Managing Risks in Workplace Investigations

Vince Scopelliti - Wednesday, December 11, 2019

managing risks in workplace investigations?

By its very nature, a workplace investigation involves sensitive and contentious information.

When a workplace investigation is required, whether this is outsourced to an external investigator or conducted in-house, it is necessary to be aware of the risks which could eventuate.

What are the key risks?

These include: 

  • Potential Breaches of confidentiality

Each party involved has the right to confidentiality. A breach of confidentiality occurs when other people/ parties are made aware of the investigation, which could cause "injury" to the complainant or the accused. Types of injury include reprisal, injury to reputation, defamation, ostracising the employee, physical altercations, or the exacerbation of mental health issues such as depression or anxiety. Of course, this is not an exhaustive list of consequences that could arise if confidentiality is breached.

  • Failing to take "timely and determinative" action

In a situation where disciplinary action such as dismissal is ultimately required, delaying action could potentially prejudice the company's position in any subsequent legal proceedings. This is because a tribunal is likely to find that, if the behaviour was sufficiently serious to warrant dismissal, it would/should have been dealt with as soon as possible. Further, if matters remain open and are not dealt with in an appropriate timeframe, there are greater chances of the issue causing conflict, uncertainly and humiliation within the workplace.

  • Risk of litigation
In matters where the actions and integrity of individuals are likely to be called into question, the risk of litigation is always significant. It is crucial that steps be taken at all times to minimise this risk, or position the company in such a way that it has a defence towards any litigation. 

  • Risk of further costs

Certainly, in situations where a company tries to save on costs by minimising the expenses of investigations, and subsequently needs to "fix" the investigation by engaging external investigators or solicitors, expenses are likely to increase. In many cases, it is better to incur appropriate fees and expenses at the outset, rather than having to pay reparatory costs.

How can you mitigate these risks?

In order to minimise the risks associated with investigations, it is prudent to follow a consistent process for each and every one. This includes:
  • Having a process map, which identifies what evidence should be obtained and which witnesses should be interviewed. 
  • The collation and review of evidence by the investigator. 
  • Interviews being conducted by an investigator, who also catalogues facts.
  • Analysis of the information acquired, in addition to determining if additional fact-finding will be necessary.
  • A determination, made by the investigator and relevant parties based on a review of the findings. Internal stakeholders will work with the investigator to determine how best to communication the decision to concerned parties. 
  • A resolution, where the investigator will document the steps and actions taken. The investigator will also arrange required follow-ups with involved parties to ensure that effective remediation has occurred as planned. 
In addition, it is essential to ensure the investigative process is comprehensive and compliant with the requirements of procedural fairness, as well as sticking to the principles of confidentiality. 

By following these steps, a company ensures that, even if litigation becomes inevitable, it is "court ready" and has a legally sound investigative process and findings which it can demonstrate to lawyers. 

Additional steps to minimise the risks of an investigation being challenged include:

1. Ensuring that all allegations are particularised before they are provided to a respondent. By doing this, a company ensures that a respondent cannot say that they were ambushed or otherwise unable to prepare a defence. 

2. Providing clear and transparent information about the investigation process, including how and when it will occur. A respondent should never be engaged in informal interviews as a way to test the waters, as this could result in subsequent complications. By the same token, arranging for external investigators from the outset can substantially lessen risks such as allegations of bias against internal investigators. 

3. Ensuring that nothing suggests that a 'predetermined outcome' has been arrived at. This includes removing any wording such as "bullying" from the complaint document. Instead, such matters should be framed, for example, as "allegations of alleged bullying".

4. Effectively balancing the need of timeliness in the investigatory process against ensuring that respondents have sufficient time to respond allegations. 

If you are concerned about the investigation process at your workplace, you can take simple and active steps to address these concerns. WISE Workplace is an expert within the field of workplace investigations and also offers training for your staff. 
 

Rules of Evidence in Workplace Investigations

Vince Scopelliti - Wednesday, December 04, 2019

Although workplace investigations are not expected to be conducted in the same way as a police investigation, it is essential to keep in mind the principles of evidence which might apply. This is particularly important against a backdrop where many workplace investigations end up in the Fair Work Commission or otherwise in a contentious, litigated setting.

