Performance Management vs Bullying: Where's the Line?

Vince Scopelliti - Wednesday, June 12, 2019

Employers often face a quandary in dealing with underperformers, and whether to place them onto a performance management program. 

It's essential that any such move can always be considered to be 'reasonable management action' in response to inappropriate behaviours or inadequate or unsatisfactory performance, and not simply a way of bullying an employee. 

Let's take a look at the difference between performance management and bullying, and how employers can make sure they are not crossing the line.  

what is performance management?

At some point, every employer will need to manage an underperforming staff member. In practice, this means taking steps to deal with poor conduct, including:

  • Non-compliance with policies/procedures and other workplace requirements
  • Inappropriate, disruptive or generally bad behaviour
  • Unsatisfactory performance of work tasks

The necessary steps may range from informal performance management, where the inappropriate or unsatisfactory behaviour is brought to the staff member's attention, through to a more formal process such as the implementation of a performance improvement plan.

is it reasonable management action or is it bullying?

Employers are not prohibited from dealing with staff that they consider are underperforming. However, care needs to be taken to avoid bullying a staff member, within the meaning of s789FD (1) of the Fair Work Act 2009 (Cth)

That legislation defines bullying as a situation where 'an individual... or group of individuals... repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and... that behaviour creates a risk to health and safety'.

The same legislation explicitly excludes 'reasonable management action carried out in a reasonable manner' from the bullying definition.

But what is reasonable management action? Although not an exhaustive list, the following situations constitute appropriate management action within the meaning of the legislation:

  • Scheduling regular meetings to discuss ongoing performance issues
  • Disciplinary an employee for identified misconduct
  • Undertaking an investigation into a complaint
  • Modifying a worker's duties as required by operational reasons or the employee's health.

When making an objective assessment of the reasonableness of the management action, it is important to consider what caused the action, what circumstances were  in train while the action was taken, and what occurred as a result. 

It is also important to note that there is no 'retrospective gold standard'. Just because an employer may, in hindsight, have been able to improve on the way they undertook the action, does not necessarily mean that it was not appropriate reasonable action at the time. 

Moreover, although the staff member's perception of a negative management action is likely to tend towards it being unreasonable, the standard is objectiveness and this is not determined by one or a group of employees' views.

lesson from real-world cases

Unsurprisingly, the question of what constitutes reasonable management action is one which is frequently litigated in court. 

In the decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, it was determined that a manager's day-to-day instructions were not enough to constitute 'management action'.

In National Australia Bank Limited v KRDV [2012] FCA 543, the court considered that although the employee was spoken to about her performance in both a formal Action Operation Management meeting and in a 'casual chat', the two meetings were not sufficiently clear as performance-related discussions to constitute reasonable management action.

how to ensure compliance with reasonable management action

Practical tips for compliance include: 

  • Ensuring that formal and documented performance management processes occur at all relevant times, and avoiding informal or impromptu 'chats' on performance
  • Reviewing policies and procedures regularly, in relation to bullying and also appropriate disciplinary action
  • Advising managers to always provide clear and direct instructions, which cannot be seen as ambiguous
  • Documenting and providing formal written warnings when inappropriate behaviour is called out, to demonstrate that management involvement has been required. 

Performance management is part of maintaining a successful business. However, if you receive complaints regarding your performance management approach, and want to ensure that you are complying with best practice and acting in a fair and reasonable manner, contact WISE for assistance and advice today.

What Should You Include in a Whistleblower Policy?

Vince Scopelliti - Wednesday, June 05, 2019

Whistleblower protections have been top of mind for many Australian organisations recently, following a number of changes to the law. 

The Treasury Laws Amendment (Enhancing Whistle-Blower Protections) Bill 2017 is due to come into effect from July 2019.

This will result in significant changes to the way whistleblowers are to be treated under a raft of existing legislation, including the Corporations Act 2001 (Cth), the Banking Act 1959 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth).

