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.

    Grooming, or an Error in Judgment?

    Vince Scopelliti - Wednesday, October 18, 2017

    No employer likes to think that one of their staff members might deal inappropriately with a client, or even could possibly commit a criminal act. But all employers need to be aware of the potential for professional boundaries to be crossed in these ways. This is particularly important for organisations that work directly with vulnerable members of society, including children, the elderly, and the disabled 

    We take a look at when certain behaviours might be deemed to be significant errors of judgment, or in the worst-case scenario, grooming.

    The definitions 

    In NSW, the Child Protection (Working with Children) Act 2012 sets out the requirements for people who work with children. It defines misconduct involving children to include the action of 'grooming'. 

    Similarly, Section 25A (1) of the Ombudsman Act 1974 (NSW) considers 'reportable conduct' to include: 

    • Any sexual offence or misconduct committed against, with or in the presence of a child, including child pornography. Grooming, sexually explicit comments and other overtly sexual behaviour, as well as crossing professional boundaries are included in the definition of sexual misconduct. 
    • Any assault, ill-treatment or neglect of a child.
    • Any behaviour, which causes psychological harm to a child, even if the child agreed to that behaviour. 

    In NSW, the offence of grooming is set out in Section 66EB of the Crimes Act 1900. It is defined as behaviour by an adult who exposes a child to indecent material or provides a child with an intoxicating substance with the intention of making it easier to procure the child for unlawful sexual activity. 

    A child is defined as being under the age of 16, however the maximum penalty for the offence of grooming is higher (up to 12 years), if the child is under 14. This is very similar to the definition contained in the Commonwealth Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010

    By contrast, in Victoria the Crimes Amendment (Grooming) Act 2014 defines grooming as 'predatory conduct' engaged in to prepare a child for participation in sexual activity at a later time. What is relevant in Victoria is the intention in the interaction. 

    For example, even if nothing sexual is ever explicitly discussed or implied, shown or raised, the conduct can still be considered 'grooming' if the person befriends a child or their parent with the intended, hidden purpose of later pursuing sexual activity. 

    grooming children - examples of common behaviours

    Specific instances of grooming are likely to differ depending on the circumstances, but examples could include:

    • Creating a belief in a child or group of children that they are in a special relationship with the 'groomer', whether by participating in particularly adult conversation or providing 'special' gifts or activities. 
    • Permitting testing of boundaries, such as engaging in adult or inappropriate behaviours, including jokes, sexual displays or nudity in front of a child. 
    • Establishing an inappropriate relationship outside of work, including inappropriate or excessive text, email or social media contact, or developing unnecessary and close friendships with family members. 
    • Targeting children who are particularly vulnerable due to disability, history of trauma or previous emotional, physical or sexual abuse.  

    a case in point

    A recent decision of the Victorian County Court highlights some of the difficulties in determining whether behaviour constitutes grooming, or simply a person creating a bond because they want to help out a vulnerable child. 

    In this case, reported by The Age, a troubled student was mentored by a teacher in his mid-20's There was never any sexual contact between them, but the teacher provided numerous gifts and engaged in regular excursions with the pre-teen boy, eventually turning into 'sleepovers'.

    The accounts of the boy suggest that the sleepovers included physical contact and sexual discussion, which was completely denied by the teacher. Although the teacher was ultimately acquitted of charges, his life and livelihood were destroyed.  


    Another, less well-known example of grooming involves a specific type of behaviour, by carers or medical staff, towards elderly patients. These actions are designed to foster unnaturally close relationships between the caregiver and the client, with the intention of obtaining financial gain. This could occur through:

    • Traditional theft, such as taking money or items from a client's room.
    • Misusing financial information, such as PIN numbers or cheque books, to take out unauthorised funds. 
    • In extreme cases, procuring powers of attorney, or ensuring inclusion into wills in order to obtain a significant portion or the entirety of a financial estate. 


    A finding that behaviour constitutes grooming, as opposed to a simple error of judgment, is likely to depend on the intention and the degree of the wrongdoing. Circumstances, which could contribute towards a finding of grooming include:

    • Whether an action is a 'once off' or a repeated pattern. For example, one ill-considered movie outing between a teacher and a student, or a series of meetings outside school hours. 
    • Whether there is any ulterior motive, particularly a sexual one, or if a decision was simply made rashly.
    • Whether the person in a position of authority intentionally pursued or sought out a relationship with the vulnerable person. 
    • Whether there may be a reasonable alternative explanation for the behaviour.
    • Whether there was a request/coercion for the vulnerable person to keep any aspect of the relationship secret.
    • Whether there was repeated conduct despite previous warnings from supervisors/managers. 

    why codes of conduct are important

    If your organisation works with vulnerable persons such as children, specific Codes of Conduct, which set out the professional boundaries expected between staff and clients, and the consequences for any breach of these, can be very useful. 

