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!

Addressing Post-Investigation Workplace Culture

Vince Scopelliti - Wednesday, January 23, 2019

Workplace investigations may cause disruption and even animosity in the workplace. An incident occurred and a workplace investigator must attempt to get to the heart of the problem. Once the investigation is over, there will inevitably be fallout in the workplace, which any employer would be well advised to address actively. 

We examine the pitfalls facing managers after a workplace investigation, and the best methods for getting the organisation on track once again.

dealing with the fallout

It is unfortunate that in the aftermath of a workplace investigation, some tension and negative emotions will almost certainly remain. Staff might be left stressed about the findings of the investigation itself and/or the possible ramifications into the future. Yet on the plus side, a workplace investigation has the potential to generate excellent learnings - and to guide the organisation to a fresh start and positive future. 

It is important that managers resist the temptation to 'let sleeping dogs lie' at the conclusion of the investigation. An outcome has been obtained, but how can the lessons learnt be put into practice, relationships repaired and morale improved?

learning from the investigation

Regardless of how discreet a workplace investigator might be, rumours related to the investigation can run riot both during and after the fact. Damage to workplace relationships is a distinct possibility in this environment. 

For example - learning that allegations have been substantiated against a colleague can lead to dismay, disbelief or even counter-attacks against the suspected informant. Management must face the post-investigation issues and ensure that communication with staff is as comprehensive and transparent as possible. 

And even after explanations are provided, a negative workplace culture can linger and should be addressed on an ongoing basis. Regular team meetings, one-on-ones and whole-group discussions should be open and encouraging. The best way to dispel a negative workplace culture is to candidly shine a light on post-investigation issues as and when they arise.

addressing policy shortcomings 

It is important to ensure that issues are not simply aired: policy shortcomings must also be clearly identified and a plan of action put in place. This can have two benefits. Firstly, a plan that reflects the input of staff will foster confidence that grievances have actually been heard and considered by management. And even if not all aspects of the plan are desired by employees, there is at least some certainty about what the future holds. 

communicating with staff

An important aspect of communicating post-investigation is to redefine expectations. For example, if the investigation uncovers inappropriate behaviours that have developed across time, management needs to redefine and effectively explain what the 'new normal' looks like in this area. Where policy shortfalls are found, it is important that management acknowledges this and explains clearly how new behavioural expectations and standards will be put in place. 

Addressing staff concerns and providing support where needed is crucial in the aftermath of a workplace investigation. Don't bury your head in bureaucracy - take action! Let staff know that you are aware of the impacts of the investigation, and that their input matters. As the dust settles, feedback processes should be ongoing, and include staff wherever appropriate. This will be an important time for rebuilding work relationships.

leading an organisation into a positive culture future

In the aftermath of a challenging workplace investigation the future can feel somewhat uncertain. The process may have been unsettling and it is possible that colleagues have been on either side of accusations and recriminations. 

In order to lead the organisation into a positive-culture future, managers should be candid about the past but also hopeful about the organisation's potential. When carried out effectively, workplace investigations can sweep out undesirable cultural elements and provide a fresh start for policies, procedures, ways of working and overall workplace relationships. Leaders need to focus on this capability, and reiterate to staff the positives for the organisation into the future. 

Redefining workplace culture following an investigation can be a challenge. For strategies and advice to help your organisation re-establish strong workplace culture, contact WISE.

Whistleblower Changes - Getting Your Policies Right

Vince Scopelliti - Wednesday, January 16, 2019

With the new changes to whistleblower legislation soon to be debated and enacted, it's essential to assess whether or not your business is compliant. An important part of ensuring compliance with the changes lies in the development of robust policies to protect whistleblowers. The Human Resources function has a central role in preparing staff for the new approach to whistleblowing in the workplace. 