One of the key changes is the need for organisations to have policies in place around whistleblower procedures and protections. 

So what are some of the key changes to the law, and what should your whistleblower policy include? 

the key changes to the law

A number of changes will take effect under the new legislation, including: 

  • The expansion of the definition of 'whistleblowers' to include relatives, dependants, their spouses, former employees and former associates.
  • Excluding personal work-related grievances from conduct that is otherwise deemed to be reportable.
  • Enhancing protections for whistleblowers. This includes increased anonymity, more significant penalties for revealing identities of whistleblowers and facilitating the ability for whistleblowers to seek compensation or redress in situations where they have been victimised. 
  • Limiting the persons in a business who are entitled to receive disclosures, but permitting externalisation of whistleblowing to the media and/or parliamentarians in circumstances where the disclosure may be a matter of public interest or emergency. 
  • Requiring public and large proprietary companies (defined as companies with consolidated revenue of at least $25 million, consolidated gross assets of at least $12.5 million or at least 50 employees) to have a detailed and compliant whistleblower policy in place. 

defining conduct to be reported

The intention of the legislation is to protect people who: 

  • Report misconduct or 'an improper state of affairs or circumstances' in situations where the whistleblower has reasonable grounds to suspect that the misconduct has occurred. This is generally expected to cover 'unethical' conduct. 
  • Believe an offence has been committed under legislation whose supervision comes under the purview of the watchdogs APRA or ASIC.
  • Report behaviours which 'represent a danger to the public or financial system' or otherwise relate to a civil or criminal offence which could result in imprisonment for a period of at least one year. 

explaining the process

In the event that a staff member wishes to make a disclosure, it is essential that it is only made to the appropriate category of person. Internally, this includes officers of the company, a person authorised by the company to receive 'protected disclosures' (such as an HR representative) or a senior manager of the whistleblower, who is an employee of the company. Companies can facilitate disclosure by implementing a mechanism for staff members to report online or over the phone. 

External disclosures can be made to ASIC/APRA, auditors or actuaries reviewing the company, lawyers or journalists or parliamentarians where public interest would be met by making the disclosure.

Whistleblowers are entitled to retain anonymity. However, the information does not need to remain confidential, as long as it can be demonstrated that:

  • The information requires investigation.
  • Reasonable steps have been taken to maintain the anonymity of the whistleblower in conducting such an investigation. 

protections for whistleblowers

The new legislation sets out a number of strengthened protections for whistleblowers.

  • Immunity against civil, criminal, administrative or disciplinary action.
  • An inability to enforce contractual remedies against a party making the disclosure.
  • An inability to admit information provided by a whistleblower into evidence in proceedings against them (unless those proceedings are pursued because of the falsity of the information). 
  • Protection against victimising conduct (such as dismissal, demotion, discrimination or similar).
  • Increased anonymity protection through strict liability criminal offences for revealing identities of whistleblowers
  • Significant monetary penalties applicable to person(s) who reveal the identities. 

What to include in a whistleblower policy?

Organisations who are required to have a whistleblower policy must ensure that it covers off key points, including: 

  • What protections the employee can expect to receive.
  • Details on how those protections will work in practice.
  • Specific information on how a disclosure can be made.
  • Details on how disclosures will be investigated.
  • How the policy will be transparently implemented. 

The policy should be communicated to all staff, from the CEO down. It should be made available where all staff members can easily access it, for example posted on an intranet. 

It is clear that the content and nature of a whistleblower policy are key to appropriately implementing the legislation. To assist our clients in understanding the looming changes and preparing, we have published a white paper, which is available on our website for free download.

We also provide our industry-leading Grapevine Confidential Whistleblower Hotline, which is staffed 24 hours a day, 7 days a week. Grapevine provides employees with the opportunity to make anonymous complaints to trusted and experienced operators.

How to Deal with an Uncooperative Respondent

Vince Scopelliti - Wednesday, May 29, 2019

When conducting investigations in the workplace, senior staff and human resource managers often have to deal with uncooperative respondents. 

