those who are hyper-sensitive to criticism; 
  • Emotionally over reactive "drama queens";
  • Sociopathic, remorseless behaviour;
  • Paranoia and a failure to trust others;
  • Gossiping and manipulating;
  • Passive aggression

impact of toxic personalities in the workplace

Having a worker with a combination of these personality traits can lead to significant issues for an organisation, including a loss of clients, worsening reputation, poor morale or all the above. 

Toxic workers can cause an increase in bullying and harassment complaints being received and unsafe work practices, which may result in physical or mental harm to other employees. 

This type of employee can also be "contagious". An unhappy or unpleasant co-worker can spark dissatisfaction amongst employees, and result in high staff turnover. 

sO can you avoid a toxic worker?

It can be extremely difficult to recognise some of these personality traits in an interview process. 

For this reason, it's important for human resources teams to not only have training in how to identify toxic staff, but also in how to deal with their performance if they have been hired. The emphasis during reasonable performance management steps need to focus not only on the employee's output, but also on the conduct issues observed. 

One of the strongest defences against toxic workers is a strong culture that focuses on employee wellbeing, openness and transparency and the avoidance of competition between staff. 

Conducting regular staff surveys and business "health checks" by touching base with your workers, finding out what motivates them and ensuring that they are satisfied in their relationships with co-workers can also keep your organisation protected from the influences of toxic employees. 

how wise can help

One solution to spotting a problem in your workplace is a cultural survey. If your organisation has a concern about a toxic worker, or staff are making complaints, we recommend conducting one of these surveys. If you would like assistance with this, contact WISE today!  

Why Forced Mediations are Doomed to Fail

Vince Scopelliti - Wednesday, May 02, 2018

Mediation can offer effective resolution of workplace disputes. It's a fair process that allows parties to be heard and encourages them to find a resolution both sides are satisfied with. 

Mediation should only be used when parties are willing to discuss their differences. In the case of a bullying complaint, an investigation is required in the first instance, to determine whether there is an active grievance or complaint afoot, causing one of the parties to feel unsafe in the workplace. 

Forcing an unwilling employee to the mediation table can lead to resentment and even legal action. 

How does mediation work?

In mediation, a third party facilitates an open discussion between two parties to help settle a dispute rather than going to court. Both sides are encouraged to reach an acceptable compromise. For employers, the idea is to resolve a dispute quickly and economically. 

while there are pros and cons for mediation, one positive is that a verdict is never 'handed down' but rather, the parties come to the decision together. It's an empowering process, giving the parties input into the outcome. 

The advantage of mediation is that disputes can be reexamined and reframed in order to find the appropriate solution. It's a flexible process that can be tailored to the needs of the players involved. 

A key aspect though, is that all parties need to act in good faith, and be open to discussion and negotiation. If mediation is forced upon an employee, they are likely to feel that the process isn't fair, leading to resentment, a difficult negotiation and disagreement with the outcome. 

Can an employer compel an employee to attend mediation?

While an employer can enforce mediation, and take disciplinary action if an employee fails to attend, there must be grounds to do so, and these grounds must be established. Without grounds, an employer may be left open to a claim of adverse action or victimisation. 

It's important in these situations, however, to carefully consider the reasons why the employee may not wish to be part of mediation. For example, they may fear a power imbalance or bias against them or may feel unsafe in their workplace, due to a bullying complaint which has not been addressed. 

Outlining the process: the role of the mediator

A mediator is appointed to facilitate the process. The mediator does not provide legal advice, nor do they offer legal counsel. A neutral third party, the mediator's role is not to make a decision, but to encourage the parties to come to their own, mutually agreed-upon resolution. 

In most cases, the mediator will make an opening statement and then give each party the opportunity to do the same. During this time, each party will share why they have agreed to the mediation and what they would like to achieve from it. This is not the time to air grievances. 

Just as a meeting is kept on track with an agenda, it's best to have a mediation meeting framework in place to ensure all steps are taken care of and all issues are dealt with accordingly. The agenda should be clearly spelt out and followed. The mediator will help determine what should and shouldn't be discussed and it's the mediator's role to keep the discussion on track. 

During the mediation, private sessions may also be helpful so parties can refresh and refuel. The mediator will meet with the individual parties one at a time to discuss how they are feeling. This process may be repeated if necessary. 

Once each agenda item has been addressed and discussed, a decision will be mutually agreed upon. The mediator will review, finalise and capture the agreement in writing. 

Approaching mediation

Asking an employee to mediate their grievance is a reasonable request - after all, restoring the peace between employees is important for business, and ensuring employees relations are happy and healthy is paramount. 

However, mediation will only work if the parties truly want to mediate. This means they want to come to an agreement together, and there's no possible reason why one party may be afraid or uncomfortable during the process. 

Forced mediation is not likely to be effective, as it is one-sided. 

When expert assistance is required

If the parties cannot find agreement on all agenda items, or there are behavioural concerns, it may be necessary to explore possible resolution options with an experienced external workplace mediator. 