We examine best-practice policy development for the support of whistleblowers in the workplace, including compliance hazards to watch out for as the new legislation takes effect. 

recapping the changes

We have previously examined the architecture of the new regime, due to be enacted in early 2019. The proposed changes to legislation emphasise the need to not only protect workplace whistleblowers when they speak up, but to penalise organisations that fail to provide protection from harm. As part of these new requirements, whistleblower policies must be current, workable and robust. Tokenist policies and procedures that fail to effectively protect whistleblowers are no longer acceptable. 

how can hr guide the process

The most important focus for Human Resources departments will be the development and maintenance of a whistleblower-friendly culture: This is a good news story, the government has recognised the importance of whistleblowers in the fight against corporate wrongdoing and has acted in a positive way to encourage and support this practice. 

In developing quality training, in-house publicity, policies and procedures, HR needs to ensure that they guide staff and management towards a more supportive and knowledgeable stance in relation to whistleblower protections. 

best-practice in policy design - are you compliant? 

In view of the legislative changes due to be delivered, organisations are clearly required to 'get their house in order' when it comes to the development and maintenance of appropriate policy instruments. It is not sufficient for example to have policies that merely provide lip service to the ideal of whistleblower protections. 

There must be clear and user-friendly mechanisms for anonymous reporting and disclosure - even if there is a mere suspicion of corruption, graft, fraud or other foul play in the organisation. 

Importantly, it is no longer necessary to approach a direct supervisor to report an issue - the new legislation reflects a growing understanding that ostracism and discrimination can and does occur if a whistleblower is limited in terms of reporting mechanisms. 

Now is the time to examine your organisation's policies around whistleblower protection, to establish if they comply with the widened scope of the new legislation.

compliance hazards to watch out for

In developing the mechanisms to protect whistleblowers, there are a number of potential pitfalls to be aware of. Firstly, organisations can be liable if they fail to prevent harm to a whistleblower as a result of workplace reprisal. Reporting structures must be watertight in terms of anonymity and discretion. The smallest leak can lead to significant emotional and career harm for those brave enough to blow the whistle. 

A second related hazard is policies that are too general to be of any real use to potential whistleblowers. Policy documents should clearly and distinctly answer the 'what, how, who, when' of whistleblowing; when time is of the essence, it is important that staff can act immediately with their concerns. Further, whistleblower policies and training should explain clearly to all staff the repercussions for any harm caused to a whistleblower due to their disclosure. The key is a strong culture, where encouragement and protection of whistleblowers is a core element of business-as-usual.

how WISE's grapevine hotline can help

WISE is well versed in the changes of the whistleblowing legislation, and has recently published a whitepaper that can help answer all your questions regarding these changes. In addition, we have a whistleblower hotline, known as Grapevine, which has been running since 2016. The service is entirely professional and anonymous, and available 24/7 to concerned whistleblowers.

If you would like to know more or would like a cost estimate to implement our confidential hotline in your workplace, contact WISE now. By including the Grapevine Whistleblower Service in your whistleblower policy framework, your organisation can go a long way to fulfilling its requirements under the new legislation.

Putting the 'Reasonable Person' to the Test

Vince Scopelliti - Wednesday, December 19, 2018

When determining what led to a certain set of events or making an important decision, it is essential for investigators and decision makers to have regard to an objective standard. 

In trying to get to the bottom of a situation or establishing an appropriate course of action, relying on the 'reasonable person' ensures that a broader perspective is taken. 

We look at exactly what this involves and how it can assist in achieving a fair and balanced outcome.  

What is the reasonable person test?

In Australian law, the reasonable person has been characterised as "the man on the Bondi tram" - an average member of society, who has various generalised attributes including risk aversion, sound judgment and a sense of self-preservation, which prevents them from walking blindly into danger. 

This reasonable person standard can be used to put a situation in context and to ensure that the decision maker does not rely on his own, perhaps limited or skewed, perspective. 

In a workplace investigation, taking the reasonable person test into account will assist an investigator in determining whether a respondent's conduct is reasonable or appropriate in the specific circumstances, and whether the complainant is being reasonable in their response or in feeling affronted or aggrieved.

a practical application of the test

One circumstance in which the reasonable person test was applied was in the Fair Work Commission's judgment in CFMEU v MSS Strategic Medical Pty Ltd; MSS Security Pty Ltd. In that case, the worker objected to the discipline imposed on her in relation to a number of performance issues, including: 

  • Breaching safety procedures by climbing on top of a water tank.
  • Slamming a refrigerator door.
  • Unsafely removing a splinter.
  • Not going home when she was unwell at work.
  • Acting inappropriately during an emergency response debrief.
  • Proving an incorrect response in relation to an eye treatment test.
  • Removing statistical information without authority and lying about it.
  • Being disrespectful to a colleague.  