Understandably, this can significantly hamper the progress of the investigation. 

WHat is an uncooperative respondent

There are many ways in which the smooth running of an investigation can be negatively affected by an uncooperative respondent. This can arise when: 

  • A respondent refuses to answer questions put to them, meaning that the investigator cannot create a coherent picture of the events or the respondent's perspective.
  • A respondent is no longer employed by the company. This may make it challenging  to even get in touch with the respondent, let alone encourage them to participate in an investigative process.
  • The respondent is out of the workplace on a form of leave (sick leave, stress leave, workers' compensation) that would in some circumstances mean that they are either not medically capable of, or not medically cleared for participation in the investigation process.
  • A respondent intentionally holds up the investigative process. For example, by frequent and consistent rescheduling of meetings, failing to attend work on days when interview sessions have been set up, or otherwise failing to engage in necessary parts of the process. 

what if there is an impact on others involved in the investigation?

It is particularly frustrating to have to deal with a recalcitrant or difficult respondent when other parties to the investigation are adversely affected as a consequence. 

For example, some respondents may seek to intimidate other witnesses with a view to discourage them from participating in the investigative process. 

When dealing with this type of situation, investigators should encourage witnesses to participate in the process by confirming that their involvement remains confidential, and by redacting sensitive information such as names or identifying details when providing documents to the respondent. 

Further, witnesses should be advised that their involvement in the investigative process cannot and will not have any adverse impact on their employment. 

can an investigation occur without the respondent's involvement? 

When faced with a situation where a respondent is failing to cooperate, an investigator can proceed without their involvement in certain circumstances. 

Crucially, it is important that an investigator is able to demonstrate that the investigation proceeded in accordance with all requirements of procedural fairness. 

In particular, this means that there must be a document trail confirming all the efforts that have been made to engage with the recalcitrant respondent. There must also be evidence that attempts have been made to explain to the respondent that their non-involvement may impact but will not stop the investigation process. 

The intention here is to be able to demonstrate to a court, tribunal or other third-party reviewer that the investigator took all reasonable steps to include the respondent and their point of view in the investigation. 

No presumptions or assumptions can be made about the evidence used to determine the substantiation of allegations, if a respondent does not participate in the investigation process. 

how can a respondent be encouraged to participate?

Although some respondents simply will not cooperate, investigators should provide a raft of different options to encourage respondents to meaningfully engage in the process.  

These options include:

  • Encouraging respondents to provide written responses to a series of questions. This is likely to work best for the respondents who are nervous about incriminating themselves during interviews, or otherwise concerned about the investigative process itself. 
  • Reassuring respondents that, despite the allegations facing them, they are entitled to both confidentiality and the assurance of procedural fairness. This may alleviate the concerns of some respondents who feel that they may not be offered a fair right of response. 
  • Reminding a respondent of the entitlement to have a support person present during an interview if required. 
  • Reassuring a respondent that there is an opportunity to provide comment, feedback, additional information and/or evidence on any findings if considered necessary for clarification. 
  • In certain circumstances, it may be best to advise respondents that external investigators have been engaged to facilitate the investigative process. This is likely to be most appropriate in situations where the allegations are particularly serious, or where there is some concern that an internal investigative process may not be completed objectively. For example, if the other parties involved in the investigation are in senior positions or are close to the investigators.  

For more detailed information on conducting interviews, you can purchase a copy of our book, Investigative Interviewing: A Guide for Workplace Investigators. If you're conducting a workplace investigation and need assistance, contact WISE Workplace today. 

Can Employers Investigate if Complainants Ask Them Not To?

Vince Scopelliti - Wednesday, May 22, 2019

One of the more difficult aspects of managing an employment relationship is appropriately dealing with complaints, both from the perspective of the complainant and the accused. This is made even more complicated when a reluctant complainant brings something to the attention of Human Resources or management, then does not want it investigated. 

