The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.

Making Findings in Workplace Investigations

Vince Scopelliti - Wednesday, August 07, 2019

When a workplace investigation is coming to an end, one task can seem deceptively simple - making findings. 

It might seem that because all the information is now available, the investigator can surely just state 'the obvious' in their report. Yet as with most tasks in the investigative process, quality outcomes require much greater consideration of relevant material. Before findings can be made, a thorough analysis of the evidence needs to occur. Findings will need to link clearly with this analysis - and all evidence must be considered.

Issues around organisational policies, plus the correct weight to be given to particular pieces of evidence, are further pieces in the puzzle of investigative findings that need to be addressed.  

analysing the evidence 

Workplace investigators are required to carefully and objectively analyse all available evidence. This includes the evidence that both supports and rebuts a likely finding. For example, if three workers said that it happened but one states that they are not sure, all four pieces of evidence must be analysed and discussed with equal consideration.

It is certainly unacceptable to simply discard a piece of evidence because it does not fit with the majority. As well as not being transparent, experienced investigators know that a small piece of contrary evidence might actually support a bigger finding at another point of the process. 

The analysis of all evidence will also incorporate the consideration of the weight to be attributed to each piece of evidence. This requires an investigator to consider for example the probative weight and value attributed to direct evidence in comparison to hearsay evidence. 

Findings need to be clear and defensible; links from evidence, to analysis, to findings and back again must be logical and well-explained. Essentially, the investigator is asking whether or not the evidence supports, on the balance of probabilities, the findings that are eventually made.  

following the organisation's policies  

As part of making accurate and defensible findings, investigators need to consider and understand the organisation's policies. Logically, in order to make a finding whether or not inappropriate behaviour has occurred, the first step will be an examination of the policy documents. 

Has the conduct in question as alleged breached a policy - and were the policies and procedures clearly understood by all concerned? General state and commonwealth laws will of course also play a part in findings, and in combination with organisational policies, will assist the investigator to mark the perimeters of acceptable behaviour.

weighing the evidence

Making findings can sometimes feel like the completion of a rather large jigsaw puzzle. Evidence is examined and analysed, with pieces being compared to one another for similarities and differences. Investigators need to consider the relevance of each piece of evidence to the allegations and overall investigation, giving more or less weight to some pieces of evidence over others for any number of reasons. 

Sometimes more weight will be given to a piece of evidence because it is for example, clearer, more compelling or better corroborated than other evidence.

remember briginshaw 

The care with which evidence is examined and weighed can have significant consequences for any potential future proceedings.

For serious allegations, employers will need to be able to rely on high-quality evidence from the initial investigation, in order to meet the evidentiary threshold. The standard of proof in all civil matters is 'the balance of probabilities', requiring that parties meet this standard via the evidence that can be marshalled in their favour. 

In matters where serious allegations have been made, the courts - beginning with Briginshaw v Briginshaw - have indicated that the standard of proof itself remains the same in all cases, but in serious matters where the finding is likely to produce grave consequences, the evidence should be of a particularly high probative value in order to meet the mark.

High-quality OUTCOMES

It is important for employers and their investigators to ensure that findings of workplace investigations can withstand the highest level of scrutiny and appeal. Given the complexities surrounding current workplace investigations, a high level of skill is required to ensure report findings are both sound and defensible. To ensure that you are assessing evidence effectively, WISE provides training in conducting workplace investigations

Interview Techniques for Workplace Investigations

Vince Scopelliti - Wednesday, July 24, 2019

In any workplace investigation, there will be multiple competing factors for an investigator to consider. One core issue is developing the appropriate interview strategy.

Investigative interviewing requires careful consideration of the purpose of the investigation, and exactly who will be interviewed. There is also the question of tone - ensuring that the interview remains cordial and does not begin to resemble an interrogation. 

At WISE Workplace, we have a wealth of experience in investigative interviewing, including the best practice interview techniques to bring to the task.  

the purpose of the investigative interview

The purpose of the investigative interview is to glean relevant information about a workplace allegation in a manner that is professional and fair. 

