Interview Techniques for Workplace Investigations

Vince Scopelliti - Wednesday, July 24, 2019

In any workplace investigation, there will be multiple competing factors for an investigator to consider. One core issue is developing the appropriate interview strategy.

Investigative interviewing requires careful consideration of the purpose of the investigation, and exactly who will be interviewed. There is also the question of tone - ensuring that the interview remains cordial and does not begin to resemble an interrogation. 

At WISE Workplace, we have a wealth of experience in investigative interviewing, including the best practice interview techniques to bring to the task.  

the purpose of the investigative interview

The purpose of the investigative interview is to glean relevant information about a workplace allegation in a manner that is professional and fair. 

In devising a good investigation strategy, the interviewer will carefully select who is to be interviewed during the process. 

People with first-hand knowledge are the key - not those who simply heard a rumour or were told something second-hand. Such statements constitute hearsay, and can reduce the weight of the evidence and the overall value of the investigation if relied upon. It is important for the investigator to identify and interview those people who were directly involved, or who witnessed a situation first-hand. 

Ideally there will be enough witnesses available to corroborate evidence. If facts such as the identity of an alleged bully can be verified between witnesses, or certain actions can be adequately cross-checked, the resulting findings and report are likely to be sound. 

Having a support person available for witnesses is always recommended. Being interviewed for a workplace investigation can be stressful for any of the parties. The presence of a trusted support person can help to calm the witness.

interviewing or interrogating? 

It is vital to create the right environment for the interview. At a fundamental level, the interviewer should avoid any method of questioning that could be seen as interrogating rather than interviewing.

Keep the tone conversational and allow enough time to develop rapport across the interview. Inviting questions around how the interview will work, plus describing procedural aspects like recording and note-taking can assist in reducing anxiety. 

State the obvious. For example: "This is a difficult situation involving certain allegations in the workplace, and we appreciate your help here today".

Offer the witness the option to stop and clarify any questions and to take comfort breaks if needed. Firing off questions and requiring immediate answers is no way to develop rapport and will not illicit the best information and or evidence. 

Adopting a stern or hostile demeanour is unproductive and can also lead to claims of bias. A professional interviewer should never see themselves as a TV detective with a rough attitude and a light shining in the respondent's face! The interview is not seen as a technique used to extract a confession from a witness. Building good rapport is the key to a quality investigative report that stands the test of time.

high-quality interview techniques 

The experienced interviewer understands how to conduct the workplace interview with transparency and objectivity. While the personal information of others needs to be protected, the witness should be informed of all relevant material relevant to the allegations. Even alarming or distasteful allegations should be dealt with professionally and objectively. 

Building rapport with a witness is essential for effective interviewing. Structured processes such as the PEACE model of interviewing can help interviewers to cover all aspects of a professional interview. 

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. The model provides eight steps that should be undertaken which includes:

PLANNING: Examine what planning and preparation need to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed. 

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.  

Other tools such as active listening and open questions are also excellent ways to gather the best information, without raising problems of biased interviewing - perceived or otherwise. 

Don't rush the witness as they tell their story. Ask open questions, which allow the witness to provide a spontaneous and genuine description of events, rather than being fenced in by closed questioning or unnecessary interruptions.

Mastering the Investigative Interview 

Obtaining first-hand witness evidence by way of interview is essential to uncovering the facts of a matter. However, conducting interviews into serious workplace issues such as bullying and sexual harassment can be a difficult and sometimes a daunting task. 

WISE investigators have mastered key interviewing techniques and have extensive experience in conducting investigative interviews across industries. We have developed a comprehensive guide to steer HR professionals and investigators through the process. Purchase our book Investigative Interviewing: A Guide for Workplace Investigators for the best tips on successful interview techniques.

Uncovering the Steps of an Effective Investigation Process

Vince Scopelliti - Wednesday, June 26, 2019

For many employers, a workplace investigation process can appear quite challenging to navigate. Questions around the actual subject of the investigation, and who is best qualified to carry out this important task, can immediately arise.

The investigation process itself is characterised by a number of important processes that are designed to reduce the risk of negative perceptions and/or potential legal pitfalls at a later date.

We outline proven strategies for understanding and instigating a high-quality investigation process.

