No Proof: The Key Role of Circumstantial Evidence

Jill McMahon - Monday, December 14, 2015
No Proof: The Key Role of Circumstantial Evidence

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

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

Direct versus circumstantial evidence

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

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

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

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

Balance of probabilities

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

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

Applying the standard of proof

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

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

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

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

The employee might respond to the allegations by saying that: 

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

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

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

Handling circumstantial evidence

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

Secret Santa Shockers: How to Have a Work-Safe Kris Kringle

- Monday, December 07, 2015
Perils of the Office Secret Santa

Secret Santa, also known as Kris Kringle, is a gift-giving tradition celebrated by workplaces all over Australia. Although popular, it also has the potential to go wrong. Following on from our article on hosting incident-free work Christmas parties, we take a look at the potential risks of the office Secret Santa, and what preventative action organisations can take.
What is Secret Santa?
Secret Santa is started by putting staff members’ names into a hat. Each staff member must draw a colleague’s name and that is the person for whom they must buy a present. They must not tell anyone who they have drawn. 

While intended to be a good-natured way to spread some Christmas cheer, the problem is that jokes can often fall flat, and because the gifts are anonymous, the Secret Santa can be used to give a message to the recipient that the gift-giver would not ordinarily share face-to-face. 

 What is intended to be good-natured fun can easily lead to distress. There can also be legal consequences.
Secret Santa gone wrong
In 2012, public servant Ngoc Luan Ho Trieu, who worked as an economic modeller for the Commonwealth Government, was distressed by a Secret Santa gift. It was a plastic reindeer that produced chocolate droppings from its rear end. It was labelled “Luan’s Modelling Kit.” 

Mr Ngoc believed that the implication was that his work resembled animal poo. The identity of the gift-giver was never determined, and some weeks later he quit his job, unable to shake the feelings of distress. 

In response to the incident, the Australian Public Service (APS) issued a warning to staff in its November 2015 newsletter: 
“In keeping with the spirit of happiness and goodwill, APS employees are reminded to exercise care and good judgement as some elements of the APS Code of Conduct apply to activities ‘in connection with’ APS employment.” 

Employees were warned against engaging in pranks and were asked to be mindful that not all employees shared the same sense of humour.
The legal implications
The big question for organisations is how to manage Secret Santa. While the APS did the right thing in issuing the warning to employees, perhaps more should have been done. 

The Canberra Times also reported that after publishing Mr Ngoc’s story, it received many other reports of employees being left upset by Secret Santa gifts. 

There is great potential for legal implications to flow from a Secret Santa present. It may be seen as a form of bullying, for example the employee who was given a dog-chew toy. Employees may also feel discriminated against, for example the worker, being the only Asian in her section, who received a gift implying that her English was poor. 

Gifts that have sexual connotations may also be viewed as sexually harassing and other gifts may offend workplace health and safety laws.
How to manage Secret Santa
When it comes to Secret Santa, written reminders need to be given to all staff about appropriate conduct. For example, organisations should remind staff that: 

  • As Secret Santa is work-related, all work policies apply, including anti-bullying, discrimination and harassment, and discipline and termination of employment.
  • Their gifts must reflect the organisation’s requirement that all employees are treated in a respectful and courteous manner. 
  • Not everyone shares the same sense of humour so gifts should be carefully chosen.
  • Anyone who feels upset or distressed by a gift should inform management immediately so that the matter can be appropriately handled. 
A “master” sheet may also be useful, on which the name of the gift giver is recorded next to each recipient. This can be kept confidential unless a problem arises and needs to be sorted out.  Employees should be advised that a master sheet will be kept as it will help to regulate gift-giving behaviour. 

And finally, if your organisation has had problems with Secret Santa in the past, consider whether it is appropriate to run it again. Secret Santa is a nice idea but increasingly fraught with difficulties. Although workplace laws have not developed to specifically deal with the scheme, many other laws come into play which should be taken seriously by organisations.