If you need some support in how to conduct a mediation, need to engage a mediator, or would like to resolve a workplace conflict, contact WISE

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. 

How to Improve Workplace Harmony

Vince Scopelliti - Wednesday, March 28, 2018

Maintaining workplace harmony should be a key focus of every organisation. Conflict in the workplace can lead to behaviours such as bullying, harassment and discrimination. Staff can lack motivation, fail to work as a team and be generally unhappy. 

So how can employers and staff deal with conflict, and encourage staff to work together to promote harmony in the workplace? 

Common causes of workplace conflict

Organisational or operational changes can cause employees stress and discomfort. These can include changes in management, procedures, duties or position descriptions, redundancies, staff changes and particularly a restructure. The increased stress and pressure on employees may be reflected by an increase in complaints received in the workplace.

The following factors also increase the likelihood of disharmony in the office environment.

  • A lack of communication, whether between co-workers or between management and staff;
  • A failure to share a vision, or a misunderstanding of what the business' goals or team's core focus is;
  • Mistrust or suspicion;
  • Insufficient leadership - or at the other extreme, micromanagement. 

how to prevent DISHARMONY turning the workplace toxic

It is important for employers to tackle any potential cultural issues straightaway - if tensions are left to fester, small, easily solved problems are likely to become much harder to deal with. 

Tips to avoid conflict and disharmony include:

  • Clearly communicating a zero tolerance attitude towards bullying, victimisation, discrimination and other negative behaviours;
  • Introducing clear workplace policies setting out expected standards of behaviour from all employees, and ensuring that these are well-communicated, easily accessible and complied with by everybody in the organisation, including senior management;
  •  Applying change management principles to any necessary changes to operational, procedural or structural matters;
  • Encouraging 'buy-in' from employees by creating common goals for all staff in the organisation. This should motivate everybody to work together;
  • Making your organisation a great place to work and an employer of choice - in particular by encouraging staff to have a healthy work-life balance;
  • Holding employees accountable for their work and rewarding them appropriately for good performance;
  • Training managers in conflict resolution, so they can step in early and deal with issues;
  • Hiring new staff based on their cultural fit and their compatibility with organisational values. 

Employees also have a role to play in creating workplace harmony, by doing their jobs to the best of their ability, showing commitment to their work, raising issues when they arise and adhering to workplace policies and procedures.  

what is the role of mediation?

When conflicts do arise, mediation can be an extremely useful tool. It can facilitate a discussion between employees who are in disagreement and find common ground or a compromise to deal with ongoing issues. 

However, mediation should not be used as a band-aid measure to try and resolve ongoing conflicts or when an active grievance is afoot. In this case, prevention by creating a harmonious workplace culture is truly the best cure.

when is an investigation required?

In some cases, workplace conflict and disharmony cannot be dealt with by a mediation process and an investigation is required in the first instance. 

This is particularly appropriate in circumstances where one party has been accused of misconduct or inappropriate behaviour, and the accused is hoping to clear their name. Similarly, if a workplace policy has been breached and there are potential legal or industrial ramifications, an employer is obliged to conduct a thorough investigation. 

Conflict management and workplace mediation can help avoid the disruption and disharmony which workplace conflicts can produce. Should your workplace require assistance in managing workplace disharmony, WISE Workplace provides mediation services and investigation services. Contact us today for an obligation-free discussion and cost estimate.  

Improving Your Investigative Interviewing Skills

Vince Scopelliti - Wednesday, March 21, 2018

To any outsider, the job of investigative interviewing seems fairly straightforward - questions are asked and then answers are provided. Yet as we know, the job of interviewing parties in the course of a workplace investigation can be anything but simple. 

For example, the investigative interviewer must ensure procedural fairness at every step along the investigative pathway. And this raises other questions, such as can the venue of the interview impact upon fairness? Why is building rapport a key element of investigative interviews? Should I audio record?

With challenges and variables scattered throughout most investigations, it is necessary for interviewers to be skilled in the core techniques required for fair and productive outcomes. A good workplace investigator never stops refining the skills of the trade.

THE interviewing basics

Procedural fairness requires an investigative interviewer to approach the task with transparency, objectivity and care. For example, any notable bias in the way questions are asked could taint the results of the investigation. It is also essential for the interviewer to explain clearly to the witness the 'what, why and how' of the interview process before questioning begins.

Building rapport is an essential skill when conducting an effective investigative interview. Rapport is the connection created to ensure an understanding of a person's thoughts and feelings, so that effective communication can take place. 

An interviewer might offer a choice of seating, pour some water, ask about the weather outside - just as examples. The right words and actions will be gleaned from the individual characteristics of the witness. Such simple and polite techniques at the commencement of the interview can go a long way towards allaying fears and creating a more comfortable space for questioning. 

Similarly, choosing the right venue can have a surprising effect on the overall atmosphere and quality of proceedings. Questions one might ask oneself as an interviewer include: Is it appropriate to speak with this particular witness on-site? Will we have sufficient privacy? Is there a basic level of comfort? An inappropriate venue for the investigative interview can cause unnecessary distractions and discomfort; neither of which assist in producing high-quality evidence. 

to audio record the interview or not? 