In devising a good investigation strategy, the interviewer will carefully select who is to be interviewed during the process. 

People with first-hand knowledge are the key - not those who simply heard a rumour or were told something second-hand. Such statements constitute hearsay, and can reduce the weight of the evidence and the overall value of the investigation if relied upon. It is important for the investigator to identify and interview those people who were directly involved, or who witnessed a situation first-hand. 

Ideally there will be enough witnesses available to corroborate evidence. If facts such as the identity of an alleged bully can be verified between witnesses, or certain actions can be adequately cross-checked, the resulting findings and report are likely to be sound. 

Having a support person available for witnesses is always recommended. Being interviewed for a workplace investigation can be stressful for any of the parties. The presence of a trusted support person can help to calm the witness.

interviewing or interrogating? 

It is vital to create the right environment for the interview. At a fundamental level, the interviewer should avoid any method of questioning that could be seen as interrogating rather than interviewing.

Keep the tone conversational and allow enough time to develop rapport across the interview. Inviting questions around how the interview will work, plus describing procedural aspects like recording and note-taking can assist in reducing anxiety. 

State the obvious. For example: "This is a difficult situation involving certain allegations in the workplace, and we appreciate your help here today".

Offer the witness the option to stop and clarify any questions and to take comfort breaks if needed. Firing off questions and requiring immediate answers is no way to develop rapport and will not illicit the best information and or evidence. 

Adopting a stern or hostile demeanour is unproductive and can also lead to claims of bias. A professional interviewer should never see themselves as a TV detective with a rough attitude and a light shining in the respondent's face! The interview is not seen as a technique used to extract a confession from a witness. Building good rapport is the key to a quality investigative report that stands the test of time.

high-quality interview techniques 

The experienced interviewer understands how to conduct the workplace interview with transparency and objectivity. While the personal information of others needs to be protected, the witness should be informed of all relevant material relevant to the allegations. Even alarming or distasteful allegations should be dealt with professionally and objectively. 

Building rapport with a witness is essential for effective interviewing. Structured processes such as the PEACE model of interviewing can help interviewers to cover all aspects of a professional interview. 

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. The model provides eight steps that should be undertaken which includes:

PLANNING: Examine what planning and preparation need to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed. 

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.  

Other tools such as active listening and open questions are also excellent ways to gather the best information, without raising problems of biased interviewing - perceived or otherwise. 

Don't rush the witness as they tell their story. Ask open questions, which allow the witness to provide a spontaneous and genuine description of events, rather than being fenced in by closed questioning or unnecessary interruptions.

Mastering the Investigative Interview 

Obtaining first-hand witness evidence by way of interview is essential to uncovering the facts of a matter. However, conducting interviews into serious workplace issues such as bullying and sexual harassment can be a difficult and sometimes a daunting task. 

WISE investigators have mastered key interviewing techniques and have extensive experience in conducting investigative interviews across industries. We have developed a comprehensive guide to steer HR professionals and investigators through the process. Purchase our book Investigative Interviewing: A Guide for Workplace Investigators for the best tips on successful interview techniques.

How to Write Letters of Notification and Allegation

Vince Scopelliti - Wednesday, July 17, 2019

During the process of conducting workplace investigations, it is generally necessary to prepare letters of notification, and later, letters of allegation. 

We take a look at the difference between the two, and provide some tips on how to prepare these important documents. 

notifying the parties involved

The letter of notification serves as confirmation that an investigation is going to be launched. These formal documents are sent to the respondent, the complainant and any witnesses involved in the investigation. 

It communicates how the process of the investigation will occur, who will be conducting it, as well as detailing the involvement required from the individuals.

For the complainant, this will generally mean the formalisation of their complaint and participation in an interview. A respondent will also need to undergo a formal interview and be advised of their rights, such as having a support person attend. 

