Conducting Workplace Investigations: What You Need to Know

Vince Scopelliti - Wednesday, January 31, 2018

Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time. 

Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings. 

So, what are the most important things you need to be aware of when conducting a workplace investigation?

understanding why an investigation is necessary

All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission. 

Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable. 

Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.

how can your human resources team support you?

If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation. 

Your HR team can facilitate a successful investigation by:

  • Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
  • Providing a clear timeline and outline of processes;
  • Ensuring that staff are aware of their rights to have support persons involved;
  • At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.  

fact finding vs formal investigation

Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis. 

A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.

The need for procedural fairness 

A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness - a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.

The key elements of procedural fairness include:

  • Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
  • Permitting a reasonable amount of time for the employee to respond to the allegations;
  • Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
  • Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
  • Ensuring that decisions effecting the employee are based on evidence. 

So what is involved in conducting a workplace investigation?

The key elements of an effective investigation include:

1. Planning the Investigation

  • Adequate planning before the investigation starts, including considering any potential conflicts of interest;
  • The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
  • Preparing a list of interview questions for each witness;
  • Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
  • Notify all parties of there involvement, rights and obligations. 

2. Interviewing

  • Provide sufficient notice and make appropriate arrangements with all witnesses
  • Conducting formal interviews objectively and sensitively, having regard to the circumstances;
  • Checking that representation or support has been offered and outlining the investigation process and timeline;
  • Obtaining as much detailed evidence as possible

3. Analysing and Weighing the Evidence

  • Assessing the evidence with regard to reliability, consistency and credibility;
  • Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
  • Coming to a conclusion and making a finding, based on the evidence gathered. 

4. Facilitating a Resolution

  • This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling. 

When to ask for help

The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive. 

In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process. 

This could include situations where: 

  • Serious allegations are made and there is a potential risk of criminal or civil litigation;
  • Complaints are made against senior employees;
  • A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally; 
  • There is a need for legal privilege to cover the circumstances;
  • There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge. 

If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations. 

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.

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

Workplace bullying comes at a high price for Australian businesses and employees, costing billions and leaving a trail of physical and mental health issues in its wake. 

Even though employers are becoming increasingly conscious about bullying and most have anti-bullying policies in place, it is still very prevalent in 2017. 

We take a look at what types of behaviour constitute workplace bullying, its magnitude, and some of the key cases heard by the Fair Work Commission (FWC) this year.

the nutS and bolts of it

Workplace bullying can come in many forms. It can be broadly defined as repeated unreasonable conduct and can include different types of abusive behaviour, whether physical, verbal, social or psychological, that occurs at work. It does not matter whether the behaviour is engaged in by a manager, a boss, or co-worker, or what the employment status of the victim is. 

Many different types of behaviours can fall within the meaning of workplace bullying. Some of the most obvious ones include:

  • Physical intimidation or violence
  • Excluding co-workers from social or work-related interactions
  • Mocking or joking at the expense of somebody in the workplace
  • Spreading gossip or rumours
  • Threats of violence or abuse

There are also a number of more subtle types of abuse frequently being employed in workplaces. According to research released in June 2017, these include: 

  • Unnecessarily micro-managing an employee so that they cannot perform their role effectively - or not providing enough supervision and support in order to permit a job to be performed competently
  • Consistently providing work well below an employee's competency 
  • Frequent reminders of errors or mistakes
  • Setting unreasonable deadlines or timeframes
  • Ignoring opinions or input
  • Exclusion from work or social events. 

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

According to research undertaken for BeyondBlue, almost half of Australian employees will report experiencing some type of bullying during their working lives. Workplace bullying can impact performance and career progression, and result in a range of physical and mental health issues. 

It is estimated to cost Australian organisations up to $36 billion a year. 

the need for an anti-bullying culture

In order to appropriately respond to the many different types of bullying - including some of the more hidden, indirect types of bullying set out above - employers must implement clear and direct anti-bullying policies outlining what type of behaviour is considered to be unacceptable. 

