Improving Your Investigative Interviewing Skills

Vince Scopelliti - Wednesday, March 21, 2018

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

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

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

THE interviewing basics

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

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

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

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

to audio record the interview or not? 

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

the peace-ful investigative interview

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

Five key concepts make up the acronym:

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

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

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

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

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

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

suggestibility and free recall

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

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

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

Managing Cultural Diversity in the Workplace

Vince Scopelliti - Wednesday, February 21, 2018

Organisations are no doubt aware of the need to comply with anti-discrimination legislation, but actively encouraging cultural diversity in the workplace is becoming increasingly important - it can offer potential benefits far beyond simple compliance with the law. 

Let's take a look at some of the benefits, and how organisations can manage cultural diversity. 

THE definition of cultural diversity

According to Diversity Council Australia, cultural diversity is "the variation between people in terms of how they identify on a range of dimensions, including ancestry, ethnicity, ethno-religiosity, language, national origin, race and/or religion".  

Having a culturally diverse workplace simply means that you employ staff with a range of different backgrounds.

why is cultural diversity important?

Staff members from a variety of cultures offer different perspectives, knowledge and experience, which can be very valuable to organisations. 

Some of the benefits of cultural diversity include:

  • Thanks to the internet, many businesses now have clients spread out across the globe. Having a culturally diverse staff can help facilitate stronger relationships with these clients, potentially providing a competitive advantage and even boosting market share. 
  • Having a variety of different backgrounds and experiences in your workforce can encourage innovation and 'out of the box' creative thinking and decision making. 
  • Fostering a tolerant, inclusive workplace is important from an employee point of view - staff are likely to be happier and more productive working in an environment where it is clear that everyone is respected for their differences.
  • A diverse and inclusive workplace can also help attract and retain top talent. 

So how can organisations manage diversity?

 Some tips for managing diversity include:

  • Celebrating regular diversity days to recognise and support differences in your employees. However, it is important to be aware of cultural sensitivities, and avoid the appearance of tokenism. 
  • Creating policies that support an inclusive environment for people from a range of cultural backgrounds and set out what behaviour will be regarded as discriminatory or prejudiced. 
  • Communicating these policies to all staff members.
  • Imposing penalties in circumstances where inclusion policies are not being followed. 
  • Making sure that those in management positions set a good example for inclusive behaviour.
  • Being clear about what each staff member is accountable for, so everyone is treated fairly. 
  • Offering all staff training in cultural awareness and understanding. This could take the form of seminars or workshops, and perhaps including first-hand accounts of what it's like to be from a particular cultural background. 
  • Ensuring that the business has some flexibility to fit in with cultural needs. For example, a business with a high number of Muslim employees may wish to offer a prayer room, or those with Indigenous members of staff may wish to acknowledge the traditional owners of the land prior to formal meetings or events. 
  • Being flexible enough to allow employees from different backgrounds to take time away for important religious and cultural rites.

Research has found that business performance improves when employees feel highly included and think their workplace is strongly committed to supporting diversity. 

If your workplace is having issues with managing diversity, WISE Workplace provides a number of services to assist you, including cultural surveys and mediation.

Evolving and Moving on from a Workplace Investigation

Vince Scopelliti - Wednesday, February 14, 2018

Most employers are aware of the importance of conducting workplace investigations to deal with complaints or allegations. But what happens after the investigation is over?

There may be a sense of disconnectedness, embarrassment, awkwardness or even anger amongst staff, particularly if disciplinary action has been taken or an employee has left the organisation. 

Although it is no doubt tempting to close the report on a workplace investigation and just move on, there remains a lot of outstanding work to be done before the job is truly over.

The report is finalised, but now what?

There are a number of steps employers can take to ease the way post-investigation. 

These include:

  • Touching base with all parties

The person who was the subject of the investigation would have been notified of any findings and consequences. But it is equally important for employers to touch base with any complainants, whether they are internal, external or on leave, and explain that the process has been finalised. Although exact outcomes may not be disclosed due to privacy or confidentiality reasons, it is important for employers to demonstrate that complaints have been taken seriously and duly investigated. 

