Counter Allegations - Who Did What When?

Vince Scopelliti - Wednesday, June 20, 2018

Experienced workplace investigators are well aware that when two or more people are in dispute, there will inevitably be differing perspectives on what 'the truth' might look like. Contentious workplace issues can often play out in a 'he said, she said' fashion, with one allegation being closely followed up by a second person's counter-allegation. Such complications should be dealt with in a fair, considered and methodical way.

Separate allegations made by opposing parties will ideally be dealt with in discrete stages by workplace investigators, with each being handled in accordance with its individual merits. And as evidence comes to light regarding one or more of the competing allegations, investigators should aim to assess and weigh each piece of information with utmost care and objectivity.

When two tribes go to war 

When a counter-allegation is initially made, it is important not to jump to conclusions regarding this development. It does not necessarily mean that the first complainant was misrepresenting events or indeed that the second complainant is somehow defensive, guilty or panicky. It is possible that both the original and the counter complaints are valid.

Let's take an example: perhaps she took his stapler and he wiped her hard-drive. Two complete denials on the same issue can require the workplace investigator to look more closely at the milieu of the counter-allegations. For instance, if two workers in a scuffle both identically calm that "I did nothing - she pushed me", an astute investigator will know that a pointed and methodical approach to the counter-allegations is certainly called for.

In each of these scenarios, both allegations should be investigated and dealt with separately. It can be tempting to create one big file entitled 'Stapler/hard-drive fiasco' or 'Smith and Jones stoush'. Yet clear delineations between people, events and timing will ensure that impartiality and clarity are maintained for the duration of the investigation and that the validity of each complaint is tested.

Seen and unseen allegationS

Very occasionally a workplace investigation involving counter-allegations will be easily settled. For example, the employee might not have been at work on the day that she allegedly stole the stapler - a simple mistake, evidenced by the work roster and now the complaint file can (on that issue at least) be finalised.

If only things were so simple... In most workplace situations, the investigator will need to step carefully through complex evidence attached to each allegation. Some events might be directly witnessed in a cut and dried way; Brown was in the kitchen with Smith and Jones on 7 December 2017 and can confidently say she saw Smith push Jones, who then walked away. Yet in many cases there are no witnesses to wrongdoing in the workplace and the 'he did/she did' scenario must be dealt with. 

Further clarification in many forms becomes the best way to methodically tease out the knots of knowledge. This might take the form of documentary evidence, circumstantial evidence such as presence at a meeting that day, or a contemporaneous report such as an OH&S report involving counter-complainants. A tidy pattern of good circumstantial evidence can at times provide the clarity needed in the face of vehement counter-allegations. The workplace investigator must carefully assess the quality, reliability and utility of such material, being sure not to make assumptions and/or factual errors along the way.

Hearsay - treading lightly on complex terrain

As with all areas of law and investigations, hearsay evidence can provide helpful insights in situations where nothing more concrete is available. Hearsay is generally words or things observed by an individual who was not directly present when an event occurred. In other words, it is a type of indirect evidence. A simple idea, but surprisingly difficult to manoeuvre successfully during investigations.

Great care is needed in these situations, as hearsay evidence is notorious for causing problems later in post-investigation proceedings. Employees may go home and talk openly to their spouse about distressing events. Or they stomp back to their desks, muttering to a colleague about 'the stapler thief'. Yet the spouse or the colleague cannot tell us much about what actually happened. They are a friendly ear - after the alleged event.

Such indirect evidence can be the least helpful in many cases. However, experienced investigators will know how to gather and utilise such material when more direct evidence is difficult to obtain.

Workplace allegations and motivations

It is not unheard of that rather ulterior motives can exist in a workplace allegation. When stories are not gelling, it is natural for the workplace investigator to think - what am I missing? Why would this person make this up? It is important to consider the possibility that rivalries, emotional issues and/or collusion might unfortunately form part of the mix that has motivated an internal complaint. While it does not pay to assume such a phenomenon, investigators should be aware that such dynamics can and do arise in the workplace.

In workplace investigations, we find that it is never simple. If you have an investigation that has 'blown' out, or you are reviewing cross and counter complaints and could use some professional assistance, then contact WISE today.