Rather than solely focusing on punitive measures for dealing with inappropriate behaviour, employers are also encouraged to attempt to build a positive workplace culture through feedback, independence and trust. 

WHen employers are accused of bullying 

Given that almost anything could potentially lead to allegations of bullying, it is not surprising that many employers are concerned about being unable to treat employees with anything other than kid gloves. 

However, employers are within their rights to performance manage, discipline, retrench or otherwise alter the employment conditions of an employee in appropriate and legally permitted circumstances.  

how did the fair work COMMISSION view bullying in 2017

A number of cases before the FWC this year highlighted the need for fair and unbiased investigation of bullying allegations, and demonstrated that employers taking appropriate steps to discipline or dismiss an employee won't be penalised. 

Case Study 1: The email is mightier than the sword

In early 2017, FWC upheld a ruling that Murdoch University was right to terminate an employee for serious misconduct. That employee had sent a number of abusive emails - from his university work account - to the chief statistician of the Australian Bureau of Statistics (ABS). 

Even after complaints were forwarded by the ABS directly to the University, the employee continued to send emails to the chief statistician, and forward those on to third parties, including a federal member of parliament. In one of those emails, the worker tacitly acknowledged that his behaviour was bullying, and stated that 'bullying is the only way to deal with bullies'. 

Prior to his correspondence with the ABS, the employee had already emailed another colleague and accused her of being deliberately dishonest and suffering from mental health issues. 

Ultimately, Murdoch University stood down the employee on full pay while an investigation was conducted. It also took steps to change investigators on more than one occasion, after the employee complained about the staff investigating the matter, before ultimately dismissing the employee. 

This case is an important reminder for employers that taking appropriate and lawful steps to investigate and, if necessary, terminate employment will not constitute bullying.

Case Study 2: Lawful adversaries - bullying in law school

In another bullying case involving a university, a Deakin University law lecturer sought the imposition of anti-bullying orders on a co-worker.

Although the accused professor had previously been charged with misconduct while working at another university, the FWC refused to allow the provision of materials relating to those earlier allegations. It noted that previous management behaviours of the professor were not relevant to new claims of bullying. 

Those materials also reportedly contained commercially sensitive information regarding other employees. This reinforces the message that employers and senior staff should not feel as though they are prevented from taking steps to discipline staff without being accused of bullying, despite any previous allegations. 

Case Study 3: A failure to properly investigate

Employers must take care to properly investigate all allegations of bullying within the workplace, not only to protect the victim but also to afford due process to the accused. 

This was the case in a recent FWC decision, which determined that a mother and daughter had been unfairly terminated amidst allegations of bullying and fraud. 

The director of the abortion clinic in which the mother and daughter worked had terminated their employment after registered nurses made various complaints about the duo, including that they took excessive smoke breaks, failed to record information properly in time sheets, and had made inappropriate threats of dismissal to the nurses. 

The director failed to appropriately investigate the allegations and, crucially, did not give the terminated employees sufficient time to properly respond. The FWC found that this demonstrated favouritism and nepotism (in circumstances where the director had apparently wanted to install his own wife and daughter in the newly available roles). 

Case Study 4: Getting it both right and wrong

Even when an employer's disciplinary actions are ultimately deemed to be appropriate in all relevant circumstances, their response may still fall far short of best practice. 

That was the case when the Paraplegic and Quadriplegic Association of NSW (Paraquad) was held to have properly dismissed a carer whose major depressive disorder meant that she no longer had the capacity to properly fulfil her role. 

However, the employee complained before her dismissal that she had suffered years of bullying and harassment which had exacerbated her psychiatric condition. This was not properly taken into account by Paraquad's HR department - even when provided with medical evidence supporting the employee's allegations as to the source of her condition. 