We examine the rules of evidence which should be followed to improve the chances of successfully defending against a claim.    

What are the rules of evidence as a whole? 

The most important rule for workplace investigations is whether the evidence to be presented is relevant to the matters at issue. As the decision of Robinson v Goodman [2013] FAC 893 demonstrates, this is determined by considering whether the evidence is of such relevance as to be "important or of consequence". In other words, it should "affect the probability of the existence, or non-existence, of a fact in issue".

The principle of hearsay evidence is also important to workplace investigations, as is the introduction of tendency evidence. 

Hearsay relates to information obtained via rumour or through a second party. In a courtroom setting, information is deemed to be hearsay in virtually any circumstance where it has not been directly conveyed to the person testifying about it. In the investigatory setting, any hearsay evidence can be damaging to the weight placed on that evidence or testimony as a whole.

Tendency evidence considers whether past behaviour should be used to prove the current matters in question. When determining whether to rely on tendency evidence, it is important to weigh up the potential advantage against the possibility of causing damage to an accused by suggesting that their past behaviour dictates their future behaviour. 

why do the rules of evidence matter 

Any workplace investigation should be conducted having regard to the possibility that the matter could end up in the Fair Work Commission or a court. In the event that this occurs, any investigation which has clearly failed to observe basic rules of evidence may result in an adverse finding against the employer. 

If an investigation relies on evidence that is ultimately inadmissible, then the employer might find itself in a position where it cannot back up its defence in any way which the commission or a court will take into account. 

An additional factor to be taken into account is the Briginshaw principle.  This notes that, depending on the seriousness of any given allegation, the strength of the evidence required to establish proof may change. This means that a tribunal must be satisfied, on the balance of probabilities, that the information before it and on which it is being asked to decide is based on clear, cogent and strict evidence. 

The requirement for a matter to be determined on the balance of probabilities is reaffirmed in section 140 of the Evidence Act 1995 (Cth).

The importance of following the rules of evidence in workplace investigations cannot be understated.  All investigators should consider these rules when collecting and analysing evidence that arises from a workplace matter.

WISE investigators are experts in the field, and with years of experience in undertaking even the most complex workplace investigations, are able to ensure your investigation is fair and legally sound. If your organisation needs assistance with a workplace investigation, WISE provides full as well as supported investigation services.

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

Dealing with Pornography in the Workplace

Vince Scopelliti - Thursday, November 21, 2019

Unsurprisingly, the access to pornography can be extremely problematic in the workplace. Not only does the access to pornography at work open up a minefield of possible harassment and other sexually motivated complaints, it contributes significantly to presenteeism (where staff are physically present but not concentrating on their jobs).

Indeed, according to a report in the Financial Times, 45% of daily viewers of popular pornography compilation site Pornhub, accessed the site between standard business hours of 9am to 6pm. In addition, staff accessing using company resources to access unauthorised websites, can pose a significant cyber security risk to businesses.

Given the almost ubiquitous presence of smartphones and tablets in the workplace, it is becoming increasingly difficult for employers to address and manage the increasing issues related to pornography access in the workplace. Nonetheless, care and consideration must be taken when investigating allegations of employees having accessed pornography while at work. 

what does the fair work commission think?

The Australian employment relations tribunal has made its position on pornography being accessed in the workplace clear. For example, in the decision of Allan Croft v Smarter Insurance Brokers Pty Ltd (U2016/4415), Commissioner Cambridge commented that: "particularly if such conduct occurred in breach of the clearly stated and understood policy of the employer, an employee could expect to be disciplined or even dismissed for deliberately accessing, downloading and/or storing hard-core pornographic material on the employer's equipment, whether such conduct occurred within or outside of the ordinary hours of work"

It follows that there is clear support for termination of employment on the basis of accessing pornography - but only if there is a clearly drafted behaviour policy which explicitly prohibits the accessing of pornography on work equipment or during work hours. 

What role does company policy play?

It is not sufficient for an employer to simply discipline or dismiss an employee for accessing pornography at work, without having provided adequate notice of the company's position on pornographic materials.