We examine why a complainant might not want to take an issue further, and what an employer's rights and obligations are in these circumstances.

why a complainant might be reluctant

There are many reasons why an employee might be reluctant to have a complaint investigated. These include: 

  • Fear of retribution - This is common in circumstances where the 'accused' holds a position of power over the complainant in the workplace. The complainant might fear reprisals and that their daily work life will become more difficult. This is particularly the case if the complaint relates to physical, sexual or emotional aggression. 
  • Fear that the complainant will not be taken seriously - The complainant might be worried their complaint will be considered 'trivial' or won't be dealt with objectively because of the position of the other party.
  • Time commitments - It is well known that an investigation will require a significant amount of time commitment from all parties. A complainant might not wish to be involved in a lengthy and time-consuming process. 
  • Lack of evidence - Complainants could feel that they are involved in a 'he said, she said' situation. The complainant might be concerned that an investigation will not ultimately support their version of events.    

The best way to address these concerns is for Human Resources or management to make clear to staff that all complaints are taken seriously and are duly investigated. This is regardless of who made the complaint, against whom it is levelled, and how much evidence might be required to fully conduct an investigation.

is a complainant allowed to withdraw a complaint? 

A complainant has the right to withdraw both the complaint and their support of any investigation. This generally spells the end of the investigation, because the person who receives a complaint is bound by confidentiality. This leaves the reluctant complainant as the only source of evidence to support an investigation.  

employer obligations to investigate

But employers are obliged to balance their duties of confidentiality with their obligations under workplace health and safety legislation. This includes eliminating discrimination and ensuring that everybody is able to undertake their jobs without unreasonable impostes. In circumstances of accusations of significant misconduct or even criminal activity, an employer may be justified in or even compelled to pursue an investigation, notwithstanding that a complaint has been withdrawn.

For example, if the complainant has raised issues of conduct that may constitute the commissioning of fraud, then the withdrawal of the complaint will not immediately result in the conduct alleged not being able to be independently investigated. There are also other considerations and duties of care that need to be taken into consideration before an informed decision to not undertake or to cease an investigation can be appropriately made. 

The dangers of a rigid policy structure

Although it is essential that all businesses have a complaints and grievances policy, there is some risk in having a procedure that is perceived as being too strict or rigid. If the general consensus amongst the staff is that there are only 'black and white' approaches toward dealing with complaints, this could result in staff being deterred from reporting incidents. This could ultimately result in employers breaching their legislative obligations and duty of care. 

At WISE Workplace, we have expertise in dealing with investigations involving reluctant parties. Talk to our team about full or supported investigation services for your organisation.

Workplace Bullying: Observations from Our Investigators

Vince Scopelliti - Wednesday, May 15, 2019

Like schoolyard bullying, workplace bullying is far from a new phenomenon. When people who may not have much in common outside work are thrust together on a daily basis, there are bound to be disputes, friction and potentially even outright hostility. 

Of course, any serious matters need to be dealt with by conducting a thorough workplace investigation. Recently, our investigators have noticed a number of trends in workplace bullying during the course of their work. 

We are seeing more bullying in the not-for-profit sector, a rise in false or malignant allegations of bullying, and increasing use of workers' compensation claims during the investigation process. 

increase in bullying allegations in the non-profit sector

There have perhaps been less instances of workplace bullying in the non-profit sector than in the more cutthroat 'for profit' world. However, investigators are noticing that these organisations seem to be experiencing an upturn in bullying allegations. 

This might be because many boards have recognised that, despite their non-profit nature, it is becoming increasingly difficult to remain a viable entity without a certain degree of commercial acumen. This often results in the hiring of personnel from more traditional commercial roles, which in turn flows through to a change of management style and a shake-up of the way things have always been done.

Existing staff may perceive these types of changes as 'bullying'. It is therefore important that any measures taken by the organisation, such as performance management or disciplinary proceedings can be demonstrated to be 'reasonable management action'. 

false allegations of bullying

False complaints of bullying also seem to be on the rise. A classic example here could be a situation where a team member has been advised by their manager that they are being informally performance managed and can shortly expect a formal process to commence. That team member may attempt to avoid the - appropriate - disciplinary action by claiming that they are being bullied by the manager. 