Tis the Season: Office Christmas Party Tips and Traps

- Monday, November 30, 2015
Office Christmas Party Tips and Traps

The office Christmas party. It’s an institution here in Australia, and most employees expect some kind of celebration. It’s only fair, too, given the hard work they’ve put in over the year. But increasingly, office parties have become legal minefields. 

The good news is that there are measures organisations can take to safeguard their staff, as well as themselves, against things turning bad.   

Are office parties work-related?
One of the big questions is whether the party is work-related. If the function is held by the employer and staff are requested or required to attend, then it’s work-related. This is the case even if the function is held away from the worksite, for example at a restaurant or function centre. Because of this, organisations should outline expectations to staff in advance of the party and in writing. 

It is important to remind staff that:   

  • As they will be attending a work function, they are expected to conduct themselves in a respectful and responsible manner. 
  • They should not drink to excess and should be discouraged from drinking prior to arriving at the venue. 
  • The organisation’s policies will apply to the event.   

Staff should also be cautioned about using social media on the night, especially if they have been drinking, because social media can be used as documentary evidence of a person’s conduct.  

Alcohol-fuelled festivities
It seems inevitable that staff will drink alcohol at office functions, but there are ways to stop things from getting out of control. The issue is illustrated in the case of Keenan v Leighton Boral Amey Joint Venture, where an employee was dismissed following his behaviour at an office party. The Fair Work Commission (FWC) set out guidelines for responsible service of alcohol at Christmas parties in its ruling on the case:   
  • Serve drinks for a closed period, for example two hours. 
  • Do not allow self-service of drinks. 
  • Ensure the venue will refuse service to those who are drunk and will remove anyone who is drunk and causing trouble. 
  • Ensure that the running of the evening is overseen by at least two senior staff members.   

Organisations should not have an open bar tab as this encourages excessive drinking.  

Think about transport

Organisations should also consider how employees get to and from the function. In Keenan, the applicant continued to drink and celebrate in the same venue after the party had finished. This was when some of his most offensive behaviour occurred.   Encourage staff to leave the venue as soon as the function is over. Consider providing employees with taxi vouchers. Organising taxis to be waiting at the venue at the end of the function can also work well. In some cases, you may need to consider transport to the venue, for example, if the workplace is in a city but the venue is in a regional area. Organising a bus to and from the venue may be a solution.  

Work health and safety

Work health and safety (WHS) requirements will apply to all staff while at the function, and potentially in the course of their travel to and from the venue. Organisations should manage any WHS risks, including any food concerns, especially allergies.   

Bullying, harassment and discrimination

Because the Christmas party is a work function, work rules apply. Any comments or actions that may be considered harassment or bullying are unacceptable. The Keenan case was a good example of this. Organisations should also avoid activities that may result in discrimination or some staff feeling excluded. For example, a person whose culture and religion prohibits the consumption of alcohol may not feel comfortable attending an office function in a pub.  

Get creative

A function that will keep people engaged may limit their opportunities to consume alcohol. For example, running an activity instead of a sit-down meal. Paintball, circus performers or a magic show are a few ideas.   

It’s true that office Christmas parties have a poor reputation, and sometimes deservedly so for the unsavoury antics of a renegade few. But this doesn’t have to be the case. Careful planning is a great way to ensure that everyone finds their way to a very happy Christmas.   

First Cab off the Rank? Interviewing Respondents

Jill McMahon - Monday, November 23, 2015
Interviewing Respondents in Workplace Investigations

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

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

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

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

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

Advantages of interviewing the respondent first

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

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

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

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

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

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

Disadvantages of interviewing the respondent first

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

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

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

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

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

The need for a strategy

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

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Getting the Knives Out - Does the Punishment Fit the Crime?

- Monday, November 16, 2015
Employees and Charges

When an employee is charged with a criminal offence, there can be a number of complications for the employer. For example, whether the employee is a fit and proper person to work in the organisation, whether they present a risk to the safety of other employees, and whether there might be negative publicity if they continue in their employment. A recent decision of the Fair Work Commission (FWC) has laid down some basic considerations for businesses dealing with such issues. 