This means that employers should have in place a clearly articulated and freely available policy on the topic of unacceptable workplace behaviour and conduct. That policy should explicitly set out what is considered improper use of company equipment, technology and Internet access. There should also be a statement to the effect that the use of company equipment and resources should be confined to work-related activities.

In addition to drafting the policies, it is essential that employees are both made aware of and understand them. Ideally, there should be regular training on what is considered to be acceptable behaviour in the workplace.

Action by employers 

Notwithstanding the support of case law, employers should still tread with caution in relation to disciplining or terminating employees for accessing and/or downloading pornography.

It is crucial that employers not act rashly by summarily dismissing staff without following due investigatory processes. When making decisions in relation to discipline or dismissal, the procedures set out in the relevant company policy must be adhered to. This will best protect the employer against subsequent proceedings for unfair dismissal.

Although employers should not deviate from usual investigation practices when dealing with pornography in the workplace, it is important that this type of behaviour is dealt with swiftly and decisively. This is in part because other employees who may be sent or otherwise exposed to pornography could also make claims for sexual harassment.

Addressing employee conduct regarding matters of internet usage and technology is a challenge for all modern workplaces. If your organisation requires assistance in enforcing policies to ensure matters of misconduct are dealt with in a fair and considered manner, WISE delivers training as well as investigation services to help you meet the challenges that arise in contemporary workplaces.

Audio Recording or Written Statements?

Vince Scopelliti - Thursday, November 07, 2019

Appropriately recording evidence is a crucial part of workplace investigations.

For investigators, this can cause a significant dilemma as to whether it is preferable to rely on written statements, or obtain audio recordings of interviews conducted during the investigation.

Here are a few of the main considerations for each method.

Audio recordings 

An audio recording is effectively a verbatim record of everything that is said during the interview process. It may be particularly useful to conduct audio recordings during initial witness or party interviews, so that these can be transcribed and used to confirm the evidence which has been gathered.

It is essential that all parties are made aware that interviews will be recorded. This should also assist in setting expectations that nothing said during the interview can be considered "off the record".

Significant advantages of audio recordings include:

  • Simplicity. It is easier for the investigator to conduct an interview without having to take contemporaneous notes. The practice of taking notes can be disruptive to the interview process, breaking both the interviewer's and the interviewee's concentration and the "flow" of the conversation.
  • Creation of an accurate record. Written statements may be considered to be ambiguous or open to interpretation - however an audio recording is fairly difficult to refute.
  • Reinforcing significance of the process. If an audio recording is produced, involved parties can be left in no doubt that an investigation is being taken seriously.
  • Flexibility. If it is difficult to arrange for a party to be interviewed in person, modern technology means that interviews can be recorded by telephone or video. This introduces greater flexibility into the recording process.
It is important to remember however, that it can be easier to contest what is recorded in a transcript, rather than in a written statement which the interviewee has been asked to sign.

written statements

By contrast, a written statement is a document which is produced as a summary of the contents of the interview. Generally, it is produced after the interview, based on notes taken by the interviewer or an offsider. 

Although it is extremely unlikely that every word said or every implied nuance during the interview will be recorded in a written statement, a key advantage of this type of evidence gathering is that witnesses will have the opportunity to review their written statement. The interviewed party can then sign the statement, or refute the contents.

In order to be effective, the statement should be produced as soon as possible after the interview has concluded, while it is still fresh in everybody's memory.

procedural requirements for interviews 

When determining whether an interview should be supported by a written statement or an audio recording, it is important to bear in mind that certain organisations or agencies have policy and/or procedural requirements preferring one method of evidence collection over the other. Further, in the event that a witness prefers not to have the interview recorded, an investigator cannot rely on this method.

The interviewer should give thought both to the personality of the interviewee, and the subject matter of the interview, when determining the best method. If it is intended that the interview proceed on a casual or somewhat informal basis, relying on a recording is likely to be considered overkill.

Audio recording is also reliant on technology functioning properly. In the event that a recording device malfunctions or does not record properly, there is a risk that the interview will not have been recorded at all. This could mean that the entire process needs to occur again - or alternatively, that there is no evidence supporting the interviewing process.

THe importance of flexibility in investigations

Unless company policy dictates one method of evidence collection over the other, this is always a decision that should be made based on individual circumstances.