In other cases, the bullied may turn out to be the bully - making allegations as a defence against potential complaints.      

worker's compensation

Another trend observed by WISE investigators involves staff who are being investigated for their conduct claiming workers' compensation, perhaps for stress leave or mental health issues arising from workplace bullying or harassment. 

Although there are certainly instances of legitimate workers' compensation claims in these circumstances, it can also be a way for employees to maintain their income and ensure their continued employment while an investigation takes place. 

This is because, regardless of the outcome of any investigation into the employee's conduct and any determination made as a result, no disciplinary action can be taken until the lengthy workers' compensation process is complete. 

This can be frustrating for employers, who are hamstrung in their ability to follow through on reasonable and necessary management actions as a result of staff who may be attempting to circumvent the system and avoid termination.

WISE has been a national provider of workplace investigation services for over 29 years and has assisted countless organisations through the formal processes. Our highly skilled team has the experience to help organisations navigate the challenging issue of investigating workplace misconduct and internal grievances. We are experienced with dealing with all types of misconduct, including bullying and harassment claims, providing our clients a level of comfort that the process can be relied upon to ensure it is procedurally fair, and false allegations or delay tactics are identified quickly and the matter resolved.             

Sharing Information After a Workplace Investigation

Vince Scopelliti - Wednesday, May 08, 2019

For employers, the completion of a workplace investigation can feel like the end of a marathon. The relevant issues have been aired and discussed, a report delivered and decisions made. However, it is also important to effectively share relevant information with affected parties and the broader organisation as the investigation process draws to a close. 

It is likely that employees and other stakeholders affected by the workplace investigation will need feedback in order to comfortably move on from this often unsettling time in the workplace. 

Before commencing post-investigation communication, management should consider issues of confidentiality, the rights of all the affected parties and the best ways to share information across the broader organisation.

Providing confidence in the outcome

The period after a workplace investigation can be an excellent opportunity for both staff and management to make changes and move forward confidently from a difficult situation. 

Providing key stakeholders a broad summary of the investigative findings and a plan for improvement often fosters a sense of understanding and closure. For affected parties, a clear and concise summary of individual outcomes and actions will of course be appropriate and necessary. At every level, the goal is to communicate honestly and with a positive eye to the future.

keeping affected parties informed

Management should meet individually with those affected by the findings of the investigation. The process can be uncomfortable for those who are personally involved. There will often be a sense of apprehension, and in some cases, a curiosity about the decision-making process. 

Affected parties deserve a chance to have the outcomes and the decision-making process explained on a one-on-one basis. However, it is also important to ensure that only the appropriate amount of information regarding the investigation is shared. 

In particular, confidentiality will be necessary in relation to the statements of witnesses and other affected parties. Sensitive information, claims and descriptions have the potential to cause unnecessary harm and can jeopardise the integrity of the final report. 

A copy of the full report should not be released to those involved with the investigation. This document is accessible only by the employer at this stage. The affected parties to an investigation have a legal entitlement to be informed in writing of the findings, conclusions, recommendations and the basis of those findings. The parties therefore could be provided with a written summary of the full report, including the allegations and findings, at they relate to each individual party. 

A witness is not an affected party and should not be provided with the report or a summary unless they are also an affected party, such as a complainant or respondent. 

Communicating across the organisation

Confidentiality is of course of paramount importance. Neither witnesses nor staff want to be fed vague explanations about the outcomes of the investigations. A workplace investigation will commonly reveal deficiencies in policies and procedures, and/or the state of organisational culture. In clearly explaining the outcomes of the investigation, management can allay fears, dampen any gossip and provide a positive statement about any changes to come following the conclusion of an investigation. 