The FWC was particularly critical of the HR department's decision not to properly investigate the bullying allegations, because the employee had not followed workplace protocol in making her complaints. 

Case Study 5: Lessons in discourse

 Another interesting development this year revolved around language. Fair Work Commissioner Peter Hampton explained at the annual Queensland IR Society Convention in October 2017 that he eschews the use of words such as 'bully', 'victim', or 'allegeable'. It is advisable to avoid unhelpful labels which might shoehorn parties into certain roles. 

A similar approach is being encouraged in the Queensland Public Service Commission, particularly when dealing with domestic violence, where labels such as 'perpetrator' are actively discouraged and a rehabilitative approach is desired. 

The take home message

So what lessons can employers take away from the way the FWC has dealt with bullying in 2017? In summary employers should:

1. Take all complaints of bullying seriously, and conduct unbiased, fair investigations

2. Ensure that those accused of offences are afforded due process and have the opportunity to respond to allegations against them

3. Take positive steps to devise and implement workplace policies which make it clear that bullying behaviour will not be tolerated and will be investigated as necessary

4. Ensure that any action taken to discipline or dismiss an employee is reasonable and appropriate. 

For expert assistance with these and any other matters related to workplace investigations and how to respond to workplace bullying complaints, contact WISE Workplace today.  

How Medical Evidence Supports an Unbiased Investigation

Vince Scopelliti - Wednesday, November 01, 2017

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

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

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

zero bias when investigating assaults 

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

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

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

assessing medical evidence

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

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

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

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

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

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

    why an impartial investigation is important

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

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

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

    What Evidence Should Be in a Workplace Investigation Report?

    Vince Scopelliti - Wednesday, August 23, 2017

    In every workplace, there will eventually be a situation where an investigation needs to be carried out into an employee's compliant or conduct. One of the most crucial aspects of conducting workplace investigations includes preparing an investigation report which can be relied upon for any future purpose, including carrying out and implementing disciplinary action against an employee.

    WHAT IS the purpose of an investigation report?

    An investigation report is intended to provide a 'snapshot' for external entities, such as auditors, judges or tribunal members, or the police; of the allegations made, the likely accuracy of the claims, the background circumstances surrounding the alleged behaviour or occurrence, and the likely consequences imposed once any findings have been made. 

    Broadly, the investigation report is created in order to: 

    • Form the basis of any future action, such as disciplinary proceedings or strategic direction. 
    • Record the conduct of the investigation objectively (in particular to avoid allegations of bias or a lack of procedural fairness)
    • If necessary, be produced in legal investigations, or proceedings. 
    • Record observations and other data surrounding employee attitudes and experiences. 


    It is essential that every investigation report: 

    • Is set out in an organised fashion. This includes, for example, ensuring the inclusion of page numbers and an index so that information can be readily sought. 
    • Is internally consistent and can stand-alone, meaning that the report itself makes sense and is complete without having to refer to extraneous documents of information
    • Objectively documents findings and recommended actions, without any bias or undue influence. 
    • Identifies whether allegations were ultimately grounded in fact or were simply unfounded. 
    • Alternatively it may also identify if there is insufficient evidence to make a finding. 

    In areas legislation, regulations or specific policy and procedures particularly with some government departments, the investigation and reporting requirements can be more onerous and prescriptive where there may be higher level oversight.

    In general today, it is increasingly critical to ensure that an investigation report is properly completed - certainly this is to demonstrate that the instructing entities use best practice in all investigation reports created in consultation with employees. 

    The role of briginshaw

    In matters where there could potentially be criminal implications, other serious outcomes, or adverse findings, it is crucial that an investigation report have regard to a legal concept known as the rule of Briginshaw v Briginshaw

    This means that the decision maker must be satisfied that the seriousness of allegations is weighed up against the potential consequences of adverse actions or findings. This highlights the importance of putting only relevant matters into an investigation report. 

    how should an investigation report be set out?

