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.

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.

The Privacy Act: Implications for Workplace Investigators

Vince Scopelliti - Wednesday, April 24, 2019

There can be many questions, fears and insecurities that arise in the course of a workplace investigation. Experienced investigators are often asked by witnesses and other staff to divulge what has been said and by whom. This is unsurprising; after all, for one or more people their reputation and/or job could be on the line as a result of accusations made. 

Workplace investigators must take care when dealing with the information gleaned from their enquiries. The Privacy Act 1988 creates a legal structure that controls how personal information can be obtained and used. From initial enquiries through to the final report, workplace investigators must carefully weigh the privacy implications of their work.

privacy and workplace investigations

The Privacy Act 1988 places firm legal boundaries around how businesses and government agencies are to deal with the personal information of individuals, including employees. Most employers will have the capacity under the Act to deal with employee information as they see fit - providing it is for a lawful purpose. 

Workplace investigators are bound by the privacy legislation, just as any person or organisation who deals with private information is. This can lead to considerable challenges within the course of the investigation, such as having private information that might or might not be of interest to another party or witness within the investigation. It is only in very unusual circumstances that such disclosures could be lawfully made. Overall, consent will not have been given for release to another party; consent is crucial in all such situations.

personal information and the final report

The client is of course the employer in workplace investigations, and it is to the employer that briefings and reports must be directed. It is not unusual for investigators to be bombarded by employees with requests for the release of information, statements, witness accounts and the like, that have been elicited during the investigation.

The reason for the requests is certainly understandable - people will be anxious to know what has been said, by whom and how this could potentially affect their employment. Yet legally this is not information that the workplace investigator is at liberty to provide, unless express consent has been given. 

Personal information at the disposal of the workplace investigator must be returned to the employer, generally in the form of the investigator's final report. Complainants, respondents and witnesses are certainly afforded a summary of the report and findings. Yet actual statements and transcripts involving personal information are certainly protected under the Act from most curious stakeholders.   

Privacy and future proceedings

It makes sense to keep a tight hold on information released during the investigation. Considering that investigative reports are often later scrutinised for their evidentiary worth, it is important for workplace investigators to keep in mind the ramifications of privacy principles upon their work. 

For example, statements that are tainted by knowledge of what another witness has said could certainly be inadmissible or weighted lightly in later proceedings. A loose investigative structure can also see one party privy to more information than another, raising inevitable questions of procedural fairness. 

Navigating a workplace investigation is certainly a matter of juggling many moving parts. Keeping a firm reign on the use of personal information during the investigation is one task that must remain at the forefront of all activities and decisions. For assistance on ways to ensure compliance with the Privacy Act 1988 during an investigation, get in touch with WISE.

How to Take Action when Employees and Alcohol Mix

Vince Scopelliti - Wednesday, March 27, 2019

Alcohol and workplaces never mix well. No matter the sort of work they do, employees should not be in the workplace when they are under the influence or still suffering the effects of alcohol consumption. This includes drinking at work or immediately before starting work, and those who are still impacted by a big night out. 

So what steps should an employer take when dealing with a worker who they suspect is intoxicated in the office?

approaching an intoxicated employee

Occupational health and safety legislation throughout Australia places an obligation on employers to protect not only the safety of the intoxicated employee, but that of all other employees as well. 

This means making sure that an intoxicated employee can't hurt themselves or anyone else. Accordingly, employers have an obligation to approach intoxicated employees and ask them to leave work immediately (without driving a vehicle, of course!). 

However, being intoxicated at work does not necessarily mean that employees can be terminated immediately. When determining whether a dismissal for intoxication in the workplace is 'valid' or can be upheld, courts will consider several factors. These include whether the company's drug and alcohol policy or any contractual arrangements in place with the employee are sufficiently clear to demonstrate that there is a 'zero tolerance' policy for alcohol in the workplace. 

Although employees should certainly be disciplined for being intoxicated at work, employers who are wishing to avoid claims for unfair dismissal should consider interim steps such as clearly worded warnings rather than summarily dismissing staff.

factors that may contribute to alcohol abuse

Of course, prevention is always better than cure. Employers should give some thought to factors that may encourage their staff to over-indulge in alcohol to the extent that they are intoxicated in the workplace. 