As is generally the case in workplace investigations, there is never a "one size fits all" approach that can be utilised on every occasion. Investigators must be prepared to make an assessment on which method of evidence collection is appropriate on a case-by-case basis.

WISE investigators have extensive experience in conducting investigative interviews and collecting evidence, whether by audio recording or written statement. If you require established procedures to be followed or would like flexibility during the investigation process, WISE offers investigation services to assist. Additionally, if your organisation is seeking advice and training on interview techniques, WISE offers short courses and resources to upskill your staff.

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

How to Prevent Sexual Harassment in the Workplace

Vince Scopelliti - Wednesday, October 16, 2019

Unfortunately, dealing with allegations of sexual harassment in the workplace is an issue for many employers. Sexual harassment can take many forms, and cases are rarely "open and shut".

Once allegations of sexual harassment or misconduct have been made, they must be appropriately investigated and dealt with. However, prevention is always better than cure.

Let's take a look at employer obligations, the scale of the problem and how employers can help prevent sexual harassment in the workplace.

obligation to provide a safe workplace 

Employers are required by law to provide a safe workplace for all employees. This is enshrined in the workplace health and safety legislation throughout Australia (for example, s19 of the Workplace Health and Safety Act 2011 (NSW)).

Legislation requires employers to provide for physical safety, for example, by preventing unsafe worksite practices which could cause injuries to employees. It also extends to ensuring that employees are protected against physical and psychological harm caused by sexual harassment or assault, and mental harm (such as could be caused by bullying or harassment).

The facts - workplace sexual harassment

A 2018 sexual harassment study conducted by the Australian Human Rights Commission, found that one in three Australian workers claim to have been sexually harassed in the workplace in the past five years. This figure has increased from one in five workers in 2012, and one in ten in 2003. Of course, this may be due to employees becoming more aware of what sexual harassment is and what their rights are in relation to reporting or taking steps to report and prevent it. However, it is still a worrying statistic.

Interestingly, although sexual harassment affects both genders (with 26% of men and 39% of women interviewed reporting experiences of sexual harassment), those most likely to be harassed in the workplace are aged between 18 and 29. Moreover, despite the fairly equal gender split in victimology, the overwhelming majority (80%) of harassers are men.

Tips for preventing sexual harassment in the workplace 

There are a number of strategies that can help employers nip sexual harassment in the bud. These include:

  • Management support. It is essential that all levels of management, but particularly the highest levels of the executive team, embrace an anti-harassment culture. This is particularly important when one considers that, at least anecdotally, there may be a perception that sexual victimisation is a top-down phenomenon. It is important for management to demonstrate that no type of sexual harassment will be tolerated in the workplace. Similarly, the executives of any workplace must demonstrate that they will deal swiftly and appropriately with those who have been found to have engaged in sexual harassment. Ultimately, it is essential that the entire business receives the message that sexual victimisation will not be tolerated on any level. This also means that appropriate conduct by managers should always be encouraged.
  • Creation of a sexual harassment policy. A clear, detailed and easily accessible sexual harassment policy should be created, setting out exactly what the company's position on such harassment is. This should include the specific behaviours that will constitute sexual harassment and will not be tolerated. It must also be widely circulated amongst staff, ideally with a sign-off required confirming that staff have read and understood the policy.
  • Provision of training. Again, this should be rolled out company-wide, and conducted on a regular basis. It is important that there is general awareness, not only of what is defined to be sexual harassment, but an understanding of what rights and remedies are available to those who feel that they have been a victim of this type of harassment.
  • Encouraging a positive workplace environment. By implementing the above steps, a positive environment will be fostered, which will also encourage staff at all levels to be proactive about preventing sexual harassment or calling it out when it occurs.

the need for employer action

In addition to the general requirement to provide safe working conditions for staff, there are other positive obligations on employers in relation to sexual harassment.

For example, in Victoria, the Equal Opportunity Act 2010 (VIC) imposes a positive duty on employers to prevent any sort of sexual harassment from occurring.

Similarly, employers Australia-wide may be deemed to be vicariously liable for the conduct of their employees, if it can be demonstrated that they did not take reasonable steps to prevent sexual harassment (per the Sex Discrimination Act 1984 (Cth)).