By using these, employers have the capability to implement a fair, thorough and professional investigation, from initial complaint management through to the presentation of an accurate and accessible report. 

Following a clear path

When a complaint arises in the workplace, employers might be tempted to launch straight into the fray and 'get to the bottom of things'. Yet such a tactic can be problematic on a number of levels.

First, compliance with existing policies and procedures concerning investigations is crucial, to ensure procedural fairness throughout the process. It can take time to confer with HR, re-read existing internal guides and to make a plan to investigate the complaint in an appropriate manner. 

Each workplace, employee and complaint is unique and employers are reminded to carefully assess their policy compliance obligations before starting down the investigative path.

Secondly, it is vital to ensure that procedural fairness is built into the entire investigative process. The way in which complaints are dealt with must be transparent and fair for all concerned. Results from an investigation process should be reliable. This is derived from robust interview techniques and document searches that are fair and transparent in nature.

A sound investigative process will also ensure the finality of outcomes, leaving no room for doubt. Complainants, witnesses and employers understandably desire a process where finality and clarity are achieved. 

A step-by-step investigative process

Let's take a look at the key steps of an effective investigation. You can find out more about each of these steps in the investigation process in our upcoming series of in-depth articles.

1. Receiving a complaint

It can be confronting for employers when required to deal with workplace complaints. Bullying, harassment, fraud, sexual harassment and child abuse are just some of the serious issues that can arise in workplace contexts. It is crucial that complaints are taken seriously and that actions are carried out in a measured fashion.

Employers should ensure that internal policies and procedures regarding the receipt of complaints are closely followed. The receipt of complaints involving what is known as 'reportable conduct' will additionally activate compulsory reporting regimes. This means that for certain types of alleged misconduct, employers are legally required to report to prescribed external bodies.

2. Establishing terms of reference

At the beginning of the investigative process, the investigator works with the client to define and limit the Terms of Reference (ToR). It is not appropriate to engage in broad-sweeping analyses of all circumstances that might possibly surround the complaint. The investigator and client work with the initial information, to confine the ToR to the essence of the complaint(s) made. An investigation can become too unwieldy if the boundaries of the ToR are vague, hazy or too broad. 

Perhaps most importantly, unclear ToRs can lead to accusations of uncertainty and unfairness for those parties affected. It can make sense to engage an external investigator in those circumstances where complaints, cross allegations and emotions are heightened within an organisation. Often, an objective outside person can provide the clarity needed to get the ToR right.

3. Letters of notification and allegation

Once thorough scoping has taken place, letters of notification need to be made to respondent, complainant and all relevant witnesses. This provides an important opportunity to communicate the nature of the investigation process, as well as the individual's involvement. The letter of notification describes what is being investigated; who the investigator is; the right to request an interview support person; as well as the need for all parties involved in the investigation to maintain confidentiality. 

With a slightly different purpose, the letter of allegations provides a clear description of the complaints that have been made against the respondent. This important piece of correspondence includes the particulars of allegations, any request for supporting documents, pending interview details, the option of having a support person present, as well as the importance of maintaining confidentiality at all times. All correspondence within the investigation should be clear, comprehensive and accessible by the relevant parties.

4. Interviewing techniques

When conducting an interview, the investigator must constantly consider how to maintain transparency and objectivity at all times. Yet, it is also necessary to build a suitable level of rapport with the complainant, the respondent and with witnesses.

One useful tool for running the interview process appropriately is the adoption of an interview framework.

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. With a useful acronym, the PEACE model helps the interviewer to step consistently through the process.

PLANNING: Examine what planning and preparation needs to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed.

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.

Active listening is also a useful tool for interviewers conducting a workplace investigation. This involves giving close and undivided attention to the interviewee, plus being able to paraphrase accurately what has been said. Wherever possible 'open' questions should be asked - those that allow the person to respond in a narrative manner, based upon their recollections. Examples include 'How would you describe the work relationship between Fred and Frank?'.

5. Report writing

One of the most important aspects of a workplace investigation is the final written report. It is relied upon for ensuring compliance with recommendations, detailing any disciplinary actions and can form a defence against future claims. In accordance with Briginshaw, findings made with objectivity and upon the evidence available, are more likely to meet the evidentiary threshold in serious matters. Investigators should clearly determine if allegations are substantiated, unsubstantiated or if evidence is lacking. Being concise, following a logical sequence and ensuring that 'findings follow the evidence' are all important ways of creating a professional, sound final report.