Key risk factors include:

  • Age, gender and socio-economics. According to the Alcohol.Think Again campaign, young men who work in lower skilled or manual occupations are statistically most likely to be involved in 'risky drinking'.
  • Isolation (geographical isolation or social isolation within work peer groups)
  • Bullying, harassment and other interpersonal difficulties
  • Poor supervision, or support in the workplace
  • Difficult working conditions
  • High levels of stress 

How alcohol use can impact the workplace

An intoxicated employee can pose a risk to the safety of themselves and others. This is magnified when the employee is in a customer-facing role, or they are required to do manual work involving precision or machinery. 

Regardless of the nature of the work however, job performance can suffer as a result of the poor concentration and low productivity that will likely result from intoxication.

Steps to address alcohol use in the workplace

In addition to mitigating workplace risk factors, employers should ensure that they have clear and detailed drug and alcohol policies which identify under what conditions an employee would be determined to be 'intoxicated'. Policies should also clearly spell out the consequences of breaching those conditions. 

Employers must ensure that any breaches of the policy are thoroughly and objectively investigated, and any required disciplinary action is taken swiftly. 

If you would like to know more about risk management and creating effective drug and alcohol policies, or you require assistance with investigating an incident involving an intoxicated employee, contact WISE today.

Whistleblower Changes - Getting Your Policies Right

Vince Scopelliti - Wednesday, January 16, 2019

With the new changes to whistleblower legislation soon to be debated and enacted, it's essential to assess whether or not your business is compliant. An important part of ensuring compliance with the changes lies in the development of robust policies to protect whistleblowers. The Human Resources function has a central role in preparing staff for the new approach to whistleblowing in the workplace. 

We examine best-practice policy development for the support of whistleblowers in the workplace, including compliance hazards to watch out for as the new legislation takes effect. 

recapping the changes

We have previously examined the architecture of the new regime, due to be enacted in early 2019. The proposed changes to legislation emphasise the need to not only protect workplace whistleblowers when they speak up, but to penalise organisations that fail to provide protection from harm. As part of these new requirements, whistleblower policies must be current, workable and robust. Tokenist policies and procedures that fail to effectively protect whistleblowers are no longer acceptable. 

how can hr guide the process

The most important focus for Human Resources departments will be the development and maintenance of a whistleblower-friendly culture: This is a good news story, the government has recognised the importance of whistleblowers in the fight against corporate wrongdoing and has acted in a positive way to encourage and support this practice. 

In developing quality training, in-house publicity, policies and procedures, HR needs to ensure that they guide staff and management towards a more supportive and knowledgeable stance in relation to whistleblower protections. 

best-practice in policy design - are you compliant? 

In view of the legislative changes due to be delivered, organisations are clearly required to 'get their house in order' when it comes to the development and maintenance of appropriate policy instruments. It is not sufficient for example to have policies that merely provide lip service to the ideal of whistleblower protections. 

There must be clear and user-friendly mechanisms for anonymous reporting and disclosure - even if there is a mere suspicion of corruption, graft, fraud or other foul play in the organisation. 

Importantly, it is no longer necessary to approach a direct supervisor to report an issue - the new legislation reflects a growing understanding that ostracism and discrimination can and does occur if a whistleblower is limited in terms of reporting mechanisms. 

Now is the time to examine your organisation's policies around whistleblower protection, to establish if they comply with the widened scope of the new legislation.

compliance hazards to watch out for

In developing the mechanisms to protect whistleblowers, there are a number of potential pitfalls to be aware of. Firstly, organisations can be liable if they fail to prevent harm to a whistleblower as a result of workplace reprisal. Reporting structures must be watertight in terms of anonymity and discretion. The smallest leak can lead to significant emotional and career harm for those brave enough to blow the whistle. 