How Medical Evidence Supports an Unbiased Investigation

Vince Scopelliti - Wednesday, November 01, 2017

When claims of abuse in care come to light, strong emotions can arise for all concerned. It is not surprising that when an unexplained injury is uncovered, family members, care staff, and employers will want immediate answers. 

However, it is vital that employers maintain clear thinking and remain objective when investigating allegations of abuse in care. 

Engaging an external workplace investigator can be helpful in maintaining neutrality, and conducting a detailed, unbiased investigation. Medical evidence is also highly relevant in these situations as it is collected in a scientific manner, without bias towards a particular party.

zero bias when investigating assaults 

In emotionally charged situations, family and friends may understandably demand immediate answers about the cause of a loved one's unexplained injury. When abuse appears to have occurred against a vulnerable individual, it is a disturbing thought for all involved. 

Workplace investigators understand that despite - or perhaps because of - such high emotions, the investigation must be coordinated and managed with an extremely steady hand. 

An experienced investigator will be acutely aware of the rules of evidence and how important the accurate collection and management of the evidence will become, should the matter be taken on review. Accordingly, from the very start of an investigation, it is understood that all information, statements, workplace documents, interviews and clinical data is to be gathered with a view to fairness, objectivity and clarity.

assessing medical evidence

Family members of the vulnerable person affected by the unexplained injury may not be aware of the detail of the circumstances of the injury. 

Factors such as the site of an unexplained injury, medical history and medications, client age, frailty and demographics, unique aspects of accommodation and access, care routines, staffing variables and medical documentation - to name a few - will all form part of the complex medical evidence matrix when evidence is being assessed. 

Delays in getting the victim medically examined or a delay in reporting incidents can often mean that the medical expert may need to rely on descriptions provided by witnesses or photographs taken of the injury. This will significantly diminish the quality of the medical evidence. Poor quality photographs and descriptions will make it even more difficult to obtain any reliable medical evidence. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 is generally regarded as authority for the idea that on the balance of probabilities, if a finding is likely to produce grave consequences, the evidence should be of high probative value.

In cases of alleged assaults in care, professional investigators will ensure that all evidence - medical and general - is collected and reported on with utmost care. This approach ensures that irrelevant factors are not given weight. 

When the medical evidence is combined with overall procedural fairness across the investigation, the resulting investigative report into an alleged assault will be of high quality and robust in terms of the weighing of the evidence and findings.

    why an impartial investigation is important

    When investigating abuse in care, the standard of evidence obtained is a crucial factor. By including sound medical evidence, the investigator brings an unbiased and highly detailed viewpoint to the allegations of assault. This expertise can mean the difference between a fair and objective investigative report and one that is tinged by the emotionally charged nature of the situation. 

    Should the matter be taken on review, the court will apply the 'reasonable person test' to the facts and evidence available. If the investigation is not fair, clear and comprehensive, then the court may find the resulting report does not meet this standard. 

    If your organisation requires a workplace investigation into an unexplained injury, our team can assist with either full or supported investigation services. WISE are highly experienced in the complexities of investigating unexplained injuries in care settings, including the assessment of medical evidence.

    Bullying in High Stress Workplaces: Can an Investigation Help?

    Vince Scopelliti - Wednesday, August 30, 2017

    A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

    The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

    It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

    In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

    Alarming workplace reports

    Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

    Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

    Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

    Workplace bullying and hr responses

    The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

    As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

    In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

    If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

    THE good and the bad of workplace investigations

    Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

    Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

    Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

    investigation woes: a case in point

    In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

    The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

    Care at every turn

    Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

    Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

    Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us. 

    Do I Need to Follow Rules of Evidence?

    Harriet Witchell - Wednesday, February 17, 2016
    Rules of Evidence

    Rules of evidence exist to ensure that court hearings are properly and fairly conducted. They are enshrined in legislation. 

    To be admissible, each piece of evidence must satisfy all the checks and balances set out in the legislation. 

    EVIDENCE AND THE Fair Work Commission (FWC)

    The FWC is not bound by the rules of evidence or procedure in any matter it hears, although it conducts itself in a manner similar to a court, for example witness evidence is heard under oath and document disclosure processes must take place. The rules of evidence serve as a general guide to FWC members about how to determine matters. 