6. Making findings

One of the last and most crucial tasks for the investigator is making findings. It can seem deceptively simple. This evidence was produced; this is the logical finding. Yet there is more to the equation than this.

It is important to present evidence contrary to your findings and to explain why this was less compelling than the preferred evidence. A clear and objective explanation is needed and can certainly be difficult to word at times. Findings should tie back to the analysis and should define which allegations have or have not been substantiated.

An indication of the weighting applied will be necessary, as will the relevance of the evidence in the context of the particular allegations. It should also be clear in the document that reasoning has taken place in the context of the organisation's policies - including whether or not one or more has been breached.

7. The role of the Fair Work Commission

The Fair Work Commission (FWC) provides an opportunity for workers and employers to take their grievances beyond the level of the workplace. The FWC considers an array of work-related issues every day, delivering determinations on matters such as bullying, employment award issues and unfair dismissal claims. Unlike courts, tribunal-type bodies such as the FWC are built to deliver fair, fast and accessible justice.

Yet it is important to remember that all matters will be dealt with in a robust and objective manner according to law. In keeping with the rule of evidence, the FWC will examine final workplace reports closely to determine if sound analysis and findings have been made; for this reason, a defensible final report is essential.

Obtaining professional guidance 

Getting the process of an investigation right from start to finish is critical for the effective and lasting resolution of workplace grievances.

With over 25 years' experience in investigating and managing misconduct, WISE has put together a toolkit with 20 high quality templates and an investigation guide for even the most inexperienced manager to follow.

How to Deal with an Uncooperative Respondent

Vince Scopelliti - Wednesday, May 29, 2019

When conducting investigations in the workplace, senior staff and human resource managers often have to deal with uncooperative respondents. 

Understandably, this can significantly hamper the progress of the investigation. 

WHat is an uncooperative respondent

There are many ways in which the smooth running of an investigation can be negatively affected by an uncooperative respondent. This can arise when: 

  • A respondent refuses to answer questions put to them, meaning that the investigator cannot create a coherent picture of the events or the respondent's perspective.
  • A respondent is no longer employed by the company. This may make it challenging  to even get in touch with the respondent, let alone encourage them to participate in an investigative process.
  • The respondent is out of the workplace on a form of leave (sick leave, stress leave, workers' compensation) that would in some circumstances mean that they are either not medically capable of, or not medically cleared for participation in the investigation process.
  • A respondent intentionally holds up the investigative process. For example, by frequent and consistent rescheduling of meetings, failing to attend work on days when interview sessions have been set up, or otherwise failing to engage in necessary parts of the process. 

what if there is an impact on others involved in the investigation?

It is particularly frustrating to have to deal with a recalcitrant or difficult respondent when other parties to the investigation are adversely affected as a consequence. 

For example, some respondents may seek to intimidate other witnesses with a view to discourage them from participating in the investigative process. 

When dealing with this type of situation, investigators should encourage witnesses to participate in the process by confirming that their involvement remains confidential, and by redacting sensitive information such as names or identifying details when providing documents to the respondent. 

Further, witnesses should be advised that their involvement in the investigative process cannot and will not have any adverse impact on their employment. 

can an investigation occur without the respondent's involvement? 

When faced with a situation where a respondent is failing to cooperate, an investigator can proceed without their involvement in certain circumstances. 

Crucially, it is important that an investigator is able to demonstrate that the investigation proceeded in accordance with all requirements of procedural fairness. 

In particular, this means that there must be a document trail confirming all the efforts that have been made to engage with the recalcitrant respondent. There must also be evidence that attempts have been made to explain to the respondent that their non-involvement may impact but will not stop the investigation process. 

The intention here is to be able to demonstrate to a court, tribunal or other third-party reviewer that the investigator took all reasonable steps to include the respondent and their point of view in the investigation. 

No presumptions or assumptions can be made about the evidence used to determine the substantiation of allegations, if a respondent does not participate in the investigation process. 

how can a respondent be encouraged to participate?