  • Requesting constructive feedback

Although it is unlikely to be appropriate to ask the complainant or the respondent to comment on how they thought the investigation was handled, witnesses and other parties engaged in the process can be approached for feedback. This might include whether they felt the investigation process was transparent and fair, whether there is anything else they want to report about the company, and whether they felt there was sufficient communication throughout the process. 

  • Reviewing the actions of key decision-makers

This is a fantastic opportunity to consider the way your key decision-makers have behaved. This includes the quality of their decision-making, the steps taken by them to control the situation, and perhaps their involvement in the initial complaint. It can also provide an opportunity to observe how those in senior management interact with each other, and perhaps encourage changes to the chain of reporting and command.

  • Identifying any systemic or endemic problems

Perhaps this is not the first time a complaint of a similar nature has been made, or the same person's name keeps popping up. Maybe the investigation has identified a shortcoming in procedures or policies in the business. Employers need to identify any systemic issues and implement strategies to deal with them as soon as possible. 

Rebuilding the team post-investigation

Dealing with any uncertainty or disharmony and rebuilding your team is of primary importance. In the aftermath of an investigation, employers need to:

  • Consider whether the complainant and respondent can keep working together. Even if the allegations are not substantiated, it should be assumed that any future working relationship is likely to be strained, if not impossible. Careful consideration should be given to shifting work arrangements, ideally without either party feeling aggrieved by the change. If the parties must continue working together, mediation can help by enabling both parties to air concerns and come up with ground rules. 
  • Offer counselling to all affected parties, whether internal or external
  • Instigate a training program or a refresher course for all staff focusing on the behaviours reviewed in the investigation
  • Facilitate team-building exercises. Team-building exercises can help staff resolve any conflict they may feel, give them an opportunity to get to know each other better and to forge new connections in the wake of an investigation. This can be particularly important if a co-worker has been terminated. 
  • Seek feedback from your employees as to what steps could be taken to improve the workplace culture in general. 

Don't limit the investigative process to a band-aid solution. Once the immediate issue has been addressed, utilise the learnings to strengthen your team going forward. 

If you need effective resolution of workplace disputes after an investigation, WISE Workplace has a number of qualified and experienced mediators who can help your workers to resolve any issues post-investigation. 

How Surveys Can Uncover Secrets of Your Workplace Culture

Vince Scopelliti - Wednesday, February 07, 2018

Employers are becoming increasingly aware of the importance of a positive workplace culture. A workplace culture which helps foster happy employees can increase productivity, reduce absenteeism and have a positive flow-on effect to customers. 

But just how can senior management get staff, particularly junior staff, to open up about how they feel? One excellent and very popular method is by engaging in workplace culture surveys.

what is it?

A cultural survey is an important diagnostic tool to uncover the current health of an organisation, and is a way for management to determine strengths, weaknesses and important strategic areas of focus for the business. 

Using surveys, employers can establish whether they are on the "same page" strategically as their employees, if there are any concerns regarding bullying or unsafe workplace practices, issues affecting health and wellbeing, and what the business is doing particularly well.

Cultural surveys are frequently administered externally, and participants are guaranteed anonymity. This is an essential part of the process, as it permits staff to feel as though their responses, whether positive or negative, can be provided without fear of reprisal or criticism. 

They require a number of specific questions to be answered. The responses are then tallied and data is extracted and analysed in the form of a report which is generally presented to management or the board.

when to do a cultural survey?

The best time to introduce an initial cultural survey is when the senior leadership team has already begun implementing a process of cultural change, whether that involves becoming an employer of choice to potential new talent or retaining existing talent. 

Once a cultural survey has already been completed in the business, it is a good idea to repeat them regularly, perhaps every two or three years, for management to be able to assess how the business is performing against previous years and whether a change in direction may be required. 

what questions should not be included?

Part of focusing on improving a workplace culture also involves changing the way in which the business recognises and rewards exceptional performance. This mental shift should occur before the cultural survey is introduced - otherwise the business risks getting answers to the wrong sort of questions. 

Those questions include ones that do not consider what truly makes employees happy, but instead focus on factors such as remuneration, perks (such as professional coffee machines) or flashy offices. While these can be an important component of making an employee feel valued or happy in their role, they are rarely a determining factor in whether an employee truly feels committed to a business.

so what are the right questions?