Applying the reasonable person test, Commissioner Gregory found that the issues complained of were trivial, not worthy of discipline, and most importantly a reasonable person would not have responded with the same level of discipline in the same circumstances.

WHAT can we learn from this?

The reasonable person test has significant utility in the workplace context and it is important to remember that its application differs depending on the circumstances. 

For example, the response of a 'reasonable person' in a Chief Surgeon's position to any given situation is likely to differ substantially to that of an Assistant in Nursing. The question is: What would a reasonable Chief Surgeon in those circumstances have done? 

Similarly, higher standards of reasonable behaviour must necessarily be applied to those in more senior roles or with greater levels of responsibility. 

obtaining assistance with investigations 

When allegations of misconduct arise, the possibilities for distress to workers are extensive. 

If you are conducting an investigation, are unsure of what standard to apply, and are hoping to avoid a costly mistake, contact WISE today. We can conduct a full investigation or alternatively support your organisation in the investigation process.    

How to Prepare for a Difficult Conversation

Vince Scopelliti - Wednesday, November 28, 2018

Engaging in a difficult workplace conversation is one of those tasks that most managers and business owners would prefer to avoid. Yet the reality is that from time to time, workplace behaviour or performance will be below par and will need to be addressed. 

The key to conducting a challenging conversation at work that is both professional and productive lies in thorough preparation - the three W's of when, where, and what.

WHen is the best time to have the conversation?

Timing is everything when preparing to discuss a difficult issue. Ask yourself a deceptively simple question - why am I instigating this particular conversation right now? If the answer is that you are annoyed, aggravated or otherwise emotionally charged by an employee's behaviour or performance, then this can often be a bad time to attempt a challenging conversation. 

Difficult conversations that are planned and delivered in a calm and considered manner have a much greater chance of producing desired outcomes. Conversely, conversations that are started impulsively, out of anger or frustration can often lead to later accusations of abuse and unfairness. This is particularly so where no warnings or offers of support are given. 

Putting difficult conversations off indefinitely is not productive either. This may create the impression that the conduct is tolerated or accepted. So, ask yourself - is now the right time?

where should i hold the difficult conversation? 

Much like timing, you should carefully prepare the venue for these challenging work conversations. One golden rule is - not in front of a worker's colleagues. Entering a work station and immediately delivering difficult words can be seen as disrespectful or even as an abuse of power. 

In some workplaces, it might be best to email the worker and request that they come to your office or a designated neutral space. Depending upon the gravity of the topic of discussion, it might also be suggested that the worker bring along a support person. 

When you are anxious about the need to have a difficult conversation, you might prefer to just go for it on the spot and begin, but take a deep breath and ensure that the venue is appropriate.

what is the topic of the difficult conversation?

This again might seem like a question that has a simple answer. It might seem obvious to you that the problem is bad performance, bad behaviour - or both. Such general labels however can appear to be an attack on the person, with no real way for them to reply in a meaningful way. And broad admonitions to 'shape up or ship out' are not only unproductive performance guidance - they can be seen as real threats to a worker's employment and do not meet the requirements of reasonable management action. 

Try to have a basic agenda prepared and distil the 'what' of the discussion into two or three clear and succinct points. 

For example, the conversation might cover a tangible issue such as the three late starts since last Thursday; the 30% dip in sales since June; the four separate reports of disrespectful behaviour in the workplace. Specificity assists in driving a conversation that is fair, transparent and likely to deliver a sustainable outcome. 

Choose words which are neutral and not emotionally laden. Avoid descriptive words such as appalling, dreadful, bad or shocking. Try to be rational, measured and neutral in your language and approach. If you are able to deliver a clear and rational statement of what the employee has failed to do or what they have done wrong and invited a response, you are well on your way to having an open discussion and finding a resolution. 