A second related hazard is policies that are too general to be of any real use to potential whistleblowers. Policy documents should clearly and distinctly answer the 'what, how, who, when' of whistleblowing; when time is of the essence, it is important that staff can act immediately with their concerns. Further, whistleblower policies and training should explain clearly to all staff the repercussions for any harm caused to a whistleblower due to their disclosure. The key is a strong culture, where encouragement and protection of whistleblowers is a core element of business-as-usual.

how WISE's grapevine hotline can help

WISE is well versed in the changes of the whistleblowing legislation, and has recently published a whitepaper that can help answer all your questions regarding these changes. In addition, we have a whistleblower hotline, known as Grapevine, which has been running since 2016. The service is entirely professional and anonymous, and available 24/7 to concerned whistleblowers.

If you would like to know more or would like a cost estimate to implement our confidential hotline in your workplace, contact WISE now. By including the Grapevine Whistleblower Service in your whistleblower policy framework, your organisation can go a long way to fulfilling its requirements under the new legislation.

Managing Mental Illness in the Workplace

Vince Scopelliti - Wednesday, October 17, 2018

What can employers do to support and effectively manage employees who may be struggling with their mental health?

With an estimated one in five Australian adults suffering from a mental illness in any given year, this is becoming an increasingly important question for organisations to answer. 

From talking to an employee with a mental illness to addressing performance concerns, here's how employers can help support workers with mental health issues. 

how to talk about mental illness with a worker? 

Employers can't be expected to be experts, but when speaking with an employee about a mental health issue, it is helpful to have a basic understanding of the condition in question. This might include any symptoms, specific terms that relate to the condition and types of medications the employee is likely to be prescribed. 

How conversations are framed is crucial - employers should refer to employees as 'having' mental health conditions, as opposed to 'being' schizophrenic or depressed. Employers should also understand the difference between episodic and chronic mental health issues. 

Prior to conversations with employees about their mental health, employers need to ensure that they are prepared, have planned what they wish to discuss and offered the employee the opportunity to bring a support person with them. Employers may also make use of the assistance of a qualified mental health professional when approaching these meetings. 

concerns regarding an employee's mental health

While a physical injury might be obvious, it can be much more difficult to determine if an employee is struggling with their mental health. It is important for employers to remember that there isn't always an obligation for employees to disclose their mental health status. 

In these circumstances, an employer concerned about an employee's mental health can speak confidentially with them and advise them that they may be able to access support from a formal Employee Assistance Program (EAP). The employer may also wish to ask whether there is anything that they can do to modify or improve the workplace to assist the staff member. 

what to say to other employees

If an affected employee has volunteered details of their mental illness, and has agreed to disclosure, employers may wish to sensitively and respectfully disseminate information about the specific condition, or even arrange for mental health specialists to attend the workplace and provide information. 

Employers must not breach an affected worker's privacy and disclose matters that are personal to them. On some occasions, however, an employee's mental health condition may potentially impact other colleagues, or health and safety and must be disclosed. 

When a disclosure has been made, employers need to ensure co-workers:

  • Are supported in relation to any increased workload arising from their colleague's absence;
  • Have their concerns addressed and discussed in an appropriate forum;
  • Are offered access to internal or external counselling services;
  • Are protected from possible harm. 

Making reasonable adjustments

Workers who are struggling with mental health issues may find that they are able to contribute in a much more substantial way if their employer is prepared to make reasonable adjustments. These could include:

  • Flexible working hours or working from home arrangements
  • Moving an employee's physical location (i.e. into a quieter area, closer to a window, away from a co-worker who is triggering their condition)
  • Permitting employees to record meetings or take electronic notes if they are concerned about their memory. 

Addressing performance concerns

When an employer has concerns about an employee's capacity or capability to perform their duties, it is appropriate to apply the organisation's standard performance management system, and provide support to assist the employee. This support should be offered regardless of whether or not the employee has disclosed a mental health condition. 