A letter of notification should ideally be prepared and sent as soon as an investigation plan has been finalised.

the elements of a letter of notification

When writing a letter of notification, it is important that it contains specific details including:

  • What exactly is being investigated.
  • Who is conducting the investigation. It is important to identify which members of the organisation will be involved.
  • A formal request for interview. 
  • The offer of a support person to all parties who will be interviewed.
  • A reminder for all parties involved to maintain confidentiality around the process, and the potential consequences of a failure to do so. 

Writing letters of allegation

Although similar to a letter of notification, a letter of allegation contains more detailed information. Instead of being addressed to all the parties involved, only the respondent will receive a letter of allegation. 

The letter should clearly set out: 

  • Details and particulars of the allegations. This information should be as specific as possible, to give the respondent a genuine opportunity to respond to the allegations. 
  • A request for supporting documents. The respondent should be advised of the opportunity to provide any information or evidence supporting their position. 
  • A formal request for interview. Although this has already been identified in the letter of notification, the letter of allegation reiterates the requirement for participation in the interview process. The letter should also reiterate the right of the respondent to have a support person involved in the process. 
  • The letter is required to stipulate if there is a finding of misconduct, what disciplinary actions may be considered and imposed. 
  • A further reminder of the need to maintain confidentiality.  

A letter of allegation should be sent after the complainant has been formally interviewed. This means that detailed allegations can be put to the respondent. 

Do's and do not's when preparing letters of allegations

When preparing a letter of allegations, it is important that procedural fairness is maintained. The respondent should have only clear allegations put to them, supported with evidence where available of the conduct or behaviour alleged. 

The letter of allegation should avoid making any conclusions about the investigation. 

Importantly, it should also demonstrate that the investigators and decisions-makers involved are objective. 

Communication with the parties to a workplace investigation is critical in ensuring a fair and considered approach is taken. Failing to comply with the steps of procedural fairness can impact on the soundness of investigation outcomes, findings and recommendations and leave employers open to decisions being overturned. 

WISE Workplace provides training in investigating workplace misconduct. This training is aimed at providing practical skills that enable you to draft procedurally fair and legally compliant letters of notification and allegations.   

Creating an Action Plan: ToR and External Investigators

Vince Scopelliti - Wednesday, July 10, 2019

When conducting a workplace investigation, it is crucial to be able to demonstrate that appropriate procedures have been followed. This is essential in defending any subsequent action that may be taken. 

It can be helpful for employers to create an action plan utilising Terms of Reference (ToR) and the services of an external investigator to keep the investigation process on track. 

3 Key principles for drafting the tor

The ToR is a framework that provides structure and a plan for the investigation. Without it, an investigation runs the risk of becoming too broad or unwieldy. There are three basic guiding principles for employers to keep in mind when drafting the ToR. 

1. Reason

This sets out why an investigation is necessary, which people are anticipated to be involved (at least the complainant and respondent) and the key questions which need to be answered as a result of the investigation. 

2. Remit

The remit section provides the parameters for the investigator's involvement and identifies what the investigator is supposed to do. 

In certain circumstances, the investigator will be required simply to engage in a fact-finding mission, in order to collate information for the employer to make a final determination or outcome. Alternatively, an investigator may be tasked with dispute resolution, or even providing disciplinary recommendations. 

This section can also identify what, if anything, is 'off limits'. For example, an investigator may be prohibited from having access to commercially sensitive information. 

However, it's also important to note that an investigator will be hampered if there are too many restrictions placed on them. 

3. Report

This practical aspect of the ToR identifies in what format the final report is to be provided. The due date and expected distribution list should also be noted in the ToR.

In order to maximise the success of the investigation, the TOR should be drafted as soon as possible after a decision has been made to investigate a complaint.

Why appoint an external investigator? 

Even the most experienced HR professional may struggle to undertake a completely unbiased investigation. Cross allegations and accusations of unfairness can cloud issues and throw the investigation off-track. 

By outsourcing investigations of this nature, employers can prevent any perceived or actual apprehension of bias. External investigators are impartial, and in some cases, better able to conduct an objective investigation than someone internal. 