The investigation might well have been an unsettling time within the organisation. Post-investigation communication can be a valuable means of restoring confidence and providing a clear vision for future activities. For example, policies might need to be updated or individual procedures changed for the better. Positive communication about findings and the actions to be taken will help to restore staff equilibrium.

implementing change post workplace investigation 

It can be a challenge for management to know exactly where to start when explaining and implementing decisions following an investigation. 

At WISE Workplace we have significant experience with workplace investigations and helping to manage the aftermath of these processes. Should you require assistance in conducting workplace investigations and communicating outcomes, contact WISE today.

The Right Mix: Professionalism, Impartiality and Empathy

Vince Scopelliti - Wednesday, April 17, 2019

When conducting a workplace investigation, it is essential that there is consideration given to maintaining an appropriate balance between professionalism, impartiality and empathy. 

By ensuring that this balance is maintained, employers are best able to protect the interests of staff, and safeguard against allegations of inappropriate conduct during the investigatory stage. 

the need for professionalism

It is essential that professionalism carries through in all aspects of a workplace investigation. A failure to conduct the process appropriately could have far-reaching consequences for an employee - resulting in disciplinary action or even dismissal and for the employer in cases where the process, procedures and findings are legally challenged. 

Professionalism requires investigators to:

  • Ensure confidentiality - Keep any information that is disclosed or otherwise discovered during the investigatory process completely confidential. 
  • Communicate clearly - This means ensuring that all involved parties have a clear understanding of the process, the information that is required and anything else that can be expected as part of the investigation. 
  • Act with competence - When undertaking investigations into an employee's conduct, it is crucial that the investigator is thorough and performs all aspects of the role correctly and appropriately. This includes planning the investigation, conducting interviews and analysing the evidence. 

staying impartial in workplace investigations

Investigations must be impartial for the same reason they need to be professional. The investigator must try as much as possible to collect and analyse objective information and make a decision on that basis, not on personal feelings or subjective factors. 

In order to avoid perceptions of bias, all efforts should be made to ensure that there is no real or perceived conflict of interest between the person conducting the investigation and other people involved in the investigation, such as the complainant or the accused.

Staff who are known in the workplace to be particularly good friends (or particularly adversarial) with each other should not be involved in the same investigation other than as a witness. This may also extend to staff investigating their own direct reports. 

If your business is too small or otherwise structured in a way which makes it complicated for investigations to occur with impartiality, engaging a professional workplace investigator can help ensure an independent and unbiased process.

the value of empathy

Apart from just generally being the right thing to do, there is some real value in being empathetic with staff during the investigation process. 

Showing empathy in the workplace investigation context is likely to result in greater cooperation from witnesses and greater accuracy in statements. For example, most employees do not want to get one of their co-workers into trouble. By empathising with those staff and noting that they do not want anybody to get fired or have adverse consequences as a result of the interview, investigators can build up a greater rapport. 

It can also reassure those involved that investigators understand what they are going through, and that they will be supported through the process. An employee who has to make a complaint against somebody at work, or an employee having to deal with the consequences of a complaint and the potential disciplinary repercussions can suffer significant stress and trauma. This can have far-reaching consequences in the workplace.    

maintaining the balancing act

The three pillars of professionalism, impartiality and empathy are key to conducting a successful workplace investigation, but these can often be difficult to achieve in the average office. For this reason, you may wish to rely on external investigators to ensure that all key elements of a proper workplace investigation are fulfilled. If your organisation needs assistance with investigations, WISE offers both full and supported investigation services, or training for your staff.

Legal Professional Privilege and Workplace Investigations

Vince Scopelliti - Wednesday, April 10, 2019

When a workplace investigation is required, there may occasionally be good reason to seek legal professional privilege regarding the findings. This is particularly the case in matters that may require criminal investigation, such as fraud, theft or sexual harassment. 

So, is it sufficient to engage a law firm when undertaking workplace investigation if you wish to attract legal professional privilege? We take a look at the what privilege means, and its role in investigations.

what exactly is legal professional privilege? 