Although some respondents simply will not cooperate, investigators should provide a raft of different options to encourage respondents to meaningfully engage in the process.  

These options include:

  • Encouraging respondents to provide written responses to a series of questions. This is likely to work best for the respondents who are nervous about incriminating themselves during interviews, or otherwise concerned about the investigative process itself. 
  • Reassuring respondents that, despite the allegations facing them, they are entitled to both confidentiality and the assurance of procedural fairness. This may alleviate the concerns of some respondents who feel that they may not be offered a fair right of response. 
  • Reminding a respondent of the entitlement to have a support person present during an interview if required. 
  • Reassuring a respondent that there is an opportunity to provide comment, feedback, additional information and/or evidence on any findings if considered necessary for clarification. 
  • In certain circumstances, it may be best to advise respondents that external investigators have been engaged to facilitate the investigative process. This is likely to be most appropriate in situations where the allegations are particularly serious, or where there is some concern that an internal investigative process may not be completed objectively. For example, if the other parties involved in the investigation are in senior positions or are close to the investigators.  

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. 

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.  

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.  

How Can Employers Assist Workers with Acquired Brain Injury

Vince Scopelliti - Wednesday, August 16, 2017

A decision by the Queensland Court of Appeal highlights why employers must take into account the needs of workers with an acquired brain injury, in order to avoid being considered to have discriminated against them. 

In Chivers v State of Queensland (Queensland Health), the Court of Appeal heard a case pursued by Ms Chivers, who was employed as a registered nurse with Queensland Health (QH). She had an acquired brain injury from a horse riding accident in 2004. As a result of her accident, she experienced headaches and nausea and was unable to work night shifts. 

QH initially accommodated her working requirements. However, despite QH's apparent support of Ms Chivers, her probationary period was extended on three separate occasions, ostensibly to allow an assessment of her ability to work nights. Eventually, after one year, Ms Chivers resigned and claimed that QH had discriminated against her by failing to confirm her employment. 

In its defence, QH argued that working nights was a 'general occupational requirement' for registered nurses who were employed in 24/7 wards, and that Ms Chivers failed to comply. But Ms Chivers presented evidence of other nurses in permanent employment who were not required to work across all shifts, despite being employed in the same 24/7 wards. 

The Court of Appeal held that the ability to work across all shifts was not a genuine occupational requirement. 

Although there can be specific challenges when working with people suffering from an acquired brain injury, this does not mean that they can or should be discriminated against in the workforce - including when it comes to conducting workplace investigations. 

What is an acquired brain injury?

Acquired Brain Injury (ABI) is the term used for any brain damage, which is sustained after birth. Causes include physical head trauma, strokes, brain tumours, brain infections, alcohol and drug abuse or neurological diseases such as Parkinson's disease. This term is used to describe both permanent and temporary injuries. 

Those suffering from an ABI are likely to experience ongoing difficulties with: 

  • Concentration
  • Processing information at speed
  • Fatigue
  • Memory
  • Problem Solving and lateral thinking
  • Organisation of thoughts and activities 
  • Planning
  • Self-control and monitoring
  • Insight into personal behaviours
  • Emotional lability
  • Restlessness (physical and emotional) 

tips for managers of employees with an abi

Perhaps the greatest potential challenges are difficulties with memory, cognition and communication. When communicating with people with a disability, it is important for managers not to focus on the potential restrictions of their employees, but to consider how to get the best out of their workers. 

In the context of an ABI, this is likely to take the form of:

  • Flexible working arrangements, such as part-time or reduced hours, or the ability to call in sick with short notice. From a recruitment perspective, one of the best ways to ensure that everybody's needs are met is to ask potential employees who have declared an ABI to provide any assessment or medical treatment reports which could provide guidance as to their capacity and daily needs. New employees should be encouraged to undergo a work trial period, during which both employer and employee can consider what tweaks might be necessary to ensure that the arrangement works optimally for both parties. 
  • Developing appropriate risk mitigation strategies. This includes ensuring that both employer and employee are aware exactly what is and might be required of the employee with the ABI, so that their role is clear. Other strategies include making sure that workers compensation and medical leave certificates are appropriately filled in, even if the employee is required to take a lot of sick leave. This will help to ensure that events are well documented in case a dispute arises. 
  • Ensuring that instruction manuals and written directions are easily accessible and clear. People who suffer from an ABI may require frequent reminders and mnemonics to perform their job to their full ability, and facilitating this will help an employer to best unlock an employee's potential. 
  • Implementing a workplace buddy system. A dedicated buddy can not only provide ongoing emotional and personal support, but also assist with simple memory jogging and reminders when needed.