In order to protect the business, it is crucial that immediate and appropriate action by way of response to a sexual harassment notification occurs. Training managers and staff about sexual harassment and the company's stance on it is vital.

Sexual harassment in the workplace continues to be a great concern for both employees and employers. Taking active steps and educating staff is crucial in reducing the prevalence of sexual harassment in the workplace. Accordingly, WISE Workplace offers employers training programs to address and investigate workplace sexual harassment, as well as independent investigation services to review such behaviours. 


Supporting Mental Health in the Workplace

Vince Scopelliti - Wednesday, October 09, 2019

Employers understand that it is their responsibility to provide a safe workplace. Yet unlike physical health safety concerns and hazards such as lifting, tripping, sun exposure and dust reduction, many employers find themselves uncertain about how to support the mental health and wellbeing of their staff.

The first and most powerful antidote to this uncertainty is becoming informed. For business owners and managers, this includes stepping up and finding answers about common mental health challenges, causes and implications in the workplace.

Let's take a look at some of these factors, and how employers can support their workers' mental wellbeing.

COMMON TYPES OF MENTAL HEALTH ISSUES 

Thankfully, many mental health disorders have become better understood and less stigmatised. While not perfect, attitudes towards mental illnesses such as anxiety and depression have changed and are better understood now, than even a decade ago.

However, even though there is understanding that 1 in every 4 Australians will experience some form of mental health issue during their lives, the cliches about non-physical illnesses still abound. This can include the idea that all depressed people are sad, or that anxious people just need to learn to calm down. Another painfully familiar idea is that people with a mental illness are inherently unstable.

For less-understood conditions such as bipolar disorder, schizophrenia, OCD, ADD and PTSD, the accommodation of these and the provision of necessary reasonable adjustments where required in the workplace and beyond, remains incredibly low. Between 6-8% of all adult mental illnesses will be one of these mentioned, so there is every chance that a person in your workplace is currently living with such a challenge on a daily basis.

One common misconception is that people with such mental health conditions are somehow defective - and can't or won't work. Yet the reality is that many high functioning people being treated for mood disorders and other chronic mental health conditions are living and working effectively around Australia at this moment.

Step out against stigma

Sadly, Australians who are working despite carrying a mental health issue often feel that they need to work faster/harder/longer/more to prove their worth - and keep their 'problem' quiet. Women, migrants and those with disabilities can certainly understand this kind of historical over-compensation in the workplace. So, when events arise that could exacerbate the situation, employers might only find out once the worst of the damage has already been done. It is vital therefore to build preventative mechanisms, systems and practises for reducing the kinds of workplace behaviours that can both create and exacerbate mental health issues. 

the key contributors to mental health issues 

The key contributors to workplace mental issues include bullying and harassment, excessive workload, repetitive work routines, and stress. The painful and devastating effects of bullying and harassment are difficult for any worker to face. For employees burdened with a mental health challenge, the impacts can be debilitating.

As mentioned, mental illness can often be carried silently in the workplace, largely due to stigma. If a workload becomes excessive, an employee might not speak up for fear of reprisal. Employers need to put in place systems to monitor these burdens. Repetitive, mundane work can also lead to health and safety issues for workers. One problem that was identified in the Industrial Revolution is that humans need variety! And stress is another 'top 5' cause or primary exacerbator of mental health problems in the workplace: uncertainty, discord and constant change can all build up and cause health concerns.  

adverse outcomes for the workplace

Absenteeism is an unfortunate but not surprising outcome when people are not supported in the workplace. For those with an existing mental health issue, workplace stressors such as bullying and harassment can cause  an exacerbation of the illness. At times like these, attendance can be extremely difficult, if not impossible for an unwell worker to maintain. In a similar way, when mental health issues are not supported in the workplace, reduced productivity is the inevitable consequence. To produce the goods and services at a high and continuous level, workers need to feel well and to feel supported, safe and valued. 

employer obligations to health and safety 

It can be somewhat more familiar for employers to think about workplace health and safety only in terms of physical wellbeing. This narrow notion is not correct and a safe workplace also requires understanding and protection of all workers and particularly those with mental health needs. This necessitates taking the time to understand particular mental health conditions more thoroughly, and to take steps towards ensuring a safer and healthier workplace.

