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. 

Legal Issues When Conducting Workplace Interviews

Vince Scopelliti - Wednesday, August 29, 2018

When a workplace investigation has to be conducted, the most valuable information will generally be obtained through interviewing the staff involved in the incident and any witnesses. This information will play a critical role in determining what has happened or who or what was responsible. 

In order to obtain relevant and reliable information from the parties involved, good communication skills, an eye for detail and the ability to think on your feet is required. However, it is equally important to remember your legal obligations when interviewing staff.

legal issues

In conducting an interview process, key legal issues include:

  • The creation of statements 
    When an interview is conducted, a statement recording the comments made during the interview must be prepared and provided to the interviewee for review and, if the contents of the statement are agreed upon, signature. 
  • Audio recordings
    The laws on the creation of audio recordings differ in each Australian state. Generally speaking, if a person is advised that they are being recorded and they do not explicitly object, it is acceptable to continue with an audio recording. It is best practice to seek their explicit approval once recording has commenced. It is important to bear in mind that a transcript of the recording must be made available to the interviewee upon request. 
  • Support person
    Anybody involved in a workplace investigation, but especially the person against whom allegations have been made, must have the opportunity to have a support person of their choice present during each step of the investigative process, particularly during the interview. Witnesses have to be informed of this right in advance, in order to provide them with the opportunity to find a suitable support person.   

Procedural fairness and privacy

Perhaps the most important aspect of any workplace interview is ensuring that the process is conducted in accordance with the rules of procedural fairness. This includes:

  • The complainant and the respondent have the opportunity to provide their entire version of events and to have a support person present. 
  • The respondent is advised of the particulars of the allegations against them, so that they can respond in detail. 
  • The respondent is advised of their rights in relation to the investigative process.
  • Proceedings are not delayed unnecessarily.
  • The respondent has sufficient time to prepare for the interview process. Best practice is to allow at least 48 hours' notice but preferably more, depending on the complexity of the particulars. 
  • All relevant witnesses are interviewed.
  • Exculpatory and inculpatory evidence is taken into account.
  • All evidence is considered in an unbiased and impartial manner. 
  • No finding of guilt or otherwise is made until after all parties have had the opportunity to participate in the interview process and had the opportunity to respond to the allegations against them. 

All parties involved in the investigation are entitled to privacy. Witnesses who have disclosed information in confidence, may be intimidated by the fear of victimisation or backlash. This means that information divulged during the interview process is to be kept strictly confidential, unless it is absolutely necessary for the resolution of the dispute that it be shared beyond the immediate investigative team.

tips for successfully conducting an interview

In addition to taking the above steps, inexperienced interviewers may wish to consider obtaining specific legal advice, depending on the situation and the allegations which have been made. 

The interview process should always be undertaken from the perspective that only information which is collected fairly and decisions which are made in an unbiased manner will support disciplinary or administrative action against any employee. 

If you dismiss an employee or take disciplinary action against them without affording procedural fairness and establishing the relevant facts, it is possible that Fair Work Australia or other relevant tribunals may find the action was harsh, unjust or unreasonable in the circumstances. 

An investigation may be costly and time consuming, however the consequences of not conducting one may be even greater. If you need assistance in conducting investigations and undertaking investigative interviewing, contact WISE Workplace today, or purchase our 'Investigative Interviewing Book'.   

Improving Your Investigative Interviewing Skills

Vince Scopelliti - Wednesday, March 21, 2018

To any outsider, the job of investigative interviewing seems fairly straightforward - questions are asked and then answers are provided. Yet as we know, the job of interviewing parties in the course of a workplace investigation can be anything but simple. 

For example, the investigative interviewer must ensure procedural fairness at every step along the investigative pathway. And this raises other questions, such as can the venue of the interview impact upon fairness? Why is building rapport a key element of investigative interviews? Should I audio record?

With challenges and variables scattered throughout most investigations, it is necessary for interviewers to be skilled in the core techniques required for fair and productive outcomes. A good workplace investigator never stops refining the skills of the trade.

THE interviewing basics

Procedural fairness requires an investigative interviewer to approach the task with transparency, objectivity and care. For example, any notable bias in the way questions are asked could taint the results of the investigation. It is also essential for the interviewer to explain clearly to the witness the 'what, why and how' of the interview process before questioning begins.

Building rapport is an essential skill when conducting an effective investigative interview. Rapport is the connection created to ensure an understanding of a person's thoughts and feelings, so that effective communication can take place. 

An interviewer might offer a choice of seating, pour some water, ask about the weather outside - just as examples. The right words and actions will be gleaned from the individual characteristics of the witness. Such simple and polite techniques at the commencement of the interview can go a long way towards allaying fears and creating a more comfortable space for questioning. 

Similarly, choosing the right venue can have a surprising effect on the overall atmosphere and quality of proceedings. Questions one might ask oneself as an interviewer include: Is it appropriate to speak with this particular witness on-site? Will we have sufficient privacy? Is there a basic level of comfort? An inappropriate venue for the investigative interview can cause unnecessary distractions and discomfort; neither of which assist in producing high-quality evidence. 

to audio record the interview or not? 

One key issue to consider is this - will you record the interview or take a statement, or simply take notes? An audio recording has obvious advantages, such as providing a word-by-word account of the interview. It is, however, vital to research any particular legal requirements within your state or territory about the need to obtain consent from the interviewee to record the conversation. An audio recording of the investigative interview should demonstrate a strong and professional structure to the interview, as well as a fair approach taken to the witness. When and how to record an investigative interview can be a tricky variable to consider, and at times might require expert advice.

the peace-ful investigative interview

In the 1990's, a selection of British law enforcement officers came together in order to find a better approach to investigative interviews. They identified the need for a strong but flexible alternative to current questioning techniques. The PEACE model of interviewing was born, and it has proven invaluable to investigative interviewers. 

Five key concepts make up the acronym:

P - preparation and planning - Do you have a good list of potential questions and a thorough understanding of the scope of the investigation?

E - engage and explain - Have you built rapport, explained all procedural issues to the interviewee and provided an opportunity for questions?

A - account, clarify and challenge - Have you allowed the witness to answer responses fully, without bias or suggestion? Have you sought to clarify concerns and challenged any discrepancies in a professional manner?

C - closure - Did the witness have an opportunity to ask, clarify and add further to the interview where appropriate? And if so, have you explained any next steps and thanked them for their time?

E - evaluation - In listening to or reading back the interview, how would you evaluate the substance, quality and fairness of the process? 

The PEACE model is a great tool for mapping out key aspects of an investigative interview, thus ensuring that nothing is missed in your witness statements. 

suggestibility and free recall

Psychologists consider that every person will have a particular level of suggestibility, which can change across their lifespan. Suggestibility is the extent to which we can be persuaded to 'fill in' our memory through the suggestions of another. Children for example are particularly vulnerable to such prompting in an interview setting. 

Psychological concepts such as free recall demonstrate that memory can be affected by factors such as the timing and positioning of details as they are laid down as memories. Investigative interviewers need to take great care not to ask questions in a way that might sway or alter the facts as provided. 

Conducting investigative interviews is almost always a challenge. For more tips on how to effectively undertake interviews, purchase our book Investigative Interviewing: A Guide for Workplace Investigators, or alternatively, we provide on-site training in investigative interviewing, which can be tailored to the needs of your organisation.