One key issue to consider is this - will you record the interview or take a statement, or simply take notes? An audio recording has obvious advantages, such as providing a word-by-word account of the interview. It is, however, vital to research any particular legal requirements within your state or territory about the need to obtain consent from the interviewee to record the conversation. An audio recording of the investigative interview should demonstrate a strong and professional structure to the interview, as well as a fair approach taken to the witness. When and how to record an investigative interview can be a tricky variable to consider, and at times might require expert advice.

the peace-ful investigative interview

In the 1990's, a selection of British law enforcement officers came together in order to find a better approach to investigative interviews. They identified the need for a strong but flexible alternative to current questioning techniques. The PEACE model of interviewing was born, and it has proven invaluable to investigative interviewers. 

Five key concepts make up the acronym:

P - preparation and planning - Do you have a good list of potential questions and a thorough understanding of the scope of the investigation?

E - engage and explain - Have you built rapport, explained all procedural issues to the interviewee and provided an opportunity for questions?

A - account, clarify and challenge - Have you allowed the witness to answer responses fully, without bias or suggestion? Have you sought to clarify concerns and challenged any discrepancies in a professional manner?

C - closure - Did the witness have an opportunity to ask, clarify and add further to the interview where appropriate? And if so, have you explained any next steps and thanked them for their time?

E - evaluation - In listening to or reading back the interview, how would you evaluate the substance, quality and fairness of the process? 

The PEACE model is a great tool for mapping out key aspects of an investigative interview, thus ensuring that nothing is missed in your witness statements. 

suggestibility and free recall

Psychologists consider that every person will have a particular level of suggestibility, which can change across their lifespan. Suggestibility is the extent to which we can be persuaded to 'fill in' our memory through the suggestions of another. Children for example are particularly vulnerable to such prompting in an interview setting. 

Psychological concepts such as free recall demonstrate that memory can be affected by factors such as the timing and positioning of details as they are laid down as memories. Investigative interviewers need to take great care not to ask questions in a way that might sway or alter the facts as provided. 

Conducting investigative interviews is almost always a challenge. For more tips on how to effectively undertake interviews, purchase our book Investigative Interviewing: A Guide for Workplace Investigators, or alternatively, we provide on-site training in investigative interviewing, which can be tailored to the needs of your organisation.   

Stand By Me: The Role of the Support Person

Vince Scopelliti - Wednesday, February 28, 2018

For an employee who is on the receiving end of disciplinary action, performance management or a workplace investigation, it is an upsetting, and even a potentially traumatic experience. 

Every employee involved in such a process is entitled to have a support person present during any meetings or interviews. 

A failure to afford an employee a support person can result in the process being deemed a breach of procedural fairness, and the outcome may be declared invalid upon review.

what is the role of a support person?

The role of the support person in any interview or meeting is to provide moral and emotional support, ensure that the process is fair, and to assist with communication - they are not required, or permitted, to act as an advocate, put forward a version of events or make an argument on behalf of the employee.

While support persons are entitled to ask some questions about the process, it is crucial that they don't respond or answer questions in terms of the substance of the matter, on behalf of the employee. 

A person engaged as a translator cannot generally act as a support person at the same time.

CAN AN EMPLOYER DENY A REQUEST FOR A SPECIFIC SUPPORT PERSON?

Only in certain exceptional circumstances the employer can refuse to have a specific person sit in as a support person. 

These circumstances include where the requested support person:

  • Holds a more senior role in the organisation than the person who is conducting the interview - thereby creating a risk of undue influence or pressure by the support person on the interviewer;
  • Could be disruptive to the process or has their own agenda (such as a former employee or somebody who is known to be on bad terms with management or the executive);
  • Is involved with the subject matter of the investigation or may be witness to some of the events. A person who is involved in the investigation in some way cannot be seen to be neutral and it is not desirable for a potential witness to have access to the respondent's evidence. 

Although employers may be able to object to a specific support person who has been requested, they are required to advise employees of their right to select a different person.

tHE ATTITUDE OF THE FAIR WORK COMMISSION

When determining cases of unfair dismissal, one of the factors the Fair Work Commission considers is whether the employee was unreasonably denied the right to have a support person present during any interviews. 

Best practice for employers

To ensure best practice in disciplinary or investigative processes, the following steps should be undertaken:

  • Employees must be advised of their right to select a support person for any relevant meeting
  • Employees must have the opportunity for the meeting to be organised, within reason, at a time when the support person is available
  • The support person must receive a clear explanation of their role - that is, to provide moral support only. 
  • The employer must take into account any additional considerations that could apply, such as those involved in an Enterprise Agreement or similar negotiated agreement with the employee. 

Offering employees a support person to attend any meetings and interviews related to disciplinary action, performance management, or workplace investigation with them, is crucial to the fair outcome of these processes. 

For more detailed information on conducting interviews, you can purchase a copy of our book Investigative Interviewing: A Guide for Workplace Investigators. If you're conducting a workplace investigation and need assistance, contact WISE Workplace today.