    Because non-lawyers often appear before the FWC, and because it aims to deal with matters efficiently, it may choose to overlook some rules of evidence in favour of efficient case-flow and to ensure it remains accessible to lay parties. 

    However, failing to adhere to the rules of evidence may cause you problems such as in the case of Wong v Dong Lai Sun Massage Pty Ltd.

    A case in point

    In the case of Wong, Wong was employed as a masseur by Dong Lai Sun Massage (DLS). Wong had applied for a temporary work visa and was awaiting the outcome of that application.

    Wong claimed that her employment was terminated following absence from work due to injury. She made an adverse action claim under the Fair Work Act. Mrs Dong wanted to represent DLS and made an application to the Federal Court to do so. (Neither party had legal representation at the time of the hearing). 

    The facts of the case were complex and conflicting. There were allegations of illegal payment methods, employment in contravention of visa requirements, loans from Wong to the employer, whether the employment was casual or full time, confusion over Wong’s duties and the issue of workers’ compensation. 

    To add to the complexities, neither Wong nor Dong could understand English and neither had sought the assistance of an accredited translator and were seeking to represent themselves.

    The judge said that neither party had identified any of the evidence as inadmissible and the court may need to take on that role.  The affidavits that had been filed by the parties did not comply with the court rules and neither party could assist the court because of their inability to speak English.  

    The judge found that the parties were incapable of assisting the court to understand or resolve the matter.  He refused the application and issued a certificate for DLS to access free legal advice.

    tips to gathering quality evidence
    1. If it involves complex legal principles consult a solicitor or engage a professional investigator at the outset
    2. Make sure your evidence is relevant to the dispute
    3. Gather first hand accounts wherever possible
    4. Stick to original documents or provide authentication of the accuracy of documents that are copies
    5. Although circumstantial evidence can be used, you must clearly articulate the reason that the evidence points to a particular conclusion - don't expect everyone to form the same opinion as yourself!
    For more information on using circumstantial evidence in workplace investigations, download our free white paper.  

    Wise Workplace provides qualified and licensed investigators and trainers to help organisations manage workplace misconduct.

    The Year that Was: Lessons from 2015 Part 2

    Jill McMahon - Monday, January 25, 2016
    Lessons from 2015 Part 2

    Here at Wise Workplace, we’ve been focused recently on reviewing the past in order to learn for the future. Last week’s blog, part 1 of our two-part series on lessons employers can take from 2015, highlighted some important case law around the themes of bullying and the definition of ‘at work’.  

    In part 2, we take a look at important decisions in other areas of workplace law, including workplace culture and procedural fairness, and the implications for employers. 

    Workplace culture and its impact

    When it comes to workplace culture, alcohol seems to be a key feature – and an increasingly vexing issue for employers.

    In the NSW District Court matter of Mitchell-Innes, a manager attended a conference still drunk from the night before. He disrupted part of the session and his employment was later terminated for gross misconduct. 

    The court found that alcohol consumption was entrenched in the workplace culture, and this meant that the employee’s conduct was not serious enough to warrant termination of employment. 

    Similarly, Keenan’s drunken behaviour during and after the office Christmas party led to the termination of his employment. 

    Both cases found that misconduct would be harder to establish when there was a culture of drinking in the workplace, including after-hours functions. 

    In Keenan, the FWC listed some steps of caution that a reasonable employer should take in trying to stop things getting out of hand, including ensuring that alcohol service is restricted, and employees are aware of employer expectations of behaviour. 

    Overstepping the mark

    2015 also saw cases of workers being unfairly punished for a third party overstepping the mark.

    In Amiatu, employees were accused of theft. Their union representative persuaded the company to allow them to resign rather than be terminated. The employees later claimed they were coerced to resign because they feared police involvement. The FWC held that the union representative failed to act in the best interest of the workers, even though the employer had reasonably believed it had negotiated an outcome.

    This is a reminder to employers to be careful about negotiating with employee representatives, especially when the employee is not present. 

    In the case of BQY, systems designed to protect went too far. A female student teacher had allowed a former student to kiss her some time after she had finished her placement and after the boy had turned 18. She was subsequently refused a clearance to work with children by the Children’s Guardian, placing her teaching career in jeopardy. On review, it was found that she was not a threat to the safety of children, and she was granted the clearance. 