The concept of legal professional privilege means that communications between an employer and their engaged lawyers are confidential and need not be disclosed, for example to another party or in a court, if the communications have been created for the 'dominant' purpose of providing legal advice or in anticipation of legal proceedings.  

What is the significance of legal professional privilege? 

In many circumstances, an employer's inner workings and thought processes may be something that is best kept private. Ultimately, the key purpose of legal professional privilege is to permit employers and other parties, such as external investigations, to freely discuss information with their solicitors in order to obtain legal advice, without being concerned that the material will form evidence in legal proceedings. 

Employers may wish to maintain privilege and keep parts of certain documents confidential if, for example, there are issues with disclosing identities of complainants or witnesses, or permitting potentially inflammatory or commercially sensitive information being disseminated through the workplace and beyond. 

how can workplace investigations attract legal professional privilege? 

If an organisation wishes to obtain privilege over communications, it is not sufficient simply to engage a law firm to undertake or oversee the workplace investigation. The law firm's engagement must be able to be demonstrated as being for the dominant purpose of preparing for imminent legal proceedings, or providing advice in relation to those proceedings.

This was demonstrated in the decision of Gaynor King [2018] FWC 6006, in which Commissioner Wilson determined that the engagement of law firm Minter Ellison to conduct an investigation, under the auspices of providing legal advice, was really an investigation into workplace conduct within the employer council's policies and procedures. Accordingly, it was determined that legal professional privilege did not exist in those circumstances.      

loss of privilege

Legal professional privilege can be easily lost or waived. This can occur if a party explicitly states that they waive privilege, or if they provide a document to another party which would ordinarily attract privilege. It is important to note that it is generally irrelevant if the information was intentionally or accidentally provided - once that has occurred, it is hard to argue that the privilege should be maintained. Further, if a party attempts to rely on the contents of a document, it is rare that privilege will be successfully kept over the document. 

This was the case in the decision of Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517, in which the employer attempted to rely on the contents of an investigation report but did not wish to disclose it. It was held that relying on a document without providing access to Mr Bartolo was unfair, and the document had to be produced. 

WISE Workplace is highly experienced across all steps of the investigation process, including legal professional privilege implications. If you are seeking a robust, defendable investigation, contact us today!      

When to Suspend an Employee During an Investigation

Vince Scopelliti - Wednesday, February 20, 2019

One of the most difficult aspects of a workplace investigation is the moment when the investigator or employer realises the immediate suspension of an employee is required. 

We examine the warning signs that a suspension might be necessary, as well as the best way to handle this complex eventuality.

The what and why of suspension

Most investigations will follow a relatively regular pattern. The workplace investigator gathers information, a report is submitted and disciplinary action may or may not be taken by the employer. However, occasionally events can arise, requiring that an employee be suspended immediately before or during the investigation. Two questions arise - when and how should suspensions occur?

Suspension involves a compulsory period of absence from the workplace for the employee in question. Suspension will include full pay and any other entitlements accruing to the employee. This is in contrast to an employee being 'stood down' - where the employer has no further work available and payment is not required.

gauging the necessity of suspension 

So when is it warranted to suspend an employee during the course of a workplace investigation? Of course employers must do their best to prevent a workplace difficultly from snowballing in the first place. Preventative measures and policies will hopefully reduce the likelihood of misconduct occurring. 

Yet at times, a suspension becomes necessary before or during the course of an investigation. The types of serious misconduct that can require suspension include suspected fraud, assault or theft. A suspension will also be necessary if there is a serious possibility that the employee might tamper with evidence, or disrupt the investigative process. 

A 'suspicion' of misconduct cannot be a mere whispered rumour or gut feel. In essence, a prima facie case (a reasonable assumption on available evidence) should exist to demonstrate that the employee in question has in all likelihood engaged in a serious act of misconduct. 

The rules of procedural fairness dictate that the investigation be even-handed and impartial throughout - with no recommendations of any kind being made by an investigator until the compilation and presentation of the investigative report. 