Instead, employers should ensure that cultural surveys focus on questions such as:

  • Do you understand the company's goals, and your role in achieving those goals?
  • Do you feel as though your role is important in achieving the company's objectives?
  • Do you understand the company strategy and agree with it? 
  • Do you feel that your team is collaborative?
  • Do you feel that you have the skills necessary to perform your role, and if not, why not?
  • Is there anything in the workplace preventing you from performing your role?

Employers may also wish to ask staff what improvements they would make, given the chance. This can be a very useful tool in implementing a new strategic direction.

the benefits of a cultural survey

Perhaps the greatest benefit of a cultural survey is that when employees feel like they are connected to the "bigger picture", they are more invested in the business and feel part of a team. 

This in turn helps improve their reliability, performance, desire to participate and willingness to sacrifice (if necessary) for the good of the business. The sense of collaboration created by a cultural survey is an invaluable asset to the business. 

A cultural survey may also bring up issues which have not previously been identified by management, such as endemic bullying or a toxic workplace.

how to get started

These few simple steps can help employers get started on conducting a survey.

  • Be clear about the purpose of the survey
  • Ensure you offer all team members the opportunity to participate
  • Decide whether a face to face, paper or electronic survey is appropriate or even a combination of all three if you have high staff numbers
  • Decide on the timeframe for responses
  • Formulate the questions and keep it simple - for example avoid asking two things in the same question
  • Analyse the results - don't take the results on face value, for example a low response rate to a particular question may make the results meaningless
  • Follow up on the survey insights and take appropriate action

WISE Workplace is here to support your organisation. If you have a concern about a toxic culture, or staff are making complaints, we are well placed to help you conduct a cultural survey.

2017: The Year Sexual Harassment Claimed the Public Spotlight

Vince Scopelliti - Wednesday, January 03, 2018

It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers. 

From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light. 

There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the 'year of the Weinstein' is that we don't forget some of the less obvious - but no less damaging - manifestations of sexual harassment in the workplace. 

The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example - a workplace might tacitly support that 'touchy feely' manager, or the 'jokey' worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised. 

Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.

Key definitions of sexual harassment

The Federal Sex Discrimination Act contains the following definition of sexual harassment: 

28A - Meaning of Sexual Harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engaged in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Importantly, 28A(1)(b) provides for the broader "unwelcome conduct of a sexual nature." 

Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as 'just mucking around' or 'a harmless Aussie joke' might in fact fall squarely within the meaning of sexual harassment. 

As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous 'reasonable person'. 

global reach - the #metoo campaign

We watched the tsunami of the '#metoo' campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. 

Both women and men have been subjected to unacceptable words and acts - often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour - as the matter of Kordas shows. 

Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.

THE extreme and the ugly...

As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood's Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation's 'gardening guru'. 

Yet it is arguable that such extreme cases do little to assist the public's understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017. 

The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are - sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge. 

risk of ignorance 

When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed. 

Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims - not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.

workplace vulnerabilities 

Workplaces where rank and hierarchy exist - such as emergency services and the armed forces - can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police [2017] NSWIRC 1001, the Commission noted that part of the problem with the senior constable's lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour. 

Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.

workplace sexual harassment policies crucial

The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment. 

Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours. 

The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities - reputation.

strong but subtle RESPONSES

2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace. 

Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.

Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

When Gender is Irrelevant: Male-On-Male Workplace Harassment

Vince Scopelliti - Wednesday, November 08, 2017

Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case - sexual harassment can be perpetrated by anybody towards anybody. 

A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender. 

The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment. 

Inappropriate behaviour

In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent. 

The behaviour complained of by the worker included:

  • Being told by his employer that workers were similar to racehorses because 'they need a pat on the bum to go faster'.
  • Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very 'close'. 
  • Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer 'like[d] being slapped on the bum'.
  • Humiliation by the trainer when he threw a hair clip onto the ground, in the worker's opinion, because the employer wanted to see him bend over. 
  • The trainer complaining that the worker had incorrectly clipped a cape onto a client
  • Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because 'you're my bitch'. 
  • Upon complaining to his employer and asking why he was referred to as the salon 'bitch', being told 'I used to work in a restaurant. All the boys used to grab me by my boobs'. 
  • Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way. 
  • Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands. 