An external investigator is particularly helpful in circumstances where: 

  • The organisation requiring an investigator is small and all staff are well known to each other.
  • The allegations requiring investigation are particularly egregious, serious or even traumatic.
  • There is potential for criminal or civil proceedings to arise out of the investigation.
  • Senior management or HR staff are directly involved in the complaint, whether as respondents or complainants. 

External investigators also have a level of experience and expertise that can be difficult to match in-house. Even with clear ToR, an internal investigator may find investigating the allegation and writing the final report challenging. 

Appointing an external investigator can also save time. Often, the person chosen to head an investigation internally, will also still have their core duties to perform.

Engaging an external investigator

When you engage an external investigator, it's a good idea to write a letter of appointment/engagement. This should set out clear instructions and confirm the scope of the investigator's role. The ToR should also be included. 

If you require assistance in defining the scope of your investigation, or would like to engage an expert to tackle workplace matters requiring investigation, our investigators are committed to dealing with complaints independently, providing expeditious, thorough investigations with integrity. Visit our website or contact WISE to find out more. 

Receiving Workplace Complaints

Vince Scopelliti - Wednesday, July 03, 2019

Employers should be well aware of the legal and associated requirements that come into play when someone in the workplace raises their hand with a grievance. 

Complaints about unacceptable and/or inappropriate behaviour can arise from any work area, and in regard to a wide variety of issues. Grievance handling needs to be fair and consistent - yet with each situation being approached on an individual basis. 

We take a look at creating a sound process for the receipt of complaints, which reflects and follows existing policies and procedures.

types of complaints

Complaints can be made in relation to all manner of behaviours. Examples include allegations of bullying, harassment and sexual harassment and even - in workplaces involving children - child abuse. 

Harassment itself covers a wide range of behaviours that could occur on or offsite, including those via digital communication such as email, social media platforms and messaging. 

Employers should note that alleged perpetrators can be colleagues, managers and even occasionally worksite personnel such as contractors.

steps to take when receiving a complaint 

For employers it can sometimes be difficult to know just where to begin once a complaint has been received. At a basic level, all internal procedures and policies should be carefully followed to ensure fairness and consistency. 

A clear and well-understood complaints process needs to be in place prior to the (inevitable) receipt of a workplace complaint. All those involved should receive even-handed treatment, with any decisions being made in a defined and measured way. 

In some instances, the alleged behaviour will constitute reportable conduct, with an employer obliged to notify a specified body about the allegation under a compulsory reporting regime. 

As society comes to grips with some of the behaviours that can occur in relation to our most vulnerable individuals, more stringent reporting requirements for employers continue to be developed. For example, the National Disability Insurance Scheme has been designed to ensure that employers take timely and objective steps upon receipt of any relevant complaint

key principles when responding to complaints 

In the case of complaints, it pays to ask some basic questions about the situations such as:

  • Is the behaviour unacceptable or not?
  • Does the situation warrant measures to minimise the risk of ongoing harm?
  • Do I have a clear understanding of the issues?
  • Do I need additional information or assistance?
  • Can the matter be safely resolved between the parties or at a team level?
  • Should the matter be progressed to an investigation? 

A key issue is the manner in which the people involved in a complaint are treated and how any required information is communicated.

At all times, employers should take the matter seriously, refrain from victimising any individual and ensure the same treatment for all personnel involved.

Confidentiality should be maintained at all times and support mechanisms put in place for what is, inevitably, a difficult time in the workplace. 

Taking the right approach

It is vital for employers to be aware of their legal obligations and best practice when it comes to addressing workplace complaints. Complaint handling can become quite complex depending on the type of complaints and the number of people involved. 

WISE provides professional and up-to-date training on conducting workplace investigations. Our courses are specifically designed for those engaged in the investigation of workplace misconduct, including bullying and harassment. Please call us if you would like expert assistance around complaints processing and the best way to ensure fairness if - and when - a workplace complaint is received.  In addition keep an eye out over the next seven weeks, as we will be publishing a series of articles, in which we examine the workplace investigation process. 

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.

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.