A case in point

In James Deeth v Milly Hill Pty Ltd, the FWC considered whether Deeth had been unfairly dismissed and whether Milly Hill had failed to properly apply the requirements of the Small Business Fair Dismissal Code

Milly Hill is a meat supplier, employing fewer than 15 people. Deeth was a final-year apprentice employed by Milly Hill. Deeth was charged as an accessory after the fact to murder. 

The person charged with the murder was under the age of 18, and so could not be named in media reports. Deeth, on the other hand, was named as an alleged offender and this caused Milly Hill concern that there would be significant publicity issues. Deeth was summarily dismissed from his employment for two reasons. 

If Deeth continued to be employed:

  • Milly Hill was concerned that other employees would resign out of fears for their own safety.
  • Customers would boycott Milly Hill’s retail business.
Application of the code

Milly Hill satisfied the definition of a small business employer, which meant that the code’s provisions would apply. The code provides that a dismissal of an employee by a small business employer is fair if the requirements of the code have been followed.

The FWC applied the code’s two-step test for appropriate summary dismissal:

  1. Whether Milly Hill believed that Deeth’s conduct was sufficiently serious to justify immediate dismissal.
  2. Whether that belief was reasonable.
The FWC findings

The FWC found that Milly Hill had a “knee-jerk” reaction to the charges, “fuelled by reports of customer and employee dissatisfaction.” The FWC accepted that Milly Hill believed that Deeth’s conduct was sufficiently serious, but its belief was not reasonable, because it had failed to properly investigate the matter. It was not necessary for Milly Hill to determine whether the crime had been committed, but rather how Deeth’s conduct impacted on the business. 

The FWC also said that an out-of-work-hours criminal charge was not alone a valid reason to dismiss – there must be a connection between the criminal activity and the employment. Because Deeth had threatened aggression leading up to the charge and because he worked with sharp knives, the FWC accepted that Milly Hill had cause for concern. The FWC found that there was a valid reason to terminate Deeth’s employment, but that the termination was harsh because the lack of investigation denied Deeth procedural fairness. 

Further, Milly Hill had not properly considered whether it might be able to keep Deeth on and “still have mitigated the perceived risks in relation to its employees and customers.”

The FWC awarded Deeth six weeks of wages as compensation. 

The lessons to be learnt

The presumption of innocence applies, even in civil situations. Employers are duty bound to provide safe workplaces and are entitled to mitigate damage to their businesses. But no matter how large or small, they also have a duty to properly investigate matters, especially when dismissal may result. Had Milly Hill reached the same conclusion after a proper investigation, it is likely that the FWC would have found in favour of the employer. This is reinforced by the case of Turton v Treblec Pty Ltd, in which a company with just four employees was found to have insufficiently investigated a matter prior to dismissing an employee. If you are considering terminating an employee or need assistance with a workplace investigation, WISE Workplace can offer expert assistance

NEED A SPECIALIST?  ENGAGE AN EXPERT
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Sticks and Stones: The Physical Impact of Bullying

- Monday, November 09, 2015
The Physical Impact of Bullying

With the federal government increasingly exercising its legislative muscle when it comes to workplace bullying, employers are expected to be vigilant in prevention and to properly deal with bullying when issues arise. One of the key areas is work health and safety (WHS) and the physical impact of workplace bullying.

WHS requirements

WHS legislation requires that employees are safe from physical or psychological harm at work (including workplace bullying). There are criminal sanctions for any breaches. Everyone in a workplace has an obligation to ensure their own safety and that of others, and employers must provide and maintain a safe workplace. This means that everyone in a workplace must try to ensure that workplace bullying does not occur.

Physical impact of bullying

The psychological impact of bullying is well documented, including anxiety, depression, mood swings, panic attacks, impaired concentration and loss of self-esteem. The federal government’s publication Bullying in the workplace: A guide to prevention for managers and supervisors also gives a list of physical symptoms, including digestive problems, skin conditions and musculoskeletal disorders (for example fibromyalgia). According to the US Workplace Bullying Institute, other issues can include:

  • High blood pressure.
  • Heart palpitations or heart attack.
  • Severe headaches.
  • Post-traumatic stress.
  • Nausea.
  • Lack of coordination.
  • Uncontrollable crying.
  • Eating disorders.
  • Reduced immunity.
  • Fatigue.