The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed. 

The history of complaints

The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job. 

However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses. 

At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment. 

The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber. 

Findings of the tribunal

Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans. 

The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a 'bitch' and a 'gay couple'. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed. 

The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker's complaints. 

The worker was awarded compensation comprising:

  • $5,000 in general damages for the sexual harassment by the employer
  • $10,000 in damages for the trainer's sexual harassment
  • $15,000 for victimisation

As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services. 

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.

    'I Was Sent to Coventry' and Other Social Bullying Techniques

    Vince Scopelliti - Wednesday, October 25, 2017

    When we think of bullying, the clichés of schoolyard taunts might spring to mind. Yet as we learn more about the wide-ranging techniques of bullying, it is clear that this deeply complex phenomenon can be hard to pin down. 

    For example, being ignored, or made an outcast in any situation - 'sent to Coventry' - can be highly distressing. This insidious brand of social bullying unfortunately arises in many workplaces, causing pain and anxiety for victims.

    what is bullying? 

    Bullying can be physical (including hitting or even destroying property), verbal, cyber (such as bullying on social media), and social. 

    A person being 'Sent to Coventry' is a form of social bullying. 

    So what do we mean by a person being 'Sent to Coventry'? Historically the phrase appears during the English Civil War when prisoners would be sent to the eponymous North-Western City for punishment, and experienced isolating treatment by locals. But how does this tend to manifest as workplace bullying? 

    Picture this: on the surface, the workplace looks pleasant. There is occasional chatter and people seem content. But look closer - on Friday lunch excursions, one person appears to be ignored by the others as they leave. In meetings this person's colleagues seem to ignore their ideas, or quietly mock them when they have the courage to speak. They have also mysteriously been kept off the roster except for a few skeleton shifts... and so on. 

    These are classic moves of ostracism as a weapon for workplace bullying. Left unmonitored, such behaviour can lead to severe stress and mental health problems for the outcast employee. 

    The worker might originally have committed a 'sin' in the eyes of co-workers - perhaps told management about colleagues misconduct, or appears to be given special treatment. On some level, one or more workers have judged this as being unforgivable, leading to a long and toxic period of unrelenting silence, mockery and isolation.

    bullying women, bullying men

    What are the gender differences when it comes to social bullying? Unfortunately, this more covert behaviour seems to be a particular feature of female-to-female bullying

    The phrase 'deafening silence' sums up the effect of this form of workplace bullying, where a worker is deliberately placed on the outside of a work group dynamic by one or more of their colleagues. 

    The mechanisms are often subtle, and certainly challenging for management and workplace investigators to detect or prove. Yet by their very nature, stealthy and outwardly ambiguous bullying tactics in the form of ostracism and freezing-out can be painful and injurious for the victims of such attacks.

    Men can also engage in subtle forms of social bullying, but are more likely to add overt actions as they bully a fellow worker. Particularly where rank or divisions enable such bullying, male offenders might sabotage the atmosphere and opportunities for targeted colleagues, later escalating to overt physical and verbal abuse. 

    pulling rank - the hierarchical workplace

    In the armed forces, emergency services and police, there is an opportunity for those in particular positions to 'close ranks' as a form of workplace bullying. For the victims of such behaviour, equipment can mysteriously go missing and vital operational information can 'somehow' bypass the bullied person. Aggressive taunts are also more likely in rank-based organisations.

    questioning what is true

    Most 'quiet' forms of workplace bullying seem to evaporate when management or a workplace investigator shows up. Also, consummate 'Coventry' bullies will sometimes alternate their attacks with neutral or even pleasant exchanges with the bullied worker. 

    The victim is left on the back foot, unsure of what is real or imagined and often quickly becoming susceptible to both functional and mental decline as a result. Such 'gas lighting' attacks often cause the most long-term harm to a worker. 

    Investigators must be vigilant in exploring alleged workplace bullying of this type. Common mistakes in the field can be when those investigating warm to often-extroverted perpetrators; bullies are masters of manipulation and can at times seem charming.

