Is Briginshaw Still the Best Way of Solving the Puzzle?

Vince Scopelliti - Wednesday, September 19, 2018

As any HR manager will testify, conducting workplace investigations is one of the most important but vexed aspects of ensuring that an organisation runs smoothly. 

This is particularly the case when the various parties involved in an investigation are putting forward different versions of events - who do you know who to believe? For many years, workplace investigators have employed the Briginshaw test. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1930) 60 CLR 336 is generally regarded as authority for the proposition that if a finding, on the balance of probabilities, is likely to produce grave consequences the evidence should be of high probative value.

But how is this test applied to resolve disputes and make findings in workplace enquiries?

what is it?

The Briginshaw test refers to the civil standard of proof employed in the legal system, specifically in the 1938 divorce case of Briginshaw v Briginshaw. A 'standard of proof' refers to the evidence required by a court or, in the workplace context, an employer or investigator, to make a determination as to the likely truth or otherwise of allegations. 

Although the criminal burden of proof requires evidence to support a finding of 'beyond reasonable doubt', the civil standard only requires an assessment on the balance of probabilities - that is, whether it is more likely than not that one version of events occurred rather than another. 

In Briginshaw, the High Court warned that making a decision on the balance of probabilities does not require a purely mathematical 'weighing up' of the likelihood of one version of events being true over another. Instead, the decision in Briginshaw supports a conclusion that sufficient evidence has been provided if "the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal". In the workplace context, the tribunal determining the matter is the investigator. 

CASE STUDY - SEXUAL HARASSMENT IN CITY HALL

In workplace investigations, individuals are required to respond to allegations, as was the case with the (now former) Lord Mayor of Melbourne. In late 2017, Robert Doyle was accused of having sexually harassed two female councillors by inappropriately touching them. 

In March 2018, an investigation conducted by a Queen's Counsel was finalised, although Mr Doyle had already resigned by this time. Given the seriousness of the allegations and the potential consequences, the investigation relied on the Briginshaw test, and applied a standard whereby the investigator was 'reasonably satisfied' that the specific allegations of sexually inappropriate conduct related to Mr Doyle in his role as Lord Mayor. 

In Mr Doyle's case, the investigators accordingly based their determination on being "satisfied to a level which goes beyond the mere likelihood that something happened" that the allegations could be substantiated. 

The findings included that specific allegations were substantiated. More specifically the investigator made three adverse findings of sexually inappropriate conduct, and a fourth finding that the three matters occurred in the context of the Mayor having consumed substantial amounts of red wine. 

Factors which were taken into account in making this determination, included the likelihood of Mr Doyle having engaged in the behaviour because he had consumed significant amounts of red wine, and his credibility as a witness. The investigation also noted that one of the complainants made contemporaneous complaints and was consistent in her allegations. 

The report stated no findings had been made by a court or tribunal based on the information reported on as part of the investigation, however, if proven the behaviour could constitute sexual harassment within the Victorian Equal Opportunity Act 2010, and gross misconduct under the Local Government Act 1989.

what can we learn?

One difficulty with applying the Briginshaw test in workplace investigations, is that an investigation does not constitute a judicial process. Accordingly, participants give information on a voluntary basis only. 

This inability to compel testimony or information from witnesses may mean that a determination is made on the balance of probabilities - but without having all information available. Indeed, in the absence of a court or the threat of perjury, there is no real compulsion for accurate information to be given in a workplace investigation. Undue reliance on such information could result in an unjust determination. 

Failure to recognise the difference between a court and the role of an investigator can lead to mistakes, and allegations can be left unsubstantiated in circumstances when they may have occurred. In circumstances where the investigator is inexperienced or does not have access to all required information, it may well result in an inequitable outcome, or a situation where a conclusion is made based on partial information or poor facts. 

When a workplace or employee faces allegations, its important for the investigator to ask the relevant questions, examine documents, and analyse all relevant evidence carefully when making conclusions about what occurred. Making findings using the Briginshaw principle and explaining the reasoning behind the outcomes of the investigation can assist employers in considering what further action needs to be taken in light of the findings. 