    If you require assistance drafting a Code of Conduct, which meets all of your organisation's needs, or have received a complaint that professional boundaries may have been crossed in your workplace and need to undertake a workplace investigation, contact WISE Workplace. We offer full or supported investigation services and can also assist with investigation training, awareness training.

    Codes of Conduct and Different Professions

    Vince Scopelliti - Wednesday, October 04, 2017

    A Code of Conduct sets out the 'golden rules' or guidelines in which employers and industry bodies codify acceptable standards of behaviour in the workplace. 

    Individual businesses can develop their own Codes of Conduct applicable to their specific interests. Many professional bodies also implement standardised Codes of Conduct covering behaviour which is perceived as being a particular risk within that type of industry. 

    Why is a code of conduct important?   

    A Code of Conduct provides employees with clear parameters for what is appropriate and inappropriate at work. 

    The precise content of a Code of Conduct depends on the nature of the industry or business to which it applies. For example, the legal industry imposes strict requirements on confidentiality and integrity, which may be unnecessary in other industries. 

    One important aspect of a Code of Conduct is ensuring specific guidelines are in place regarding professional distance and potential conflicts of interest that may arise, whether actual or perceived. 

    Acceptable behaviour under these guidelines is likely to differ significantly depending on what is appropriate within a certain profession. For example, while a general practitioner or a physical therapist needs to have physical contact with their clients and patients in order to perform their duties, there is a completely different expectation on teachers, where specific types of physical contact can be inappropriate, in breach of the Code of Conduct or can even constitute reportable conduct. 

    The Code of Conduct should also address complaints handling and the specific disciplinary response for conflicts of interest and other breaches of the Code.

    dealing with vulnerable persons and a 'special class' of clients

    In addition to avoiding the more obviously inappropriate behaviours such as perceived sexual or excessive physical contact, professional Codes of Conduct have regard to the type of clients or customers their adherents are likely to encounter. 

    In the spheres of nursing, teaching, social work and psychology, practitioners will almost inevitably deal with vulnerable people. Indeed, the nature of the work and the clients' vulnerabilities may mean that they form inappropriate attachments or relationships with professional staff. Guidelines for dealing with these types of situations, including appropriate reporting requirements and the potential for independent observers to be used, are necessary parts of the Code of Conduct for these professions. 

    In a similar vein, aged care, legal or financial service providers must ensure that there cannot be any misconception of inappropriate behaviour constituting potential financial abuse or conflict of interest, such as putting undue and improper pressure on a client to make a financial bequest or confer a financial advantage.

    Abuse of power

    Explicit Codes of Conduct governing conflicts of interest and biased behaviour are vital in professions that are open to abuse of power. For example, there is considerable potential for corruption, fraud and conflicts of interest to arise in the case of staff employed in Local Government or in procurement, public servants and police officers. 

    a case in point

    David Luke Cottrell and NSW Police [2017] NSWIRComm1030 is a recent example of a breach of a Code of Conduct by a police officer, which ultimately resulted in his dismissal. Constable Cottrell was dismissed from his position after he received payments for tipping off a local tow truck driver about the location of motor vehicle accidents. In essence, Constable Cottrell was passing on confidential information and in doing so, directly created a conflict of interest for himself, and also provided an unfair commercial advantage to the tow truck operator. 

    Given that by the very nature of their work, police officers ought to be paragons of moral behaviour, this arrangement clearly breached appropriate professional ethics. This was notwithstanding the police officer's argument in response to his dismissal that he was trying to be 'effective' by clearing accident sites and did not realise that the leaked information was controversial. 

    Ultimately, it was held that he had breached the appropriate Code of Conduct by failing to meet the expected high standards of behaviour of a police officer, and did not appreciate the gravity of his misconduct, failed to protect the confidentiality of information and did not carry out his duties impartially.

    Determining whether a breach has occurred

    Conflicts of interest and inappropriate behaviour can occur inadvertently, and are not always a result of intentional wrongdoing. For this reason, it's important that Codes of Conduct are effectively communicated to staff, and that the penalties for breaches of the code are clearly defined. 