    Conversely, the worker claiming bullying might appear nervy and unclear in their communication - perhaps even a little 'odd' compared to other workers. Rather than using this as a basis for dismissing the allegations, the history and behaviours behind all interviews must be carefully collated and compared with utmost objectivity. Indeed, the unusual presentation of a worker might in fact indicate a reaction to the effects of a covert system of workplace bullying.

    Gathering evidence from multiple witnesses will often assist in identifying if there have been any patterns of behaviour from the perpetrators. 

    When it comes to claims that a worker has been 'Sent to Coventry' and subjected to social workplace bullying, it is important to approach the ensuing workplace investigation with care. 

    WISE Workplace is happy to assist you with any queries you might have regarding the right way to investigate any alleged workplace bullying incident. We offer unbiased, professional investigation services, carried out by a qualified and experienced team.

    Professional Distance and Social Media

    Vince Scopelliti - Wednesday, October 11, 2017

    Maintaining professional distance in the workplace can be challenging at the best of times. There is a very fine line between managing interpersonal relationships, ensuring that colleagues and co-workers get along with each other, and developing such close relationships that potential conflicts of interest or social problems arise. 

    This juggle has become even more difficult with the advent of social media, which can blur that fine line, and complicate relationships in a whole new range of ways.

    Types of social media platforms   

    Social media has evolved from the early networks, like MySpace or MSN to a whole range of different platforms. There are now professional networking sites, such as LinkedIn, image-sharing sites such as Instagram or Snapchat (where images self-destruct after a certain time) and platforms such as Facebook, Twitter, Google and Whatsapp etc. for social interaction. 

    positive use of social media in the workplace

    As with any other tool, there are some positive uses for social media in the workplace. Professional networking sites such as LinkedIn, can be a helpful way to connect with likeminded professionals, or introduce co-workers to other people whose interests may be professionally aligned. 

    Twitter, LinkedIn or Facebook allow businesses to share news or promote themselves, or permit staff members in different geographical locations to stay in touch. Indeed, many large companies use personalised social media tools such as Yammer to enable staff throughout the organisation to communicate internally. 

    when is social media use inappropriate?

    Unfortunately, social media can also be misused in the workplace context. In many situations, it is not colleagues being 'friends' on social media that is the main issue, but rather the dissemination of too much information, inappropriate content or the sharing of information with an inappropriate audience. 

    It is easy to over-share on social media, forget who the information is potentially accessible to, and the fact that it is often permanent once it is shared. 

    Types of inappropriate social media use may include:

    • Posting negative or offensive comments about co-workers, employers, or the workplace (especially if the person posting the comments does not consider who their contacts and potential readers include)
    • Sharing excessively personal information, either about themselves, or other people, which removes professionalism or an ability to maintain a professional distance from co-workers. 
    • Posting comments which could potentially negatively affect the reputation of the employer or co-workers
    • Sharing confidential information concerning clients, co-workers and pending or current contracts/agreements
    • Creating circumstances whereby colleagues may start to dislike each other. For example, it is likely to be completely irrelevant to a working relationship whether a colleague supports the current Prime Minister, or has a particular religious affiliation, but sharing polarising views on social media could cause work relationships to fracture. 

    Walking the line

    The most significant misuse of social media in the workplace arises from the potential for the professional lines to be blurred - including where inappropriately close, possibly sexual or romantic relationships form. This is especially important in situations where there is a power imbalance - for example, between a manager and a staff member, a teacher and a student, or a treating doctor or psychologist and their patient. 

    In these circumstances, it is likely best to avoid a social media 'friendship' completely, in order to ensure that the appropriate professional distance is maintained.

    why workplaces need social media guidelines

    Employers should have clear policies in place which set out the rules and obligations for employees interacting with colleagues or mentioning the workplace on social media, and the consequences for a breach of the policy. 

    A coherent and well-communicated policy can prevent or limit the fallout from many of the issues associated with a failure to maintain professional distance. 

    If you are seeking advice on implementing a social media policy, or you require a workplace investigation into a potential conflict of interest or inappropriate relationship or misuse of social media, we can help. WISE Workplace offers both full and supported investigations. You can also find out more about the issues involved in maintaining professional distance here.