Police Involvement in Workplace Investigations

Vince Scopelliti - Wednesday, September 25, 2019

On occasion, police will become involved and/or need to be involved in the allegations from a workplace matter. In this situation, it's important for employers to know what their obligations are, and to be aware of some of the challenges that can arise. 

So, let's take a look at when police are or may need to be called in and what should happen once they are. 

WHAT matters require the police? 

Generally speaking, any allegation of a serious or potentially criminal nature necessitates the involvement of police. This includes allegations of physical assault, sexual assault, stalking, child abuse, significant fraud or theft. 

In the event that a complaint could have criminal implications, it is always a good idea to get the police involved as soon as possible. This helps ensure that any police investigation is not hampered by destroyed evidence, ongoing delays or similar interference. 

the employer's obligations

If police have become involved in a workplace matter, the police investigation takes precedence over the internal one. 

However, while the police investigation does take priority, an employer must still carry out an internal investigation. This is to afford the employee who is the subject of the investigation due process and procedural fairness. 

The internal investigation and a police investigation must both be treated entirely separately, but run in tandem. The internal investigation must be managed without impeding the police investigation. It is essential for the employer to communicate closely with police and provide assistance wherever required.

It is also important for an employer to remember that one of their paramount obligations is to provide a safe working environment for staff. This means that if there have been serious allegations such as physical or sexual abuse, the complainant and respondent must be separated in the workplace. Generally, staff against whom allegations have been made should be suspended on full pay, pending the outcome of the police investigation. 

the challenges involved 

It is likely that the police investigation will require the use of resources that would otherwise be engaged in conducting the internal investigation. For this reason, it can be difficult to actively investigate a workplace matter internally while the police are undertaking their own investigation. 

It can also be difficult for employers to balance the need to assist police with their legal obligations to their employees.

a case in point

This balancing act is demonstrated in the matter of Wong v Taitung Australia Pty Ltd [2016] FWC 7982. In this matter, Mr Wong, an employee who was accused of theft, named several other employees allegedly involved in a criminal enterprise. 

Police suggested that the employer not take disciplinary action in relation to the employees, in order to obtain and preserve the evidence against them. This meant that the employer permitted Mr Wong to continue working with no warnings, despite having sufficient evidence to conduct a summary dismissal.

The police were unable to obtain sufficient evidence to charge him, however he was ultimately terminated. However, the Fair Work Commission found that the summary dismissal of Mr Wong was unjust in the circumstances. 

The added factor of police involvement while undertaking internal workplace investigations presents unique challenges for employers. The balancing of police intervention into serious criminal allegations, with the strict employment principles and procedures, is both challenging and essential to ensure employers' actions are reasonable. WISE provides external investigation services as well as training in conducting investigations necessary to manage the workplace-police dynamic. 

How to Take Action when Employees and Alcohol Mix

Vince Scopelliti - Wednesday, March 27, 2019

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

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

approaching an intoxicated employee

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

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

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

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

factors that may contribute to alcohol abuse

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

Key risk factors include:

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

How alcohol use can impact the workplace

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

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

Steps to address alcohol use in the workplace

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

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

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

Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Issues with Intoxicated or Hungover Staff? What to do

Vince Scopelliti - Wednesday, May 23, 2018

Most adults like to indulge in the use of alcohol from time to time. Some even like to partake a little more frequently - which is generally not problematic, in the privacy of one's own home and social sphere.

But occasionally problems with alcohol or even drug consumption can creep into the workplace, with staff under the influence while at work or under performing because of the after-effects. 

Employers have an OHS duty of care to all employees so they need to ensure that alcohol in the workplace does not give rise to safety risks. Employees also have a duty of care to themselves. Let's take a look at how employers can manage alcohol and drug-related issues in the workplace.

underlying factors and potential consequences

Alcohol and drug-related problems can occur in any workplace, across different industries. They can arise due to any number of factors, including personal issues experienced by the employee, stress, ongoing addiction, or poor workplace culture, to name a few. 