    Procedural fairness and standard of proof

    No workplace investigation is of value unless it is undertaken properly, so it is no surprise that procedural fairness featured prominently as a theme last year. 

    In Amiatu, as well as the union overstepping the mark, the FWC found that the employer had not uncovered enough evidence to prove allegations of theft and had failed to objectively assess the matter. The Elton case concerned an employee’s alleged suspicious behaviour. The FWC found there was a reasonable explanation for the employee’s conduct, and the employer did not have enough evidence to support the allegations. 

    Both cases are a reminder that evidence must be carefully assessed and all possible options and explanations considered. Engaging an independent investigator is often an excellent way to achieve this.

    In Willis, there was some confusion about whether the employee was being performance managed or disciplined. The FWC found that employers must be clear about the process from the outset, and that any action taken against the employee must be a proportionate response to their conduct.  

    The NSW Supreme Court case of Bartlett found that the employer could effectively set its own standard of proof, depending on the wording of the employment contract in question. It will be interesting to see how this decision is subsequently developed, as it seems a significant departure from the usual standard of ‘on the balance of probabilities’. 

    A timely reminder

    These employment law decisions of 2015 serve as a good reminder of the fundamentals for disciplinary matters or termination of employment: 

    • Investigate properly and fairly.
    • Maintain objectivity. 
    • Act within authority.
    • Foster a workplace culture that is safe and healthy for all.

    Keeping these things in mind, we hope that our clients enjoy a happy and prosperous 2016!  

    The Year that Was: Lessons from 2015 Part 1

    Jill McMahon - Monday, January 18, 2016
    Lessons to be learned from 2015

    It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

    In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

    In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

    When is employee conduct considered to be 'at work'?

    One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

    In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

    In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

    Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

    These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

    • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
    • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
    • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
    Developments in workplace bullying

    For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

    In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

    The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

    Employers must:   

    • Take seriously any complaints concerning the conduct. 
    • Take immediate action to stop the conduct. 
    • Have proper policies and procedures and educate all staff about appropriate conduct. 

    What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

    No Proof: The Key Role of Circumstantial Evidence

    Jill McMahon - Monday, December 14, 2015
    No Proof: The Key Role of Circumstantial Evidence

    The issue of circumstantial evidence can often arise in workplace investigations, and there can sometimes be confusion about how to handle it. 

    We take a look at the role of circumstantial evidence in this article, and our latest free white paper 5 Principles of Applying Circumstantial Evidence in Workplace Investigations also delves deeper into what can be a vexing issue for employers.

    Direct versus circumstantial evidence

    In some workplace investigations, there is no direct evidence. That is, there are no witnesses or other evidence directly linking the employee to the alleged misconduct. Yet there can often be indirect or circumstantial evidence, for example: 

    • Witness accounts that show a pattern of behaviour, for example an employee regularly being seen at the site of an alleged incident. 
    • Swipe card records that reveal an employee’s regular use of a particular exit at a particular time.     

    This kind of evidence can create an impression that the employee was involved in the incident. However, in workplace investigations, a feeling or impression is not enough for the investigator to be satisfied as to guilt. 

    Whether available evidence is direct or circumstantial, allegations in workplace investigations are determined according to the civil standard of proof, known as the balance of probabilities.

    Balance of probabilities

    In essence, the balance of probabilities means that the investigator must determine that it is more probable than not that the events occurred. This may require the investigator to compare competing versions of events from various witnesses to determine which version is more probable. 

    But Australia’s High Court has determined that there is more to the standard than this simple formula. In the famous case of Briginshaw v Briginshaw, the High Court held that a court should not lightly find that a serious allegation has been proved from circumstantial evidence alone. The High Court has since determined that there are no hard and fast rules in determining circumstantial evidence and the question is simply whether the allegation has been proved on a balance of probabilities. However, the NSW Court of Appeal has highlighted five principles surrounding the use of circumstantial evidence, which are available in our free white paper.  