The guide notes that physical factors impact an organisation in many ways, including lost productivity due to illness, higher staff turnover, poor public profile, increased time and expense spent managing the problem, and potential workers’ compensation claims and litigation.

Further, even though bullying is often subtle, covert and difficult to detect, organisations must have in place proper systems and procedures for educating employees about bullying, identifying and preventing problems, and adequately responding to complaints. Bullying must be identified, assessed and controlled in the same way that any other WHS hazards are managed. 

the consequences can be tragic

It may seem that an employee taking time off to get over a cold or because of a headache isn’t really a big deal. After all, that’s why they have sick leave. But the risk is that if left unchecked, any harm that an employee is suffering as a result of bullying can escalate with disastrous consequences. 

Take the case of Victorian teenager Brodie Panlock. She was subjected to appalling treatment at the café where she worked, including being verbally humiliated by her manager and co-workers, covered in chocolate sauce and on a number of occasions was held down and had oil poured over her head. Brodie resorted to self-harm by cutting herself and later taking rat poison and alcohol. Horrifically, shortly afterwards she committed suicide. The café owner, manager and two of the co-workers were charged and fined under WHS legislation. Later, the Victorian Government enacted Brodie’s Law, criminalising serious workplace bullying and imposing a maximum prison term of 10 years.

Then there’s the case of 16-year-old apprentice Alec Meikle who was subjected to extreme verbal and physical abuse by his supervisor and co-workers. Within three days of commencing work, he was called abusive and derogatory names, which continued on a daily basis. He was burnt with a welding torch, sprayed with glue and set on fire. His co-workers had also threatened to anally rape him with a steel rod if he made too many mistakes. The bullying was so severe that Meikle left the company after three months. But the effects stayed with him. He was diagnosed with anxiety, depression and an adjustment disorder. Following a hospital admission, he tried to kill himself. Then a few months later, he committed suicide. It was clear that he could not overcome the effects of the abuse, even after leaving the workplace and with medical treatment and close monitoring. 

Although the subsequent coronial inquest ultimately made no findings, the matter serves as a warning that the effects of bullying can continue long after the conduct has stopped. It is another reason for employers to be vigilant in prevention, monitoring and actively dealing with bullying issues.

The physical impact of workplace bullying is a serious issue. If you are concerned about possible bullying incidents in your workplace, or wish to develop strategies for prevention, WISE Workplace can help.  

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



Stop Bullying Orders: How is the System Working?

- Monday, November 02, 2015
Stop Bullying Orders

In January 2014, the anti-bullying provisions of the Fair Work Act came into effect. They included provisions for Stop Bullying Orders (SBOs). In this article, we take a look at how the SBO system is working so far.

Why were the orders introduced?
Early intervention in workplace bullying is essential to prevent further harm to the victim. In other words, stop it before it becomes embedded in workplace culture. With this in mind, SBOs have been designed to give workers fast and cost-effective access to the Fair Work Commission (FWC). 
How does the system work?

If a worker and employer cannot resolve the situation themselves, the worker can apply for an SBO by lodging a Form 72 in the FWC.  Within 14 days, the FWC must send a copy of the application to the employer, who has a further seven days to respond. The FWC then decides how to deal with the matter – it may be mediation (an informal, confidential and voluntary process), or by conference or hearing, in which the FWC will consider how the legislation applies to the situation. 

The FWC can issue a broad range of orders including:

  • Stop bullying. 
  • Behaviour monitoring. 
  • Compliance with policies. 
  • Worker training and support. 

Failure to comply with the orders can lead to fines of up to $6,000. Workers may also choose to take other civil action against the employer, or make a complaint under workplace health and safety laws.

Legislative requirements

In determining whether to grant an SBO, the FWC must be satisfied that:

  • The worker has been bullied at work.
  • There is a risk that the bullying will continue. 