And lastly - listen! A conversation, by definition, involves two or more people. Don't be tainted by pre-judgement.

DIFFICULT CONVERSATIONS AS PART OF THE PERFORMANCE MANAGEMENT PROCESS 

Humans avoid conflict. We are community-based creatures and prefer to have things just tick along nicely. Yet these difficult conversations are important, having the overall goal of improving performance, getting to the bottom of troubling issues and smoothing the rougher edges of behaviour. 

Acting in anger is inadvisable, as are publicly-heard conversations and sweeping accusations. Clear guidelines for such communication should be set out in the organisation's policies and procedures, with training and resources available to assist. 

Should your difficult conversation form part of a performance management process, make sure that you are adhering to your organisations' relevant policies and procedures. This may include drafting a performance improvement plan if informal performance counselling is not effective. 

Without these structures, organisations are left open to complaints of unfairness or a failure to take reasonable management action. 

Expert help in getting it right

The reality is that difficult conversations are inevitable in the workplace, and it is important that they are conducted well. At WISE, we specialise in the management of workplace behaviour. We can investigate matters of misconduct, resolve conflict through mediation and provide consultation services for effective people governance. Call us at any time to discuss your requirements.  

22 Types of Workplace Bullying Behaviour

Vince Scopelliti - Wednesday, November 21, 2018

Bullying is the scourge of many workplaces. There are few things which destroy office morale, tear apart team cohesion or cause good staff to leave as quickly as victimisation and harassment in the workplace. Interestingly, research has identified 22 different types of bullying conduct which might be encountered in the average workplace. 

We outline these different types of bullying and provide tips on how to avoid situations that cause this type of conflict in the workplace. 

What is the legal definition of bullying?

According to Fair Work Australia, a person is bullied in the workplace if they are repeatedly subjected to unreasonable behaviour by another person or group of people, or if that behaviour creates a risk to the health and safety of the bullied employee. 

Bullying includes teasing, exclusion and unreasonable work demands, but does not include reasonable disciplinary action or control of workflow. 

types of bullying behaviour

Research conducted by the University of Wollongong into 500 Australian employees over a 12-month period identifies the following different types of bullying behaviour: 

  • Withholding information (relevant to a person's employment or role)
  • Humiliation and ridicule
  • Tasking a person with work that is below their level of competence
  • Removing responsibility from a person who has earned it
  • Spreading gossip or rumours 
  • Ignoring or excluding a worker
  • Making personal insults
  • Shouting at or otherwise berating a person
  • Intimidating behaviour
  • Providing hints or signals that a person should resign or abandon their job
  • Reminding a worker constantly of errors or mistakes they have previously made
  • Persistently criticising an employee
  • Ignoring a worker hostile behaviour towards a worker
  • Ignoring a worker's opinion
  • Playing practical jokes or pranks
  • Imposing unreasonable deadlines
  • Making unfounded allegations
  • Excessively monitoring an employee's work
  • Putting pressure on an employee not to claim entitlements such as annual leave, personal leave or carer's leave
  • Teasing an employee
  • Imposing unreasonable workloads
  • Making threats of violence or engaging in actual abuse

These types of conduct, if repeated, generally present themselves in categories of limited indirect bullying, task-related bullying, or occasional bullying, or frequent bullying. Regardless of the cause, bullying results in increased absenteeism as a result of physical and mental health consequences on the worker who is affected. 

The risks of bullying

Apart from the obvious risks of employees resigning or taking extended periods of leave due to bullying, employers should also be aware of the potential for presenteeism - where staff turn up but are too affected by the bullying to effectively perform their work. 

Should employers fail to deal with bullying behaviour, they may be in non-compliance with their duty of care and their obligation to provide a safe and healthy workplace.

What can employers do? 

It is essential for employers to set clear boundaries on what sort of behaviour is and is not acceptable in the workplace. The most effective way to do this is to create clear and direct policies which are well publicised to all staff, ensuring awareness. 