undertaking workplace investigations involVing an ABI

The difficulties inherent in the workforce for people suffering from an ABI are magnified when a workplace investigation needs to be conducted - regardless of whether the employee with an ABI is the victim, the respondent or a witness. 

In order to counter difficulties associated with an ABI, employers engaged in investigative interviewing should consider strategies including: 

  • Prior to conducting an interview with a person with an ABI as part of an investigation, the investigator should make an assessment about the witness' communication, including skills, abilities and whether they use any types of communication aids. 
  • Talk to other staff or human resources to obtain some further information that can assist in understanding how best to work with the employee with an ABI. 
  • Reducing distractions during the interview (for example, make sure the radio is turned off and there are no unnecessary staff sitting in on the interview). 
  • Using short and simple sentences to avoid confusion, especially when putting allegations to the interviewee. This should also include presenting information slowly and one bit at a time.
  • Giving frequent reminders of the next step - this is particularly important from a procedural perspective. From an employer's perspective, this is also important to avoid any allegations of abuse of process or discrimination. 
  • Being prepared to repeat information as often as necessary until the employee clearly understands what is being conveyed. 
  • When the employee is clearly distracted, ensuring that they are brought back to focus on the matter at hand. 

Interviewing an employee with an ABI is challenging and can be very difficult to get right. If you require a highly experienced interviewer to assist with a workplace investigation involving a person with an ABI, or any other disability, contact our investigations team today for expert assistance.

Handling a Paranoid Response to Workplace Investigations

Harriet Witchell - Wednesday, June 21, 2017

In conducting workplace investigations, both the alleged victim and perpetrator and potentially even witnesses may have an intensely personal reaction to the accusations. But what happens if one of the people involved in a workplace investigation has a mental illness or otherwise suffers from poor mental health? 

In this situation, a workplace investigation can be perceived as a direct personal attack - for example, a complainant may feel that the mere fact of an investigation means that they are not taken seriously or believed in their allegations. A respondent to a complaint may feel vilified or victimised by having to respond to the claims at all. In these circumstances, it could be easy for paranoia to creep in during the investigative process. 

So what additional steps should a prudent employer take during the investigative process when dealing with an employee who struggles with their mental health? 

POTENTIAL CONSEQUENCES OF FAILING TO CONSIDER MENTAL HEALTH

The State of Workplace Mental Health in Australia report, released by TNS Australia and Beyond Blue, has found that 45% of all adult Australians will experience a mental health condition at one point in their lives. In addition, untreated mental illness costs Australian Workplaces almost $11 billion annually.  

This financial cost (calculated on the basis of absentee figures, 'presenteeism' where employees are physically present but not performing to their maximum capabilities, and compensation claims) is reason enough to take mental health in the workplace seriously, and to ensure that workplace investigations do not run roughshod over the rights of employees with mental health concerns. 

However, even more concerning is the potential for a poorly handled workplace investigation to exacerbate an employee's mental illness or even to cause a new psychological injury. 

It is crucial for employers to ensure that workplace investigations are conducted sensitively and have regard to any disclosed or hidden mental health issues suffered by employees. This is particularly the case given that it is an employer's legal obligation to ensure that workplaces are free from conduct which could reasonably be foreseen to cause injury, including psychological injury, to employees. A failure to do so can leave the employer exposed to a compensation claim.  

WHAT SHOULD AN EMPLOYER'S RESPONSE BE?

Employers must ensure that investigators don't dismiss signs of paranoia as an employee being 'silly' or simply difficult. 

It's important to recognise that the employee does genuinely feel under threat, without agreeing with them, and to lay out any evidence clearly. 

It can also be helpful to detail how the investigation will proceed to avoid the risk of misunderstandings, for example an employee deciding that more than a week has passed therefore an adverse finding must have been made against them. 