Employers should consider:

  • Personal circumstances that may contribute to a worker's performance issue, as would be the case for all workers; 
  • Whether a mental illness may be contributing to the poor performance;
  • The seriousness of the performance concern (as for more serious matters, such as violence, there may be no option but to take strong disciplinary action regardless of whether there is a reason, such as a mental illness); 
  • Whether the performance concern relates to a key part of the job or whether reasonable adjustments can be made;
  • Encourage and enable the worker to discuss the performance concerns and whether there are any health issues that may have impacted on their performance. 

If the concern doesn't resolve and the adjustments don't work, employers may need to revisit the issue at a later date. 

If you'd like more information, check out our series of articles on this topic, starting with Mental Health in the Workplace. WISE can also assist with drafting and implementing policies and guidelines around disclosure, reasonable adjustments and speaking to colleagues about mental health.

Mental Health in the Workplace

Vince Scopelliti - Wednesday, September 26, 2018

Making sure that your staff are fit and healthy, enabling them to perform their duties at an optimal level, forms an essential part of being an employer of choice. But beyond ensuring that your staff are physically capable, it is essential to also look after their mental wellbeing. 

Underestimating the importance of mental health in the workplace is likely to have lasting impacts on your workers, your business and clients. 

OHS legislation requires employers to provide a safe and healthy work environment for all workers, which does not cause ill health or aggravate existing conditions.

In a series of articles, we'll examine the impact of mental health issues in the workplace, how to take appropriate steps to support staff suffering these conditions, and how you can promote mental wellness in your organisation. 

WHAT IS mental health?

Mental health is about emotional, psychological and social wellbeing. For an employer, this means keeping an eye on whether your staff are struggling to keep on top of things inside and outside of work, and taking steps to assist them with dealing with any difficulties that may be impacting their productivity. 

There are many types of mental illness, including depression, anxiety, obsessive compulsive disorder, personality disorders (such as borderline personality disorder), bipolar disorder, and schizophrenia.

the scope of the issue

According to the Australian Human Rights Commission (AHRC), around 45% of Australians aged between 16 and 85 will suffer from the symptoms of mental illness at some point during their lives. In any given year, one in five adults will deal with a mental illness. 

Some workers will commence their employment already suffering from symptoms of mental illness, while others may develop their mental illness while at work. 

In many cases, the mental illness will develop separately from circumstances in the workplace. In others, a negative or "unhealthy" work environment will contribute to staff developing mental health issues or may exacerbate underlying conditions. 

Some factors which can contribute to poor mental health in the workplace include job stress, poor workload management or unrealistic deadlines, poor communication, bullying and an overall lack of support.

the impact of poor mental health

Research shows that the cost to business of failing to pay proper attention to mental health is significant. 

The AHRC reports that workers compensation claims relating to stress and associated mental illnesses cost Australian businesses $10 billion every year. The failure of businesses to recognise the potential impact of mental health issues and failure to implement preventative or remedial measures such as early intervention, has been estimated to cost over $6.5 billion per annum. 

Absenteeism due to mental illness is another issue, with an estimated 3.2 days lost each year per worker. 

The difference between job stress and psychological injury

When it comes to identifying mental health issues in the workplace, there is a difference between work stress and psychological injury. 

Psychological injury includes behavioural, cognitive and emotional symptoms which have the potential to significantly impact a worker's ability to perform their job and interact with co-workers. 

This can be distinguished from job stress, which is generally a reaction to a specific situation which can be resolved, and is not a standalone injury.

To disclose or not to disclose 

In some circumstances, it is important for employees to disclose their mental health status. This is particularly the case if they are taking medication which could affect their ability to perform their usual employment, or if there are general concerns about safety or interactions with other staff. 

An employer has an obligation not to discriminate against staff because of their physical or mental attributes, including their mental health.

Managing and supporting mental health in the workplace

Employers can provide support by having guidelines in place for how to talk to a worker who has disclosed that they are suffering from mental health difficulties, and how employees can adjust to dealing with a colleague with a mental health issue. 

It's also essential for employers to know how to address performance concerns involving employees who are experiencing mental health struggles, without discriminating or taking ill-considered disciplinary steps.