    Applying the standard of proof

    In the context of a workplace investigation, consider a scenario of alleged time sheet falsification, where there is evidence that: 

    • The employee under investigation consistently failed to complete projects on time. 
    • Phone records showed regular outgoing calls from the employee’s assigned mobile phone during work hours from non-work locations at around the end of school hours. 
    • The employee’s children attend a school in the same area in which the phone calls originated. 

    The question is whether it is reasonable to infer from this circumstantial evidence that the employee regularly attended to personal matters during work hours, for example: 

    • Collecting children from school. 
    • Failing to return to work, even though the timesheets show that they worked an eight-hour day. 

    The employee might respond to the allegations by saying that: 

    • They cannot remember making any phone calls at a regular time to a regular place. 
    • They sometimes lent their phone to close family members who could have made the calls. 

    In this case, the investigator should consider the pattern of behaviour revealed by the outgoing telephone records and determine whether it is probable that the employee’s relatives made these phone calls. The more serious the allegations, the more carefully the evidence should be considered before reaching a conclusion. 

    In this situation, the investigator would interview all possible witnesses to try and find some direct evidence. If there is none and the view is that the circumstantial evidence is not strong enough, the employer may consider hiring a private investigator to determine what the employee does when they leave work each day.

    Handling circumstantial evidence

    It’s not ideal to be dealing with only circumstantial evidence when conducting an investigation. Witnesses and documents are very useful and as they are direct evidence, they carry much more evidentiary weight. But in circumstances where there is no direct evidence, as much circumstantial evidence as possible should be collected and analysed. If relying solely in circumstantial evidence in an investigation, proceed with great caution and seek advice before determining the outcome of the investigation. 

    First Cab off the Rank? Interviewing Respondents

    Jill McMahon - Monday, November 23, 2015
    Interviewing Respondents in Workplace Investigations

    Even the simplest of workplace investigations can be a tricky balancing act. You need to consider how to investigate the matter, collect evidence and adhere to various laws, all the while having regard to employee welfare and the needs of your organisation. 

    Strategy is a key element of a successful investigation. One important question to consider, especially when investigating a complaint, is when to interview the respondent. 
    Investigation fundamentals
    At its core, the purpose of a workplace investigation is to establish the facts of the incident or issue. 

    Investigation plans are essential, and because every circumstance is unique, every investigation must have its own specially formulated plan. But every plan must have three common threads:

    1. Procedural fairness
    2. Gathering as much evidence as possible
    3. Ensuring that all relevant issues have been properly explored

    Having regard to these three issues when planning the investigation necessarily involves a consideration of when to interview the respondent. There is no “one size fits all” answer, but there are a number of considerations that may help you make a decision about your approach.

    Advantages of interviewing the respondent first

    Interviewing the respondent at the start of an investigation has a number of advantages. 

    For example, when an allegation is made, procedural fairness requires that an investigation is conducted in a timely manner. If the respondent admits the allegation straight away, the matter can be dealt with quickly and perhaps without involving other parties. 

    This increases efficiency and minimises stress on the respondent and complainant. It also cuts down on management time spent investigating, and there is a greater chance of confidentiality being preserved because fewer parties are involved. 

    In the course of an investigation, there will often be more than one interpretation about what has happened. There may be motivating factors of which you, or other witnesses, are unaware. 

    Putting allegations to a respondent at the outset may provide new avenues for investigation that would otherwise have been unknown to you. For example, the respondent may have been provoked by another person. 

    Interviewing a respondent at the beginning is a good way of getting all the cards on the table so that you can fully comprehend the issues and refine your investigation plan.

    Disadvantages of interviewing the respondent first

    Putting allegations to a respondent must be done in a way that does not undermine procedural fairness. One of the difficulties of interviewing the respondent first is that you are putting forward unfounded allegations. So special consideration must be given to the manner in which the allegations are presented. 

    Putting forward unfounded allegations risks the respondent becoming upset or uncooperative, and may also make it difficult to narrow the key issues to be investigated. These things may increase the time it takes to investigate the matter. 

    Another problem is that the employer is putting forward allegations without being aware of all the circumstances leading to the alleged conduct. This may undermine the investigation process – if new information later comes to light, the respondent has not had an opportunity to address it. This puts the reliability of the investigation under threat for lack of procedural fairness.

    The employer could recall the respondent at a later stage in the investigation, but in the interests of fairness to the respondent and cost efficiency to the business, it is always a better course to interview each person just once. 