It is important for employers and investigators to ensure that findings of workplace investigations will withstand the highest level of scrutiny. A higher level of skill will be required from an investigator when circumstantial or uncorroborated evidence is being considered. 

If you require assistance analysing evidence, or conducting an investigation, contact WISE today!  

How to Write a Robust Workplace Investigation Report

Vince Scopelliti - Wednesday, September 05, 2018

At the conclusion of a workplace investigation, the investigator has the challenging task of pulling together all relevant material into a cohesive report. The style of report that is chosen will be firmly linked to the purpose of the investigation, keeping in mind the requirements of the readers and users of the document. 

Investigators need to consider closely the manner in which findings are made and how best to share findings with key parties in a clear and appropriate manner. The outcome of a workplace investigation and report might well be that mediation and/or other processes are indicated as next steps. The tasks of drafting, writing and communicating a workplace investigation report are all crucial parts of the process.

whAT IS THE PURPOSE OF THE REPORT?

Any investigation report must provide a clear and unbiased summary of the process and outcomes of an investigation. This is a document that leaves nothing to guesswork when it comes to describing the background, methodology, parties involved, timeline of events, policies and findings that have arisen across the entire timespan of the investigative process. 

It can be tempting for an organisation to decide during an investigation not to obtain a report, and to keep any outcomes 'informal'. However, if there are adverse outcomes for one or more parties, a transparent report will be the best way to prevent any future claims of unfair process. 

the style of report

No two investigation reports will have exactly the same style, the author, allegations, organisation type and specific circumstances all lend a unique nature to a report. Yet some common themes can be found in all high-quality investigations. 

Firstly, the report should be written in professional plain English. A variety of readers should be able to interpret the report - without recourse to a thesaurus! In-house descriptors and acronyms can be used, but these must first be defined or form part of a comprehensive glossary. Clear contents and a logical progression from index and executive summary through to scope, methodology, evidence, discussion, findings and recommendations will also assist any audience to understand the document. 

making findings

All findings made in an investigation report must be supported by the facts. If the facts are established, the investigator needs to determine what policy and/or law have been breached by the conduct. Once these elements are established, they must be communicated effectively and clearly in the written report. 

As with the report's overall style, findings should be logical. The report cannot simply list evidence then move to findings. Careful and reasoned explanation is needed of both the process of analysis and the deliberations undertaken by the investigator. 

This includes explaining what and why certain weighting was given to particular parts of the evidence, or why an interviewee might have been persuasive or unpersuasive on a particular point. Making clear findings is often harder than it might at first appear. Similarly, clearly reflecting the author's final thoughts in a clear and concise manner, making the report user friendly for all readers, is a challenging yet essential part of making defensible findings. 

Informing Parties

One issue to consider closely is how the outcomes of the investigation, contained in the report, will be communicated to the participants. Given that witnesses have provided evidence in confidence, their privacy needs to be protected. 

Other questions which need to be considered when sharing the outcome of an investigation with parties include:

  • Could safety be in issue by the release of particular data?
  • Is the presence of a support person necessary?
  • Should the report be presented to all parties together at a meeting? 

While a report must be clear and comprehensive in all of the matters that formed part of the process, consideration should be given to the use, delivery and description of information provided during the workplace investigation. 

Moving on from a workplace investigation

A common recommendation is for parties involved in a workplace investigation to participate in mediation in relation to one or more issues. This is often the case where emotions have stalled effective interactions at work, or where a 'he said - she said' situation makes it impossible to make a clear finding on issues of fact.

It is important to establish if all issues warrant mediation, or if only a few can realistically be dealt with in this way. Who should conduct the mediation is an interesting topic in itself - and one for future discussion. Effective mediation can create resolution of the issues and, ideally, improve workplace relationships. Yet if such discussions fall through, it is important that the report itself will withstand any future scrutiny or review.