Providing safety to employees from direct and indirect mental harm in the workplace involves much more than merely paying lip service to the notion of promoting good mental health and the occasional 'Are you okay'? query. When an employee develops or divulges a mental health issue, the first step is to provide and encourage open communication. Employers can show their interest in learning more about the condition and what might be done to assist the employee at a practical level.

They should make any and all reasonable adjustments required, to support the employee which may include offering or organising flexible working arrangements, if this is something that might assist the worker in question. Anti-bullying policies should be regularly reviewed and strengthened to ensure that the chances of a workplace mental injury occurring are reduced.

An audit to identify a comprehensive suite of risk strategies and processes should be undertaken, to ensure that the workplace is the safest and healthiest that it can be - from any standpoint.

stepping up to a well workplace 

It makes sense for employers to make a commitment to the mental health and wellbeing of staff. As well as producing excellent improvements in absenteeism, reduction in staff turnover, productivity and injury rates, it's also simply the right thing to do. If you'd like more information and education on mental health in the workplace, check out our series of articles on this topic, starting with Mental Health in the Workplace


Outsourcing or In-House Investigations?

Vince Scopelliti - Thursday, October 03, 2019

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations involve potential criminal conduct or there is an actual or perceived conflict, outsourcing may be the best option.

We examine the different circumstances in which investigations might best be outsourced or kept in-house.

outsourcing vs internal 

The key benefit of conducting workplace investigations internally is the ability to potentially deal with a matter swiftly and cost-effectively. The obvious reason here is that staff tasked with conducting an internal investigation, already have an understanding of the internal processes and procedures of the business. Although time away from normal duties is likely to be required, there is no additional cost associated with tasking existing staff to conduct an internal investigation.

On the other hand, depending on the nature of the allegation, existing staff may be lacking in capacity or capability to properly conduct the investigation. This is particularly likely to be the case if the allegations relate to potential criminal conduct which requires police involvement.

In addition, if the allegations are sensitive or have been made against a staff member who would ordinarily be involved in conducting the investigation, it may not be appropriate for the investigation to occur internally.

Whether the investigation is outsourced or conducted internally, it is essential that there are clear delineations as to who will be conducting the investigation. Further, the ultimate investigator must be provided with the applicable investigation policy and procedures which must be followed.

risks of handling an investigation in-house

As noted, there are numerous potential risks of handling an investigation in-house. Chief amongst these is the fact that the internal staff may lack the necessary skills or training to adequately understand the complex nature of the investigation. This could have significant ramifications if there are demonstrable gaps in the process, as this may ultimately invalidate the findings and any final decision which is made.

Having staff without the requisite experience or skills, conducting an investigation may also mean a failure to comply with legal obligations. In the event that the investigatory process results in termination of employment, litigation or other legal action, any failure to duly comply with all the legal and regulatory requirements, may potentially result in an adverse decision for the company.

The possible apprehension of bias in an internal investigation is significant, particularly if the employees who are conducting the investigation have a close personal or professional relationship with the complainant, the respondent or any of the witnesses. In a small company, or in a situation where a member in a senior leadership position has allegations levelled against them, this potential apprehension of bias is even greater.

This could also result in complaints of pre-determined outcomes, where staff involved in the process may argue that the investigation was not conducted in accordance with the principles of procedural fairness. Any relationship (whether positive or negative) between the investigatory staff and the parties involved in the investigation is likely to come under significant scrutiny. This may open up the investigatory team to suggestions that the investigation was not conducted impartially or fairly.

Factors for considering whether to outsource 

Impartiality and transparency in the investigative process are always crucial considerations. In situations where there are especially sensitive allegations or the staff involved are likely to resort to post-investigatory litigation, any potential concerns regarding failures in process or impartiality can be addressed by outsourcing the entire investigation.

Similarly, if time is of the essence (particularly when staff have been temporarily stood down and it is important that the investigation process is concluded in an expeditious fashion) outsourcing the investigation may be the preferable outcome. 