Creating a safe and healthy workplace for all

This starts with non-discriminatory employment practices and implementing long-term strategies to promote a healthy culture and a positive workplace where staff feel they are making a meaningful contribution to an overall goal, are supported and happy to come to work. 

It's also important to create direct services to assist workers with mental health issues who require support and adjustments in the workplace. According to the AHRC, every dollar spent on identifying, supporting and managing workers' mental health issues, yields nearly a 500% return in increased productivity. 

It is highly likely that at least one worker in your workplace will, at some point in time, have a long or short-term mental illness. While you do not need to become an expert in mental health, having a better understanding of what mental illness is (including its possible effects on a worker) enables you to be more effective in handling issues that may arise.  

Can You Deny Access to Workplace Investigation Documents?

Vince Scopelliti - Wednesday, July 18, 2018


Parties involved in a workplace investigation will often wish to gain access to documents that form part of the process. A difficult question for investigators is when - or if - it will be appropriate to release particular information. The reason for the request and the nature of the information will be key considerations, plus the investigator must find the best way to ensure that the access process is fair and transparent. As a recent case involving Australia Post reminds us, investigators need to carefully consider any decision to deny access to workplace investigation documents.

When to disclose information 

During the course of a workplace investigation it is entirely appropriate to keep parties informed of progress. In many cases, it will be quite simple to provide general information that keeps parties up-to-date, yet preserves any necessary privacy boundaries. One regular complaint from those under investigation is that they were 'kept in the dark' at every turn of the process. However, overt secrecy is often not necessary; disclosing information about delays, the nature of inquiries and the broad substance of allegations for example will generally not be problematic.

Another situation where information will need to be provided is when the investigator is required to do so by law. This could include as a response to a subpoena, summons or other court / police request, and should be responded to promptly.

Why should information be disclosed?

In many ways, it is simply professional best-practice to keep stakeholders informed of the progress of an investigation.

One specific advantage in providing regular updates and briefings is the effective management of expectations. Investigations can leave people feeling anxious, and the process can become impeded if individuals are forced to continually complain about non-disclosure. By regularly providing information about the scope, goals and process of the investigation, the 'temperature' in the workplace can be kept under control.

Providing information is also necessary to ensure transparency and accountability. The investigative process should, as far as possible, be able to withstand outside scrutiny both during and following completion. If it is later revealed that one party received greater assistance or exposure to materials than another, the chances of utilising the investigation outcomes will be greatly reduced.

A case in point

In the case of 'LC' and Australia Post (Freedom of information) [2017] AICmr 31, an employee made an FOI request for information relating to a workplace investigation.

Australia Post declined the request on the basis that the material was exempt according to the 'personal private information' exemption under s47F of the FOI Act. However, the commission found that the exemption does not apply to information that is likely to have a 'substantial adverse effect' on a person subject to investigation.

Investigators must ensure that the process remains transparent, and that any and all decisions to prevent disclosure are carefully considered in accordance with the legislation.

ensuring procedural fairness

One common mistake made by new workplace investigators is to see procedural fairness as a lightweight idea without much application in the real world. We know from experience that nothing could be further from the truth. Those under investigation deserve to know the nature of allegations made, to be given the opportunity to be properly heard, to have a support person if needed, to be questioned by an unbiased individual, and of course to have all relevant evidence considered in the decision. Disclosing information in an appropriate way, and at the right time, can certainly assist the overall fairness of the process - and prevent problems in the future.

When not to disclose

Although transparency and fairness are important elements of the workplace investigation, there are times where information should certainly not be disclosed. The right to privacy might require the investigator to protect information such as addresses, sensitive personal material or intellectual property matters as examples.

Further, it might be necessary to redact documents in order to protect anonymity or to withhold certain aspects of an allegation. However, overall investigators must ensure that a party is not substantially disadvantaged by the non-disclosure - a fine balancing act indeed.

The Australia Post case confirms our own experience in conducting fair workplace investigations. We certainly know that each situation will depend upon the particular facts when it comes to disclosing information to the parties involved.

If you need assistance on whether or not to disclose information during an investigation process, WISE provides supported investigation services and are here to help.