The bullying must be repetitive – a single incident is not sufficient. There must also be a real risk to the worker’s occupational health and safety if the situation is not resolved. The employer can rebut the application by demonstrating that it has acted in a reasonable manner in all the circumstances. 

How the law has developed
With the rise of social networking has also come cyber bullying, complicating the meaning of “at work.” The FWC recently found that if an employee had accessed social media at work, then any social media posts that may constitute bullying had also occurred “at work”. In other matters, the FWC has also held that:
  • If an employee has left the workplace, there can be no SBO as there is no risk of the bullying continuing. 
  • Any behaviour predating January 2014 (when the laws came into effect) can be relevant.
  • It is “reasonable management action” for an employer to investigate a complaint, so long as it is done in a reasonable manner.

The FWC will create orders tailored to the specific circumstances, including orders against the employer, another employee or even a site visitor. It may make individual or group orders (or both). For example, in its first formal SBO ruling, the FWC ordered that:

  • The parties not approach one another.
  • The employer implement anti-bullying policies, procedures and training. 
  • The employer clarify its arrangements for reporting bullying. 
Lessons for employers

The FWC’s considerations of SBO applications reveal a number of lessons for employers:

  • Employers are still able to manage poor performance issues, take disciplinary action and give constructive feedback so long as they can demonstrate reasonable action. 
  • Organisations should have policies and procedures for effectively dealing with bullying, which should be regularly reviewed and updated.
  • All staff should be trained in bullying behaviours and consequences (including policies and procedures) at induction and regularly as part of workplace health and safety training. 
  • Employers should strive to stamp out a bullying culture, not only for the wellbeing of employees but also to minimise lost productivity, legal fees and negative publicity.
  • As it is possible that SBOs may be later used in workers’ compensation claims or civil damages claims, it is in the employer’s best interests to minimise any damage caused by bullying. 

In all, the system seems to be working as intended, although it is hard to imagine that aggrieved employees can easily slot back into their workplaces after being through the SBO process. What is certain is that workplace bullying is a very serious issue, and the message for employers about the need to prevent and deal with it is clear. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
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Blowing the Whistle in the Public Sector

- Monday, October 26, 2015
Whistleblowing in the Public Sector

In 2003, Andrew Wilkie, who was then a senior government analyst, rocketed into the national consciousness by blowing the whistle on support for military action against Iraq. Wilkie is now a member of federal parliament and has championed protection for whistleblowers, particularly in the public sector. 

What the law says

This was enacted by Parliament in 2013 with the aim of closing off any potential loopholes with similar state and territory legislation. The Act applies to Commonwealth employees and public officials who believe that there has been wrongdoing in the Commonwealth public sector. However, it does not apply to public interest disclosures (PIDs) about members of parliament and their staff and does not apply at all to intelligence agencies and materials. Wilkie believes this is a great flaw in the legislation.

The Act aims to: 

  • Ensure the integrity and accountability of the public sector. 
  • Encourage PIDs. 
  • Ensure that officials making PIDs have adequate support and protection. 
  • Ensure the proper investigation of PIDs.

The Act protects the discloser from disciplinary action and criminal, civil and administrative action. For example, the discloser cannot be sued for defamation in respect of the PID. 

How it works

Current and former Commonwealth employees and officials can make PIDs under the Act. PIDs may concern a range of conduct, including:

  • Breaking the law. 
  • Corruption.
  • Wasting public funds.
  • Endangering health and safety or the environment.
  • An abuse of a public official's position.

A PID must first be made to an authorised person within the relevant Commonwealth agency or department. (This is known as an internal disclosure.) The authorised person must then assess the PID and allocate someone to investigate the matter, if warranted. If there will be no investigation, the discloser must be advised of the reasons. Any investigation must be finalised within 90 days and a report be given to the discloser. The discloser’s identity cannot be revealed without their consent.

The Act will continue to protect the discloser even after the investigation is finalised, but if the discloser has knowingly disclosed false or misleading information, the protections will not apply. 