Staff should also be trained in dealing with subtle acts of bullying, which could over time escalate into more serious types of bullying. 

Employers can best combat bullying by fostering a positive workplace culture as a whole, and encouraging strong leadership and communication. This includes giving staff sufficient resources to do their jobs effectively, providing positive feedback and resisting the urge to micromanage. 

WISE Workplace is against workplace bullying and provides training for employers on how to investigate allegations of bullying in the workplace. If your organisation wants to create a workplace environment that is free from discrimination, harassment and misconduct, contact us today! 

Overcoming Unconscious Bias

Vince Scopelliti - Wednesday, November 07, 2018

When conducting investigations or otherwise making determinations in the workplace, it is essential to avoid bias, whether conscious or unconscious. It is equally important to avoid a situation where co-workers believe decisions made in the workplace are biased - whether real or perceived.

What is unconscious bias? 

Unconscious bias may take a number of different forms, including:

  • Preferring or tending to support people who are similar to us (for example, people who attended the same high school, or who share the same ethnic background or sexual preference)
  • 'The beer test', also known as the 'in group' versus the 'out group' - having a bias in favour of people you would enjoy spending time with yourself.
  • The halo effect - where a specific characteristic or attribute of a person dominates impressions formed about that person. For example, if somebody is physically attractive this may increase their inherent like-ability, without merit. 
  • Confirmation bias - effectively, making judgements which support existing, previously held beliefs. 

For investigators, objectivity and drawing reasonable and unbiased conclusions is an essential component of a fair investigation. This doesn't alter the fact that everybody has unconscious biases. In order to remain neutral, investigators should take careful stock of what those biases may be for them specifically and ensure that they do not allow bias to influence their analysis of a party's credibility or their ultimate conclusions.

the effects of bias 

From an investigator's perspective, a failure to be objective may mean that they have subconsciously drawn premature conclusions about the outcome of the investigation. 

A common example involves a situation where a senior executive has been accused of serious wrongdoing, and the investigator understands that the removal or significant disciplining of the executive is likely to result in immediate negative effects for the business. 

Against that background, the investigator may be more likely to conduct the investigation in such a way that it justifies a decision which has already been made - namely that the executive will not be terminated or otherwise harshly disciplined. 

It is incumbent on impartial investigators to seek to uncover all facts that will help them determine the credibility of the parties involved, and assist in reaching a fair conclusion. It is equally important for investigators to remember that all evidence (however unpalatable) uncovered during an investigation must be taken into account in making a final determination, regardless of whether the information supports or contradicts the allegations. 

what is best practice?

Forming an inherent bias is a completely natural human response. It is important to ensure, however, that it does not lead or alter the outcome of an investigation. To this end, strategies for preventing inherent bias include:

  • Scheduling 'interrupters' - these are regular pauses in the process which are designed to force a decision-maker to step back and take an overview of how they have progressed with the investigation, as well as consciously consider whether they are being influenced by bias or not. 
  • Ensuring that the investigator's approach is as transparent as possible, and ideally an investigator should not be required to investigate people with whom they have ties. 

what can employers do?

Employers need to facilitate open and honest communication about the potential of bias affecting a decision-making process. This includes ensuring that all staff who are likely to conduct investigations or make sensitive decisions are aware of the potential impacts of bias, and take steps to avoid it. 

Another important stratagem is to ensure that investigators are not required to conduct investigations involving those with whom they have a prior relationship, to avoid any perception of bias. 

Investigations are an important tool for companies dealing with breaches of policy misconduct. If an employee views a process as fair and unbiased they will be more likely to report concerns. If you think there is an issue in your workplace and are concerned about potential or perceived bias, WISE can conduct independent and unbiased investigations. Contact us today for an obligation-free cost estimate.  

Is Briginshaw Still the Best Way of Solving the Puzzle?

Vince Scopelliti - Wednesday, September 19, 2018

As any HR manager will testify, conducting workplace investigations is one of the most important but vexed aspects of ensuring that an organisation runs smoothly. 