    Another issue is the potential conduct of the respondent after being interviewed. If the allegations are denied, there may be a risk that evidence is tampered with or destroyed, or witnesses are colluded with or threatened. If you have already collected the evidence, there is less risk of this happening. 

    The need for a strategy

    When it comes to the timing of interviewing a respondent, there is no uniform answer for every situation. The best approach is to design a strategy to fit the circumstances. This is just one of the reasons why workplace investigations can be complicated and difficult. With experience comes increased knowledge, which is why workplace consultants are invaluable in navigating you and your organisation through the process.

    NEED A SPECIALIST?  ENGAGE AN EXPERT
    WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
    CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
    Location: Melbourne
    Date: 1-3 December


    It's not always Black and White…...

    Harriet Witchell - Monday, June 22, 2015
    Think Employee Behaviour is Black and White?
    Think Employee Behaviour is Black and White?
    Sometimes, workplace incidents can seem straightforward to an employer – an employee has done something wrong, and action should be taken. But two recent cases before the Fair Work Commission (FWC) demonstrate the importance of properly investigating a matter and relying on sound evidence before taking action against an employee, and making sure that the action is an appropriate response.
    Allegations of theft, and disproportionate action
    In Amiatu and Others v Toll Ipec Pty Ltd, three employees took action against Toll for unfair dismissal. They came across an open box containing Toll safety uniforms. Surveillance cameras filmed them removing some of the uniforms and putting them on. They then went about their work. The following day, they worked their usual shifts, wearing the uniforms.

    When Toll management became aware that the workers had taken the uniforms, it interviewed each of the workers and then spoke with the union delegate. Toll intended to terminate their employment for theft, and report the matter to the police. The union delegate persuaded Toll to allow the employees to resign, and convinced the employees to do so, despite their protests. The employees subsequently brought an action for unfair dismissal against Toll. 

    The FWC found that they had been coerced into resignation by the threat of police involvement and poor future work prospects. The FWC also found that there had been no intention by the workers to steal the uniforms. They wore the uniforms in full view of other Toll staff and were also probably aware of the surveillance camera. They believed they had done nothing wrong, and had not made any attempts to cover up their actions. At worst, they had made an error in judgment by not following proper procedures to acquire the uniforms. Reprimands or warnings would have been more appropriate disciplinary action, the FWC found. 

    Toll had failed to prove that theft had occurred. 

    The FWC was also concerned that the union had so strongly encouraged the employees to resign when they had done nothing wrong. This effectively deprived them of adequate representation.

    Although the FWC found no further significant issues with the investigation process, it would have been prudent for Toll to have conducted further interviews with each employee, with their representatives present, before any decisions were made about termination of employment and police involvement. 

    The FWC found that the workers’ employment had been unfairly terminated and ordered their reinstatement.

    The need for a proper investigation and sound evidence

    In the case of Elton v Acupuncture Australia Pty Ltd, the FWC found that there was insufficient evidence to justify the termination of Ms Elton’s employment. 

    Ms Elton worked for the employer (AA) in sales. Another employee had reported that she was behaving in a suspicious manner, printing out sales reports, rushing to the printer to collect them and then putting them in her handbag. AA looked into the matter, and found that a number of invoices had been deleted from the accounts system. AA terminated Ms Elton’s employment for engaging in “corporate theft and fraud involving cash, credit card, paypal and direct deposit.” It also accused her of acting with two former employees, and threatened to report the matter to the police.

    Ms Elton denied the allegations and took action for unfair dismissal. The FWC accepted her explanation that she was printing out the reports to monitor her own performance. It also accepted that deleting invoices was a standard practice for cancelled orders, and that anyone could have done so. 

    The FWC held that there was no evidence to suggest that Ms Elton had acted with the former employees, and that AA had failed to produce any evidence to support its claims of theft and fraud. Nor had AA made a police report. According to the findings, there were also issues with the investigation process, particularly that Ms Elton was not given a proper opportunity to respond to the allegations. Without warning, she was called to a meeting and the allegations were put to her. No documents were shown to her, either to justify the allegations or to seek her explanation. 