If you need assistance with conducting an investigation, contact WISE now or enrol in our popular and effective 'Conducting Workplace Investigations' training course.

Analysing Evidence: The Key Step of Workplace Investigations

Vince Scopelliti - Wednesday, August 15, 2018

One of the most challenging and important tasks undertaken by a workplace investigator is the analysis of the evidence that has been gathered during the course of the investigation. 

Key questions to consider include: What evidence should be contained in the investigation report? How do I analyse what I have gathered? How does this connect with the findings I make in the investigation report? 

Here's how to effectively and transparently analyse the evidence.

WHAT evidence should be included? 

There is a simple answer to this question: ALL relevant evidence collected in the course of the workplace investigation will need to form part of the analysis, the findings and the final report. The act of leaving evidence out without explanation can - intentionally or otherwise - indicate a lack of thoroughness or even worse a prejudgement about a fact in issue. A piece of evidence might ultimately prove to be of little consequence, but this should be at least acknowledged and noted. So if in doubt don't leave it out. 

Exculpatory and inculpatory evidence

One way to begin marshalling material is to consider if the evidence is exculpatory or inculpatory. If we think of the allegation in question - let's say sexual harassment in the workplace - we can begin to analyse the evidence in terms of those items that most likely indicate that the conduct occurred, and those that point to the opposite conclusion. 

Evidence that indicates or tends to indicate that something occurred is known as inculpatory evidence. Conversely if evidence vindicates or tends to clear the alleged harasser of the wrongdoing, then this is known as exculpatory evidence. 

It is unlikely that you will have two neat piles from the start! However, this formal approach to organising the evidence can assist in creating a logical report that withstands future scrutiny. 

Analysis of the evidence

For each piece of evidence examined, investigators need to determine how strong or weak it is in the overall context of the investigation. Strong evidence will be consistent, reliable and in terms of witness statements, believable, probable and credible. 

Considering that a workplace investigation often reflects strong emotions and internal allegiances within the organisation, it is important to make an objective assessment of the reliability of statements made and items presented. Investigators will be on the lookout for statements that might be self-serving, or made a long time after the event in questions, for example.

Other factors to consider will be internal anomalies in statements or possible collusion between witnesses. An element of triangulation of the data will be required - the investigator is looking to detect where dubious connections indicate a weakness in evidence, or conversely where consistent evidence is noticeable across a number of different sources, including documentary evidence. 

It is important to compare and contrast evidence from different sources: Which parts of the evidence consistently support the view that the events in question occurred and which indicate that it did not occur. Once this is done, the weight or value of each part of the evidence can be assessed.    

writing up the analysis

Those new to workplace investigations can sometimes become daunted by the task of reporting on findings made. It is important to be clear about the methodology, about the manner in which the evidence was handled and how you have arrived at your findings. 

Take a methodical approach, which will assist your own thinking as well as allow any reader a logical progression through the document. Some organisations will require the report to be set out in a particular manner and it is important to ascertain if this is the case. 

Above all - make your findings clear. If your finding is that an event occurred, then state this clearly. It will be necessary to explain why you consider certain claims to be substantiated or where there is insufficient evidence to draw a conclusion on a contended point. This document could well be used in a number of forums including court and tribunal proceedings. It should be a reflection of the fact that the workplace investigation was fair, that all relevant evidence was considered and included, and that findings are based upon well-balanced evidentiary analysis. 

A workplace investigation is a systematic process for establishing facts and circumstances surrounding a complaint or allegation. If you need assistance with conducting an investigation, or would like support in analysing your evidence gathered, WISE provides both supported and full investigation services.

Counter Allegations - Who Did What When?

Vince Scopelliti - Wednesday, June 20, 2018

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

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

When two tribes go to war 

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

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

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

Seen and unseen allegationS

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

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

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

Hearsay - treading lightly on complex terrain

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

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

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

Workplace allegations and motivations

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

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

Managing Complaints - How To Find The Positive

Vince Scopelliti - Wednesday, June 13, 2018

When an employee complaint alleging workplace discrimination or harassment is lodged, it is usually seen as a negative moment in the life of the organisation.