    From a practical perspective, it makes sense to stick to a fairly rigid structure in drafting every investigation report - particularly because this regime will enhance the objectivity of any finished report. 

    This structure should include:  

    • An executive summary - so that the key findings and recommendations are immediately clear and identifiable. In many cases this is the only part read by outsiders, so it is essentially that the key information is contained in the summary in the 'punchiest' way possible.
    • A methodology - in order for the reader to understand what process the author went through to complete the report. 
    • An identification of the standard of proof against which the report has been drafted and the allegations have been assessed. Outside of the criminal world, the civil standard is assessed according to the balance of probabilities: that is, whether it is more likely than not that a certain behaviour or alleged fact took place as claimed. 
    • Key evidence being relied upon in relation to each allegation/particular. 
    • An analysis of the evidence that supports any findings made. 
    • Other issues which may be relevant to the investigation itself or the ultimate determination. 
    • If appropriate, recommendations for future conduct.

    What is the role of evidence in investigation reports?

    Items of evidence which should be contained in an investigation report include:

    • Witness statements and/or transcripts of interviews
    • Physical evidence such as photographs of injuries or the debris of a broken item.
    • Documentary evidence such as incident reports or contemporaneous file notes.
    • Electronic evidence including emails, text messages and CCTV footage.
    • Expert reports such as medical reports
    • Other documentary support evidence such as rosters, timesheets, fuel cards, behaviour support plans, client profiles etc. 

    Crucially, the evidence should be relevant and sufficient to support any findings.

    Relevance may be determined by employing the following assessment, as set out in the decision of Robinson v Goodman [2013] FAC 893

    a) What facts are disputed, and what the collated evidence tends to prove or disprove.

    b) Whether the evidence provided might be indicative of the fact that person will tend to behave in a certain way. When relying on so-called tendency evidence, it is essential that the potential consequences of claiming that somebody has a tendency to behave a certain way are weighed up against the potentially damaging suggestion that a person's past behaviour should dictate whether they have acted in that way again.

    Although workplaces are entitled to maintain confidentiality over investigation reports, in most cases, there are certainly circumstances where the reports may be ordered to be handed over to the complainant or the other party. 

    This was the case in the decision of Bartolo v Doutta Galla Aged Services (July 2014), where the Federal Circuit Court ordered the waiver of legal professional privilege over investigation reports completed by external lawyers. 

    The court's decision to produce the reports was due to the fact that an employee had been dismissed on the basis of information set out in the investigation reports. It was therefore clearly incontestable that the report was not relevant to the outcome complained of by the former worker.  

    potential consequences of a poorly drafted investigation report

    Given that an employee's life can be significantly affected by the conclusions drawn in investigation reports, there is high potential for outcomes to be referred for legal proceedings. 

    As this is a likely possible outcome, it is important to make sure that any workplace investigations are determined according to the minimum standard on which the court will rely. That is, satisfying the court on the balance of probabilities that a reasonable person would consider it more likely than not that events occurred as described by the complainant or the worker. 

    Properly prepared investigation reports are very similar to briefs of evidence prepared by counsel during court proceedings, and can be complicated and challenging documents to create. WISE Workplace provides training designed to assist you with the conduct of workplace investigations and drafting reliable reports. Our team can also conduct investigations for you. Contact us today. 

    The Year that Was: Lessons from 2015 Part 2

    Harriet Witchell - Monday, January 25, 2016
    Lessons from 2015 Part 2

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

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

    Workplace culture and its impact

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

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

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

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

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

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

    Overstepping the mark

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

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

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

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

    Procedural fairness and standard of proof

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

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

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

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

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

    A timely reminder

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

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

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

    The Year that Was: Lessons from 2015 Part 1

    Harriet Witchell - Monday, January 18, 2016
    Lessons to be learned from 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

    Employers must:   

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

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

    No Proof: The Key Role of Circumstantial Evidence

    Harriet Witchell - Monday, December 14, 2015
    No Proof: The Key Role of Circumstantial Evidence