The potential consequences of alcohol or drug consumption - whether recreational or prescription - include the risk of injuries sustained by other staff and customers, absenteeism, lost production or general lack of competence, and a reliance on rehabilitation or workers compensation. 

The cost of these problems to business varies, however 1 in 10 workers say they have experienced the negative effects of a co-worker's misuse of alcohol.   

identifying alcohol or drug-related risks

One of the best ways to avoid difficulties with drugs and alcohol in the workplace is to identify potential risks and develop workplace policies that address these. 

These are some of the factors to consider when determining the level of risk facing your business:

  • Are your workers engaged in a high-stress environment? 
  • Is the operation of heavy machinery, vehicles or other equipment a requirement of your business?
  • Are there legislative or safety requirements to ensure that anybody operating this equipment is free from the influence of substances? 
  • Do staff potentially have access to illegal or significant amounts of pharmaceutical drugs, whether for their own consumption or for resale?

implementing a workplace drug and alcohol policy

At a minimum, your workplace policies should spell out:

  • Whether your company has a zero-tolerance policy for any types of drug or alcohol consumption;
  • Whether staff are required to declare reliance on specific pharmaceutical medications;
  • If random drug or alcohol testing is undertaken in the workplace; 
  • What expectations are placed on drug and alcohol consumption at work-related functions;
  • What the potential consequences of intoxication in the workplace could be

It is important to note that Section 12 of the Fair Work Act defines "serious misconduct" to include an employee being intoxicated at work. It would therefore be reasonable to dismiss an employee under those circumstances. 

It is also worthwhile ensuring that HR and other executive employees have undergone training in identifying staff who are intoxicated in the workplace or have perhaps formed habits of dependence. 

how to approach a worker who is under the influence 

When staff members suspect that a colleague may be under the influence of drugs or alcohol, it is important to be extremely sensitive in approaching that person. The specific approach will, of necessity, be dictated by various factors, including:

  • The relevant industry;
  • The workplace culture and structure;
  • The employee's role and seniority; 
  • The personal circumstances of the employee;
  • Whether the occurrence is 'once off' of suggests a pattern of behaviour; 
  • The legal environment;
  • The duties and responsibilities of the employee.

An employee is likely to be more responsive if they are approached from the perspective of a safety concern rather than an accusation. This is particularly the case where the behaviour or intoxication may arise from physical injuries, acute distress or prescribed medication which the patient is reacting badly to. 

During the process of drafting a workplace policy relating to drug and alcohol consumption, management should consider appointing and training specific staff members whose role it is to approach employees who are suspected to be under the influence of substances. 

These staff members could include managers, counsellors, health and safety representatives or HR representatives. A chain of command should also be instituted so that staff who have been tasked with making initial contact have somebody else to turn to for assistance if their initial approach fails.

If an employer dismisses an employee for drug/alcohol abuse and ends up with a claim for unfair dismissal, then a good employer defence would include that they had a workplace policy and approach that not only included clear consequences but also emphasised that the employer views abuse as a health issue and therefore seeks to help the employee overcome their abuse (this would be in cases where abuse outside of work is affecting performance as opposed to being intoxicated or high at work). 

This can be done by having an Employee Assistance Program (provided by an external provider); having a mental health and wellbeing policy; and an 'RUOK' approach - whereby managers encourage a culture of everyone looking out for each other and literally asking, are you ok? After all, such welfare approaches are exhausted over a reasonable period of time an employer would be safe to move to disciplinary approaches. 

Employers may also need to assess whether the issue is widespread, ie. a workplace culture of abuse. If this is the case, then there maybe engrained cultural issues that need to be investigated and remedied.   

What can employers do?

Workplaces are encouraged to establish a workplace drug and alcohol policy and procedure that can be followed in the event of a drug or alcohol-related incident in the organisation. 

WISE can assist you in drafting these policies, or assessing your current policy, and training staff. Alternatively, we can provide investigative services for any incidents that have occurred in the workplace.