This is because external investigators are able to devote themselves completely to the investigation process, while existing employees will most likely need to continue on with their day-to-day work.

the benefits of outsourcing

Although there is a cost associated with the outsourcing of an investigation, there are added benefits. Investigators with specialist expertise are able to deal with complex matters, and are best placed to provide reports which are more likely to be relied upon by the Fair Work Commission.

The majority of contemporary workplace investigations come with their own set of challenges and complexities. If you do not have the time or resources to conduct an investigation or you require an experienced investigator, WISE offers both supported and full service investigations to best assist.  

Elder Abuse in Care

Vince Scopelliti - Wednesday, September 18, 2019

The most vulnerable members of our society are generally those with disabilities, the very young and the elderly. People who are vulnerable are at greater risk of being abused or otherwise mistreated, especially in residential care facilities. This is currently being made distressingly clear at the aged care Royal Commission. 

We discuss what elder abuse in care looks like, how it can occur and what factors can make an impact on the investigation of alleged abuse.

WHAt is elder abuse? 

"Elder abuse" is an umbrella term, which encompasses a number of forms of abuse, including but not limited to:

  • Physical abuse. This means that a person, often a carer or loved one, is deliberately inflicting physical injury or pain on an elderly person. Importantly, this also includes the use of physical and chemical restraints.
  • Psychological/emotional abuse. It is difficult to define exactly what constitutes emotional abuse. However, examples include making threats or intimidation, humiliating the elderly patient, failing to provide access to services (such as restricting access to clean clothing or washing facilities) or telling the patient that they have dementia when they don't.
  • Social abuse. This includes restricting a patient the right to see or interact with their family or loved ones.
  • Financial abuse. This is one of the most common types of elder abuse. It involves mismanaging, improperly using or otherwise dealing dishonestly with an older person's financial assets. Examples include forcing the elderly patient to provide bank details so that the carer can use them for their own purposes. Another example is forcing the patient to sign over money or goods in their will.
  • Sexual abuse. This is dealing with an elderly person in a sexual way without consent. It ranges from speaking about sexual activities to inappropriate sexual contact.
  • Neglect. Another very common type of elder abuse, this involves withholding basic human rights such as food, shelter, hygiene or medical assistance from the patient.
Like many other types of abuse, elder abuse is significantly under-reported. This is because of shame, fear of reprisal, or in certain circumstances the elderly patient not understanding that they are being abused. However, according to a report published by the Australian Institute of Family Studies, up to 14% of older Australians may be subjected to elder abuse.

In late 2018, a Royal Commission into Aged Care Quality and Safety was announced. Amongst its terms of reference is the specific requirement to consider poor care, including "mistreatment and all forms of abuse". An interim report commenting on initial findings is due to be published by 31 October 2019.

WHAt are the signs of elder abuse? 

Determining whether an elderly Australian in care is the victim of abuse can be extremely difficult. However, some key factors which can cause a suspicion of abuse include:

  • Sudden personality changes such as unusual anger, anxiety, fear or depression;
  • Obvious poor personal hygiene;
  • Changes in eating and sleeping patterns;
  • Changes in social activity and interaction such as becoming non-verbal, becoming isolated and lack of motivation;
  • A failure for simple medical conditions to clear up as expected (indicating maltreatment);
  • Inexplicable disappearance of money or possessions; and
  • Visible signs of injury or trauma.

Who is most at risk? 

Although potentially all older Australian in residential care facilities are at risk, those with mental health issues are at greater risk of being abused. This is because the victim may be confused themselves, about whether the abuse is even occurring. Further, even if the victim does make a complaint, those with organic brain issues and diseases or significant mental health problems may not be believed.

Challenges of an investigation 

Investigations into elder abuse are challenging due to a number of different factors. These include low reporting rates and difficulty in obtaining accurate reporting and evidence about the specific details of abuse. There are unlikely to be third party witnesses because abuse can and often does, occur in the victim's private room. Victims may also be poor witnesses due to difficulties with memory and recall or other mental health illnesses and conditions.

The Royal Commission into Aged Care Quality and Safety has revealed how the treatment of the elderly in aged care facilities can go unnoticed. If you require assistance into the investigation of elderly abuse complaints in a care setting, contact WISE to discuss your needs, and how we can help. Alternatively, we provide Investigating Abuse in Care training.