    If you suspect that one of your employees may have breached an applicable Code of Conduct, it will become necessary for you to conduct a workplace investigation. WISE Workplace can provide full or supported investigation services to assist you in determining whether any breaches have occurred. 

    To find out more about professional distance and conflicts of interest, check out our series on this topic. 

    Professional Distance and Conflict of Interest at Work

    Vince Scopelliti - Wednesday, September 20, 2017

    During the seventies and eighties, organisations started to realise that the improper use of power and authority and undeclared and/or ineffectively managed conflicts of interest, posed a significant risk to their integrity and public trust. 

    The requirement for ethical business dealings focuses the spotlight on conflicts of interests and the factors involved in creating the perception of conflicts of interest in the workplace. 

    It can be difficult to maintain a suitable professional distance with colleagues, subordinates and suppliers, particularly if a significant friendships have been formed outside the workplace. There is an increased risk when managers, employees and co-workers communicate on social media. Employers must also be vigilant about the risks of inappropriate levels of professional distance with clients or colleagues, especially in circumstances where such behaviour may lead to, or can be perceived as, grooming of vulnerable persons. 

    When it comes to conflicts of interest, it is best to completely avoid any behaviour, which may result in the creation of a real or perceived conflict of interest. For this reason, many professions address this specifically in their Codes of Conduct or may draft specific conflict of interest policies, which set out expected and appropriate standards of behaviour. 

    In our planned six-part series we'll unpack the key elements of professional distance and conflict of interest, from maintaining professional boundaries to determining the difference between a lapse of judgement and grooming. 

    breaching professional boundaries   

    According to Dr. Anna Corbo Crehan, from the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, questions of professional distance occur when two or more people involved in a professional relationship also have an additional relationship, such as one based on love, attraction, friendship or family. "So then, professional distance is the space a professional must keep between their professional relationship with another, and any other relationship they have with that person. By keeping this space, a professional can fulfil their professional and personal obligations, and be seen to do so, in a way that is impartial and/or non-exploitative in regard to the other in the relationship", she says. 

    Breaching professional boundaries can also refer to the failure to manage conflicts of interest. A particularly close relationship between co-workers, especially those involving persons in a position of authority, may create the perception (whether real or imagined) of inappropriate work-related benefits or advantages being bestowed on a close associate because of the friendship. 

    The most common types of conflict of interest are financial, such as where a monetary advantage is bestowed or a financial saving made, and personal, where a clear benefit is provided to the recipient such as a promotion or an opportunity for advancement or training and development. 

    The best way to avoid perceived conflicts of interest is by maintaining clear professional boundaries, especially by those in a position of power, such as employers, supervisors, managers, or instructors. In extreme circumstances it may be prudent to completely avoid forming any relationships with colleagues outside of work.

    codes of conduct and different professions 

    Many professions abide by specific Codes of Conduct, which set out and govern acceptable standards of behaviour in their specific industry and provide comprehensive guidelines as to what is considered appropriately maintained levels of professional distance in that industry. 

    For example, an inappropriate level of closeness may mean one thing in the context of a school teacher, and another thing in the context of a physical therapist. Professions such as nursing, teaching and social work need to have an additional emphasis on protecting vulnerable persons (such as children, the elderly, the disabled, of the mentally ill) from unscrupulous persons of the effects of inappropriately close relationships. 

    In other professions, such as aged care or legal services, it is vital that professional distance is maintained to avoid any perception (whether actual or imagined) of financial abuse and conflicts of interest, when a client confers excessive financial benefits on the service provider. 

    One recent example of a breach of an industry specific Code of Conduct involved a police officer who sold confidential information and provided accident locations to a tow truck driver, who gained a financial advantage from arriving on the scene ahead of competitors. 

    On many occasions, a failure to maintain an appropriate professional distance occurs inadvertently or without any intentional wrongdoing. While it is beneficial for colleagues to develop good relationships with their co-workers, it is important for all employees to be able to maintain a perception of professional distance so that it does not appear as though they are incapable of making impartial business related decisions. 

    professional distance and social media 

    In the modern workplace, social media has become a virtually omnipresent phenomenon. With the advent of many different types of social media platforms, including LinkedIn and Facebook, there are many opportunities for workers to remain connected. 