    The FWC found that Elton had been unfairly dismissed. AA later appealed and the Full Bench of the FWC upheld the decision.
    Implications for employers
    These decisions demonstrate the need for employers to proceed with great care during investigations, especially ensuring that procedural fairness is adhered to every step of the way. Employers must also carefully assess the evidence against the allegations to ensure that there is enough proof to warrant disciplinary action. This can be challenging if the employer is very involved in the matter, as it can become difficult to make an impartial assessment .An experienced workplace investigator can be of great assistance in these situations, and it’s always a good idea to seek advice before a decision is made to terminate or discipline an employee.
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    Want to Audio Record Interviews But Not Sure How?

    Harriet Witchell - Tuesday, December 16, 2014
    audio recording
    Want to Audio Record Interviews But Not Sure How?

    When you are called upon to investigate a workplace issue, the desire to get a clear and accurate picture of the problem is understandably strong. Recording the interviews seems like a good idea – you’ll have a word-for-word transcript and be able to concentrate more on the conversation. Yet it is important to consider a number of factors. Firstly – what are the legal issues around audio recording, secrecy and permission? Secondly, what sort of introduction is suitable to an investigative audio recording? And in terms of the resulting transcript, which kinds of requests are likely to arise? Recalling that procedural fairness must be at the heart of all workplace investigations, it certainly pays to do your homework before audio recording an interview.

    Permission issues 

    In many cases, interviewees will be quite happy to give permission for you to record the conversation. Others might be fairly reluctant or actually refuse to give recording permission at all. Knowing these variations, it might be tempting to simply record your discussions without permission. This is of course quite possible technologically. 

    But is it legal? In Australia, the laws on improper and/or unlawful surveillance differ across jurisdictions, and it is important to understand the stance taken in your state or territory. In many cases, permission will be implied if the person is told of the recording and does not overtly object. Yet if permission is refused and a recording is nevertheless made – or is made in secret without any discussion – the material will almost certainly have been obtained unlawfully. Such recordings may nevertheless still be admissible in the federal jurisdiction (including the FWC) in accordance with the Evidence Act 1995 Cth. Admissibility will hinge upon elements such as whether or not the conversation was ‘private’, the probative value of the evidence, and the level of impropriety involved in the secret recording. 

    Important introductions 

    Once the tape is rolling (or device is capturing!) your first crucial task is to make introductions that are clear, welcoming and comprehensive. Everybody in the room should be given the opportunity to return your greeting, and state their name and work title for the record. You can also give a brief run-down of the purpose of the interview, giving participants a chance to ask any questions about the process. 

    As well as helping everybody to find their bearings, such general chat can serve to ease everybody into the interview as they work out who’s who. And a further benefit will be the accurate identification of voices by the person typing the transcript. In the bid for accuracy, it is vital that the transcript represents a true record of ‘who said what’. If a subsequent transcript of the conversation reveals that the interviewee was uncertain, confused or pressured in any way, then the probative value of the material in future proceedings might be markedly reduced. Providing open, informative and clear introductions will help to ensure that procedural fairness is evident at all times within the workplace interview. 

    Transcript uses 

    After the workplace interview, the audio recording will be converted to a typed transcription. Request that the interviewee read and sign the transcript to confirm accuracy. But what if a person refuses to sign? Such a situation can arise for a number of reasons, not least of which can be that they are upset and shaken at having talked through the workplace issues. Yet, if we think logically – the entire discussion is there in aural form and can be accessed at future times, such as in court. This is why a transcript is in many ways superior to a statement from the interviewer constructed from written notes; arguments can be made that the interviewee was misrepresented in cases where only notes were taken. 

    Be aware also that an interviewee might ask for a copy of the transcript. It is best to explain that, because the employer is coordinating the investigation, it is up to them to decide on what investigation materials might be given out. Importantly, privacy issues will be relevant. For example if a worker goes back to the office waving a transcript with people and incidents named therein, the investigation’s overall viability could be cast in doubt. 

    Obtaining an audio recording of a workplace interview is an excellent idea. Accuracy will generally be high, assisting clarity throughout the investigation and beyond. Keep in mind best practice for recording permissions, introductions and transcript uses though – consideration of these variables will help to ensure that the overall quality of your interview is greatly enhanced.