Getting the most out of a PID
The Commonwealth Ombudsman recommends disclosers follow some basic guidelines when making a PID:
  • Give clear and accurate information and provide any supporting documents. 
  • Maintain confidentiality. 
  • Seek advice about rights and responsibilities.
  • Immediately tell the authorised officer about any reprisals. 

Government organisations must have:

  • Appropriate policies and procedures.
  • Adequate training of staff in PID matters.
  • A transparent process of investigation.
  • Appropriate disciplinary action being taken against a wrongdoer.
  • Communication of the outcome of the investigation to the discloser.

These elements also constitute best practice for private organisations in support of whistleblowers.

Going to the police or media

In limited circumstances, the Act will protect a discloser when they have reported the PID to the police or media. They must have first made an internal disclosure, the 90-day time limit must have been unreasonably exceeded and the discloser must have reasonable grounds to believe the investigation or outcome was inadequate. There are also other factors to consider and so an “external” disclosure should only be made after careful consideration.

Nurse Toni Hoffman made an external disclosure to a Queensland Member of Parliament about the activities of surgeon Jayant Patel. Her complaints to hospital administration had not had any effect and she feared more people would die if Patel wasn’t stopped. Her whistleblowing led to the “Doctor Death” saga being headline news nationwide for many years. Patel was imprisoned and is now barred from practising medicine in Australia. 

Blowing the whistle on corrupt activity is a difficult decision as there may be reprisals even though legislation protects the discloser. It is a reminder to all organisations, whether public or private, to ensure that there are adequate measures in place to encourage PIDs, to protect disclosers and to properly investigate the allegations. Ultimately, it is in the organisation’s best interests to minimise corruption, poor productivity and other negative behaviours that affect the bottom line and the manner in which the organisation can effectively function. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
INVESTIGATIVE INTERVIEWING 
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Procurement Fraud: Hitting Organisations Where it Hurts

- Monday, October 19, 2015
Procurement fraud

Procurement is big business in Australia – there are sections of government devoted solely to procurement and large organisations have policies and procedures in place to regulate procurement practices. It’s a huge area of growth but in recent years it’s also been increasingly exposed to abuse by unscrupulous employees and operators looking to gain significant financial advantage by skewing procurement processes in their favour. Government departments and large organisations need to be aware of the risks of procurement, and how to improve internal processes to avoid procurement fraud.

Procurement fraud on the rise

In its 2015 survey Fighting Fraud in the Public Sector, accounting firm PwC found that procurement fraud is now one of the top five economic crimes with around 33% of Australian survey respondents having experienced procurement fraud in the past two years. In the same period, the survey also found that procurement fraud had doubled in the public sector. In government organisations, procurement is a major area of expenditure, which also explains why there has been such an increase in procurement fraud. Fraud is most commonly committed at the payments stage of the process, as well as at the vendor vetting and selection stage. 

The survey identified some common ways in which procurement fraud can occur:

  • Awarding contracts without a tender process or without following established policy.
  • Contract terms that are too favourable to the contractor.
  • Collusion between the employee and contractor for financial benefit. 
  • Creating a fake supplier to invoice the organisation even though no services have been rendered.
A case in point

Ipswich City Council has recently come under scrutiny for its procurement activities. The council, one of the largest local governments in Queensland, was subjected to an assessment by the auditor-general. There were 11 major issues occurring over the past six years, including: 

  • Significant increases in contract costs.
  • Invoices being paid without documentary evidence that work had been finished.
  • Overpayment of GST.
  • Failure to comply with the council’s own procurement policy.  

The council claims that it has improved its procurements processes since the findings were released. 

Preventing procurement fraud

To prevent or minimise procurement fraud, there are a number of general precautions to take. Organisations should:

  • Be alert to the early warning signs of fraud.
  • Investigate any breaches of policy in a holistic manner.
  • Ensure that minor policy breaches don’t develop into major corruption.

The PwC survey also gives very detailed suggestions about preventing procurement fraud at each major stage of the procurement process. Examples include:

  • Procurement decision-making is centralised so that the decisions are not left up to unsupervised individuals.
  • Selection criteria are confirmed and properly communicated before the tender process starts.
  • The staff who order any goods are not the same staff who receive the goods.
  • Staff are regularly trained to look for procurement fraud risks and warning signs.
  • Invoices to be paid are matched to purchase orders.
  • Proof of delivery is confirmed before payment of invoices. 