However, it is possible for an employer to view this as a positive phenomenon, rather than a sign of complete failure. This is because well-handled complaints can illuminate hidden corporate weaknesses, as well as any lurking issues affecting staff morale or motivation. Such information can become a valuable catalyst for positive change across the broader business - a win-win for internal and external stakeholders alike.

Best-practice in complaints handling is dependent upon a structured complaints process that includes two key ingredients: the quality of investigation process and the structure of the complaints process itself.

1. A thorough high-quality workplace investigation is an essential tool in the management of internal complaints, including allegations of discrimination and harassment.

2. The structural framework of internal complaints policies and procedures will necessarily be clear, accessible and well-publicised. A well-managed complaint can be a good news story not only for the people involved, but for the broader success of the business.

INVESTIGATING DISCRIMINATION AND HARASSMENT 

When an employee complains that they have been the subject of discrimination or harassment, it is highly likely that there will be differing opinions and perspectives as to whether or not this is actually the case.

As a result, best-practice workplace investigation requires fair, open and even-handed treatment of all who are involved in the investigative process. Further, it is important for investigators to move at a reasonable and logical pace, first making preliminary enquiries before deciding on any next steps.

But what does a good investigation mean on the ground? One key concept is procedural fairness. This means that parties involved are equally able to access the process, to be heard in a substantive way and to be given a fair opportunity to understand and respond adequately to any claims made against them. Under procedural fairness parties have the right to an impartial decision-maker and to having a support person present during their interview. Professional investigators must be seen to be unbiased in every phase of the workplace investigation.

Added to this, a high-quality workplace investigation will ensure that all relevant and reliable evidence has been carefully obtained, anaylsed and included appropriately in the final report. There can be no room for short cuts or preferential treatment in workplace investigations.       

Robust complaints policies and procedures

Employers, investigators, complainants and witnesses alike should ideally all have access to a durable set of internal policies and procedures covering common areas of complaint.

A strong policy document detailing how and to whom to make a complaint should be accessible, user-friendly and up-to-date. The policy should also direct the reader to one or more procedures that need to be followed in the event that an alleged instance of harassment or discrimination has occurred. This is often a time of great stress, and instructions to complainants should be clear and helpful.

Internal policies and procedures that are complicated, badly written or tucked away in a dusty filing cabinet are of little-to-no assistance to the individual seeking to make a complaint.

This is why good investigations and good complaints policies go hand-in-hand: even the best investigator will struggle to keep things fair if complaints policies are convoluted or absent, or if procedures leading up to the investigation are sub-optimal.

Perhaps most importantly, managers and employees should be trained in practically accessing and using these documents, at all stages being assured that complaints are taken seriously and are indeed welcomed by the organisation.

Step by step pathways

A sound complaints process begins with employees first being made aware of a useable and fair pathway for their grievance. A good internal complaints system will work step-by-step through a logical process. This means initially providing clear and succinct information on the nature of common complaints, some definitions where appropriate, the bigger picture of the complaints process and - perhaps most importantly - who to speak with in the first instance about the particular concern.

An internal complaint is a golden opportunity for employers to gain important information about people and workplaces. For this reason, the internal complaints system should be presented in a simple, cordial and helpful format.

Problems arise every day that require the existence of an effective complaints and investigations pathway. Thankfully many complaints can be quickly and easily resolved. However, if you need to undertake investigations or a review of your HR policies, and want to ensure you are conducting it with best practice, our training is developed by investigators for investigators. Contact WISE today to find out more.

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHy are workplace investigations necessary?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

what does an investigation involve?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

so, who should investigate?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

Should an external or internal investigator be appointed?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

Risks of an investigation being conducted incorrectly

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

Lesson for employers

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.

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.