Honesty and fairness are key in any workplace investigation, but it is particularly important to demonstrate both when dealing with an employee who is feeling under attack. It's essential to remain patient, and work on building trust and rapport in interviews.  

Employees should also be able to access a support person of their choice to participate in any interviews or other formal steps of the investigation. 

Being available and following through on any actions that have been decided on, however minor, may also help lower a fearful employee's anxiety. 

If the initial complaint has caused or substantially contributed to an employee's poor mental health, and this has resulted in the employee receiving a medical certificate, an employer should consider not permitting the employee to return to work until the investigation has been resolved. Any decision along those lines should be made strictly in consultation with the employee's medical team and the employee themselves.  

    HOW WE CAN HELP

    Taking these simple steps will help to ensure that your staff do not feel victimised and do not become unduly paranoid or concerned about the investigative process and potential outcomes.  

    At WISE Workplace, we can help you navigate your way through the potential minefield of workplace investigations. We offer full investigation services if you prefer to outsource, and also training to assist you in running your own investigations.

    Her Word Against His – Detecting Lies in Interviews

    Harriet Witchell - Wednesday, May 17, 2017

    One of the most challenging aspects for employers attempting to deal with workplace bullying or misconduct is getting to the truth of allegations, especially in circumstances where the apparent victim's version of events contradicts that of the alleged bully.

    Most of the time, this disparity can be put down to differences of opinion or misinterpretation of intentions.

    For example, the accused bully may have simply felt that they were performance-managing their subordinate, whereas the victim may have felt denigrated and abused. A purported victim may consider themselves to be the target of sexual harassment, while the accused bully may have simply wanted to ask them out for a friendly coffee.

    But occasionally, for whatever reason, apparent victims of bullying tell lies in the interview process and make false accusations of bullying. This could be because they dislike the alleged bully, believe the "bully" should be dealt with by management or simply because they have embellished their story and feel that they need to stick with it now that a complaint has been made.

    Regardless of the myriad reasons why a victim may lie during an investigative interview, how should this be dealt with by an employer?

    GUARDING AGAINST BIAS

    Although it is natural to sympathise with a purported victim, and perhaps unconsciously believe their version of events over that put forward by the alleged perpetrator, the most important function of a workplace investigator is to establish the truth surrounding the allegations.

    It is therefore imperative that any preferential bias in favour of the apparent victim is removed. If you do not feel that you can adequately perform an interview without such bias, whether because of your relationship with the victim/bully or because you can personally relate to the allegations of bullying, ensure that another person is tasked with conducting the interviews.

    PICKING UP VERBAL AND NON-VERBAL CUES

    Once the claimed victim is participating in the interview process, ensure that you are observing any cues which may indicate that they are not telling the truth. These could include:

    • Overly elaborate stories and excessive irrelevant detail, suggesting an invented story,
    • Gestures and words not matching each other in context, implying that the words have been rehearsed.
    • Whether the story makes sense – is it even plausible that the allegations being made against the bully could be true?
    • A lack of consistency – is the interviewee telling the same story each time or are details changing?

    Of course, these can be subjective indicators. It is important to tread carefully when deciding whether a victim is lying about their version of events: making an unfounded and inaccurate accusation can cause even greater distress to an innocent victim.

    In this regard it can be helpful to have another person sit in on the interview with you, so that they can provide their own opinion on whether the version of events being provided is accurate, and temper your initial reactions.

    THE NEED FOR CORROBORATING EVIDENCE

    Once the alleged victim has provided their version of events and it is apparent that this contradicts that of the claimed bully, it is essential to seek corroborating evidence to either prove or disprove the victim's story.

    In addition to speaking with third party witnesses, such as other staff members at work at the time of the alleged incident, this could include evidence such as reviewing CCTV footage, checking personnel files for prior complaints or even performing basic checks such as making sure that both employees involved in the complaint were even working together at the relevant time.

    Conducting a workplace investigation is a complex task, often requiring specialist knowledge and experience. WISE Workplace can assist with conducting interviews if you wish to safeguard the investigation process by avoiding any allegations of bias or favouritism, or are otherwise concerned that the interviewee may not give the full version of events. Please feel free to contact us for more information.