    Most employers recognise that social media is a platform that is both complimentary to, and additional to, other methods of communication and engagement used by them. Most employers also understand the beneficial networking functions of social media, particularly in the case of LinkedIn, however there is a far greater risk of boundaries being crossed or lines being blurred when communicating through social media. 

    There can be particular difficulties in utilising social media when dealing with vulnerable people such as students, the disabled or persons with mental health issues. As a general rule, it is inappropriate for work colleagues or employers to share overly personal information or material on social media. Most workplaces have a clearly set-out social media policy. It is important that employees are made aware of its contents and application and are encouraged to use social media in a responsible, reasonable and ethical manner, in accordance with the employer's Code of Conduct. 

    Broadly, if content is critical of a colleague, affects his/her reputation, is personal, hurtful, potentially embarrassing to a co-worker, or otherwise inappropriate, it could easily breach the requirements of professional distance.   

    determining grooming, or an error of judgement. 

    An important aspect of maintaining professional distance involves taking steps to avoid situations where it could be perceived that 'grooming' is taking place. This is essential not just in the context of children, but other people who are deemed to be vulnerable, including the elderly, those with disabilities, or those involved in situations where there is a power imbalance. 

    The act of grooming is a criminal offence in many Australian states. It is a term which generally refers to deliberate and sustained contact with a vulnerable person in order to obtain their trust and prepare them to participate in the groomer's intended purpose, which may be sexually, financially or otherwise motivated. 

    As a responsible employer, if somebody reports concerns about potential grooming, or you observe the possibility of such behaviour occurring, it is important that a workplace investigation is conducted to determine whether the contact is in fact grooming, or merely represents a lapse in judgement.

    Dealing with a breach of boundaries 

    The best litmus test when assessing appropriate levels of professional distance between managers and employees, between co-workers or between employees and clients, is whether there could, in the view of a reasonable person, be a perception of inappropriate behaviour, conflict of interest, favouritism, nepotism, or even grooming. 

    If there is any possibility that such assumptions could be made, then it is likely that professional boundaries are being crossed. 

    If you have doubts regarding a potential conflict of interest or breach of professional distance, then it is best to get an impartial third party to investigate. Our services include full and supported workplace investigations and training. Contact WISE Workplace today to find out how we can best be of assistance.

    Investigating Allegations of Abuse in Care in Aged Care Facilities

    Vince Scopelliti - Wednesday, August 02, 2017

    Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

    Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

    what is elder abuse?

    According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

    There are many different forms of elder abuse, including:   

    • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
    • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
    • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
    • Neglect or Abandonment - failing to provide a requisite standard of care. 
    • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
    • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

    what are the signs?

    Potential signs of the various types of elder abuse include:

    • A bad or unusual relationship between a care provider and recipient. 
    • Unexplained injuries
    • Insistence by the caregiver that the victim is never attended to without them being present.
    • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
    • Ongoing poor hygiene and living conditions.
    • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

    Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

    In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

    Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

    For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

    common risk factors for elder abuse

    In the context of care facilities, the greatest risk factors for elder abuse include: 

    • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
    • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
    • Excessive responsibilities and inadequate levels of support. 
    • Inappropriately vetted staff, including those with substance abuse issues. 
    • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
    • Inadequate complaint handling mechanisms. 

    Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

    How to prevent the risk of ELDER ABUSE

    Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

    • All resident and staff concerns are appropriately listened to and noted. 
    • All staff have have undergone criminal checks.
    • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
    • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  


    Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

    In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

    In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

    Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

    This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

    Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help. 

    Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

    Vince Scopelliti - Wednesday, July 26, 2017

    In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

    facts of the case

    Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

    In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

    A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

    • Making fun of a resident
    • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
    • Continuing to drink tea with another co-worker while residents were calling for help.
    • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

    Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

    In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

    During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

    When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

    Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

    decision of the commission

    In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

    • Ms Tavassoli had been constructively dismissed
    • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

    A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

    The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

    He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

    Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

    He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

    Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

    Legality of secret recordings

    Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

    According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

    • Is notified in writing, before the intended surveillance, that it will take place.
    • The surveillance devices are clearly visible.
    • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

    Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

    The Key message FOR EMPLOYERS

    The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

    Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace

    When the Line Blurs: Restrictive Practices vs Assault

    Harriet Witchell - Wednesday, June 14, 2017

    It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

    As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

    However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   


    According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

    This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

    Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

    Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.


    As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

    While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

    Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

    While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.


      The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

      Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

      At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.