However, sometimes allegations are particularly serious and time is of the essence. A risk assessment is required, as well as communication between the investigator and the employer regarding their immediately concerns.

is a suspension a 'legal and reasonable' direction?

In the case of Avenia v Railway Transport and Health Fund [2017], the Federal Court held that employers can issue 'legal and reasonable directions' to staff, with such directions including suspensions. Dr Avenia was the subject of an investigation into allegations of misconduct and was suspended on full pay, pending the investigation. 

The court found that this action by the employer was legal and reasonable due to the nature of the allegations and did not constitute, as Dr Avenia claimed, a case of unlawful termination.

balancing considerations

Suspension during a workplace investigation can certainly create unique challenges. The suspended party might become quite uncooperative and other staff might make assumptions about this person while providing evidence. A clear description of the suspension process must be provided within the investigative report, and a communication strategy put in place by the employer. 

Procedural fairness is the centrepiece of workplace investigations. However, employee welfare, health and safety are also essential considerations. Thorough documentation should be kept of any suspensions, with workplace investigators taking detailed evidence from the employer and others regarding this complex situation.

If an employee engages in misconduct and the employer suspends them before the disciplinary investigation, a fair procedure must be followed. If you need assistance on how to investigate and/or how to respond to inappropriate workplace behaviour, contact WISE today!

Why Counter Allegations Must Be Investigated

Vince Scopelliti - Wednesday, February 06, 2019

In the usual course of workplace investigations, it is often one person's word against another's. This is particularly the case when a serious allegation such as sexual misconduct has been made, and there are unlikely to be any witnesses to the event. 

When a serious allegation has been made, often the 'accused' then makes their own claims against the accuser, resulting in cross and counter-allegations.

the difficulty this causes for investigators

Occasionally, counter allegations are made immediately after the investigation is made known to the respondent, and this can make it more difficult for even the most experienced investigator to determine the true course of events leading up to that point. Counter-allegations also sometimes surface once an investigation is already in progress, making it harder for investigators to discern whether they are legitimate or simply made with the objective of revenge. 

The most important thing is that each allegation should be investigated independently. 

the danger of not investigating counter complaints 

A recent decision of the Fair Work Commission demonstrates the importance of ensuring that all allegations are thoroughly and independently investigated, regardless of the circumstances in which they are made. 

In the decision of Watts v Ramsay Health Care it was determined that an employer's failure to investigate complaints of bullying was in itself a form of bullying. 

In these circumstances, Ms Watts repeatedly advised her employer that she was feeling harassed and bullied by her peers, including her co-workers making accusations of Ms Watts smoking cigarettes past her allocated break, smelling of alcohol and failing to perform her duties adequately. 

Ms Watts raised those concerns in the context of a formal investigation by her employers into her own conduct. 

However, her employers failed to investigate Ms Watts' counter complaints on the basis that there was insufficient information and evidence to support Ms Watts' allegations, against a background where she did not name the offenders. 

The Fair Work Commission ultimately determined the failure to investigate the bullying investigations was an inappropriate and unreasonable management decision, and a breach of the employer's own discrimination, bullying and harassment policy.

what are the key lessons?

Perhaps the most important aspect of undertaking fair workplace investigations is ensuring that internal policies are followed, in particular focusing on:

  • Determining and implementing the threshold requirement for commencing an investigation, for instance requiring a formal written complaint before management action can be taken;
  • Being flexible in interpreting the information provided and not imposing arbitrary minimum standards, for instance requiring direct evidence of wrongdoing;
  • Taking into account the context surrounding the making of the allegations. 

 Employers and management should also ensure that they do not make early judgments or allow themselves to be biased in the context in which the allegations are made. In the case of Ms Watts, for example, her employers appear to have judged her allegations on the basis that they were made during the course of her own performance management process. 

It can be challenging for investigators when presented with counter-allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, or formal qualifications such as Certificate IV and Diploma in Government Investigations.