The survey goes on to note that procurement fraud can be prevented or detected early if those working in procurement have a complete understanding of the “procurement framework and lifecycle.” 

As evidence that this approach can work, the 2015 Procurement Australia Awards award for procurement excellence went to the council procurement officer for the City of Holdfast Bay in South Australia. Her achievement was an overhaul of the council’s procurement system, including a new purchasing culture. Results included increased compliance, improved service delivery and most importantly savings of up to 35% in procurement costs.

Procurement fraud has increased over the last few years, but it is clear that increased diligence, centralisation and knowledge of the procurement process can have enormous savings for government departments and large private sector organisations. 

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5 Steps to Managing Difficult People in Mediations

- Monday, October 12, 2015
How to Run a Successful Mediation with Difficult People

Workplace mediations can be valuable tools for expelling conflict from the workplace without resorting to litigation. There are many possibilities for their use, including resolving conflicts between employees, managing an employee’s work performance, and introducing operational changes. But mediations can swiftly sail into hot water when one of the parties becomes difficult to deal with. It is then that the mediator’s skills come to the fore in keeping the mediation on track, and the parties striving to achieve a resolution.

What is mediation?

Mediation is a process of discussion and negotiation. It requires an open channel of communication between the parties. The mediator is an impartial third party who guides the parties to resolution. The parties can meet face-to-face and may also break off into separate groups so that the mediator can speak to each group privately to find out more about their negotiating positions. 

Successful mediation generally requires all parties to make concessions when it comes to their behaviour, which is often made easier by parties gaining an understanding of the perspectives and feelings of all those involved in the dispute. But what do you do when a party becomes difficult? 

Warning signs

Professor John Wade of Bond University’s Faculty of Law describes a difficult person as someone who behaves in a manner detrimental to their own interests or the interests of the wider community. They may stonewall negotiations, or delay or refuse offers. They may make ridiculous offers.

Difficulties may also arise because of:

  • Habit.
  • Perceived cultural differences.
  • High emotions.
  • Strategy. For example, yelling, public humiliation, refusing to negotiate.
  • Illness (physical or mental).
  • The person being intent on protecting earlier decisions, regardless of how inappropriate they may have been.

All of these things can derail a mediation. A mediation can be terminated by the mediator at any time for lack of cooperation. It’s not ideal, but there’s no point in continuing the mediation if no progress can be made. 

Strategies for dealing with difficult people

Skilled mediators use various strategies to deal with difficult parties, many of which can also be adopted by the parties themselves. These strategies can include:

  • Brainstorming prior to the mediation to work out how you might respond to any allegations made by a difficult person.
  • Active listening – listen to and repeat back what each person has said so that they feel affirmed and validated. 
  • Open ended questions, for example, “help me to understand what you meant when you said …”
  • Slow down the conversation, allowing gaps so the parties can collect their thoughts.
  • Set a time limit for the discussion. It may be that more than one session will be needed so that the parties have more time to consider the issues. 

Reading body language can help with understanding what is affecting or upsetting a person. Objectivity is also essential – adding more emotion to an emotionally charged situation will not help anyone. 

Professor Wade says that the most effective way of combating difficult behaviour in mediation is to encourage the person to bring along a “wise friend” – in other words, a trusted voice of reason for that person to confide in and listen to.  

Mediation worth persevering with

It’s not ideal to have to deal with a difficult person in mediation, but in the majority of cases mediation even under such circumstances is preferable to resorting to more formal measures to resolve an issue, for example an application to the Fair Work Commission. A skilled and impartial mediator can very effectively steer a mediation to resolution and deal with difficulties along the way. It’s a worthwhile investment in longer-term workplace harmony and productivity. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.

INVESTIGATIVE INTERVIEWING 
Location: Melbourne
Date: 5-6 November

CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 1-3 December