This is particularly the case when the various parties involved in an investigation are putting forward different versions of events - who do you know who to believe? For many years, workplace investigators have employed the Briginshaw test. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1930) 60 CLR 336 is generally regarded as authority for the proposition that if a finding, on the balance of probabilities, is likely to produce grave consequences the evidence should be of high probative value.

But how is this test applied to resolve disputes and make findings in workplace enquiries?

what is it?

The Briginshaw test refers to the civil standard of proof employed in the legal system, specifically in the 1938 divorce case of Briginshaw v Briginshaw. A 'standard of proof' refers to the evidence required by a court or, in the workplace context, an employer or investigator, to make a determination as to the likely truth or otherwise of allegations. 

Although the criminal burden of proof requires evidence to support a finding of 'beyond reasonable doubt', the civil standard only requires an assessment on the balance of probabilities - that is, whether it is more likely than not that one version of events occurred rather than another. 

In Briginshaw, the High Court warned that making a decision on the balance of probabilities does not require a purely mathematical 'weighing up' of the likelihood of one version of events being true over another. Instead, the decision in Briginshaw supports a conclusion that sufficient evidence has been provided if "the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal". In the workplace context, the tribunal determining the matter is the investigator. 

CASE STUDY - SEXUAL HARASSMENT IN CITY HALL

In workplace investigations, individuals are required to respond to allegations, as was the case with the (now former) Lord Mayor of Melbourne. In late 2017, Robert Doyle was accused of having sexually harassed two female councillors by inappropriately touching them. 

In March 2018, an investigation conducted by a Queen's Counsel was finalised, although Mr Doyle had already resigned by this time. Given the seriousness of the allegations and the potential consequences, the investigation relied on the Briginshaw test, and applied a standard whereby the investigator was 'reasonably satisfied' that the specific allegations of sexually inappropriate conduct related to Mr Doyle in his role as Lord Mayor. 

In Mr Doyle's case, the investigators accordingly based their determination on being "satisfied to a level which goes beyond the mere likelihood that something happened" that the allegations could be substantiated. 

The findings included that specific allegations were substantiated. More specifically the investigator made three adverse findings of sexually inappropriate conduct, and a fourth finding that the three matters occurred in the context of the Mayor having consumed substantial amounts of red wine. 

Factors which were taken into account in making this determination, included the likelihood of Mr Doyle having engaged in the behaviour because he had consumed significant amounts of red wine, and his credibility as a witness. The investigation also noted that one of the complainants made contemporaneous complaints and was consistent in her allegations. 

The report stated no findings had been made by a court or tribunal based on the information reported on as part of the investigation, however, if proven the behaviour could constitute sexual harassment within the Victorian Equal Opportunity Act 2010, and gross misconduct under the Local Government Act 1989.

what can we learn?

One difficulty with applying the Briginshaw test in workplace investigations, is that an investigation does not constitute a judicial process. Accordingly, participants give information on a voluntary basis only. 

This inability to compel testimony or information from witnesses may mean that a determination is made on the balance of probabilities - but without having all information available. Indeed, in the absence of a court or the threat of perjury, there is no real compulsion for accurate information to be given in a workplace investigation. Undue reliance on such information could result in an unjust determination. 

Failure to recognise the difference between a court and the role of an investigator can lead to mistakes, and allegations can be left unsubstantiated in circumstances when they may have occurred. In circumstances where the investigator is inexperienced or does not have access to all required information, it may well result in an inequitable outcome, or a situation where a conclusion is made based on partial information or poor facts. 

When a workplace or employee faces allegations, its important for the investigator to ask the relevant questions, examine documents, and analyse all relevant evidence carefully when making conclusions about what occurred. Making findings using the Briginshaw principle and explaining the reasoning behind the outcomes of the investigation can assist employers in considering what further action needs to be taken in light of the findings. 

It is important for employers and investigators to ensure that findings of workplace investigations will withstand the highest level of scrutiny. A higher level of skill will be required from an investigator when circumstantial or uncorroborated evidence is being considered. 

If you require assistance analysing evidence, or conducting an investigation, contact WISE today!  

How 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'.