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

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

    Direct versus circumstantial evidence

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

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

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

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

    Balance of probabilities

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

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

    Applying the standard of proof

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

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

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

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

    The employee might respond to the allegations by saying that: 

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

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

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

    Handling circumstantial evidence

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

    First Cab off the Rank? Interviewing Respondents

    Harriet Witchell - Monday, November 23, 2015
    Interviewing Respondents in Workplace Investigations

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

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

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

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

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

    Advantages of interviewing the respondent first

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

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

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

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

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

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

    Disadvantages of interviewing the respondent first

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

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

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

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

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

    The need for a strategy

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

    WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
    Location: Melbourne
    Date: 1-3 December

    How does Briginshaw vs Briginshaw affect the balance of probabilities?

    Harriet Witchell - Tuesday, October 29, 2013


    Last week, I looked at how the 1938 divorce case of Briginshaw vs. Briginshaw has significant impact on workplace investigations today. This week, I look at the importance of the balance of probabilities and applying Briginshaw in practice.

    The balance of probabilities

    Usually the role of an investigator is to determine whether alleged events occurred.  To do this, the investigator needs to determine whether there is a sufficient amount of evidence to prove allegations. The amount of evidence required is known as the “standard of proof”.

    The standard of proof differs between civil and criminal matters. Case law has established that in civil matters, the standard is the “balance of probabilities”. This is a lesser standard than the proof required for criminal matters. (Criminal allegations must be proven “beyond reasonable doubt”).

    But in Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court cautioned against a purely mechanical comparison of mathematical probabilities and stated at pages 361–2 that the balance of probabilities test requires the tribunal to:

    "feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … [A]t common law … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal."

    Applying Briginshaw in practice

    Subsequent cases have applied the Briginshaw principle when, depending on the nature of the allegation, the strength of the evidence required to meet the standard of proof in civil cases may change. However, the civil standard of proof is always the balance of probabilities (see the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd  (1992) 67 ALJR 170 at 170 – 171).

    De Plevitz (2003) categorises the types of cases where the Briginshaw principle has been applied as follows:
    1.    where there are allegations of serious misconduct including:

    • sexual abuse of children
    • contested wills where it is alleged that one party who stood to inherit under the will had murdered the deceased person
    • gross medical negligence
    • fraud and
    • serious and willful misconduct warranting dismissal from employment.

    2.    where the outcome of the decision may be irreversible including:

    • decisions by mental health tribunals which could result in a loss of personal liberty
    • sterilization decisions
    • determinations of whether a person is Aboriginal and thereby entitled to stand as  a candidate for election to the (now defunct) Regional Council of the Aboriginal and Torres Strait Islander Commission (ATSIC)
    • striking off doctors or lawyers from their professional rolls

    De Plevitz notes that the Briginshaw “standard of proof” has been adopted by all Australian anti-discrimination jurisdictions, based on the general belief that any allegation of discrimination or harassment is a “serious matter”.

    However she cautions that this approach is not warranted in every discrimination case. When deciding whether to apply Briginshaw, investigators should take the two-step approach of the Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal in the unreported decision of Dutt v Central Coast Area Health Service [2002] NSWADT 133 (6 August 2002) as follows:

    1. Look at the nature of each allegation and asked whether it would have reasonably foreseeable adverse consequences for the livelihood or reputation of the respondent?
    2. If so, then and only then, apply the Briginshaw test.

    Where allegations could have serious consequences for the alleged perpetrator, the question of the strength of the evidence required will depend on the facts of each investigation. However, as a rule of thumb for investigators, circumstantial or uncorroborated evidence warrants a closer look at all the facts to determine if there is anything else to substantiate the allegations.

    De Plevitz, L., (2003). 'The Briginshaw 'Standard of Proof' in Anti-discrimination law: Pointing with a wavering finger' Melbourn University Law Review 13