Audio Recording or Written Statements?

Vince Scopelliti - Thursday, November 07, 2019

Appropriately recording evidence is a crucial part of workplace investigations.

For investigators, this can cause a significant dilemma as to whether it is preferable to rely on written statements, or obtain audio recordings of interviews conducted during the investigation.

Here are a few of the main considerations for each method.

Audio recordings 

An audio recording is effectively a verbatim record of everything that is said during the interview process. It may be particularly useful to conduct audio recordings during initial witness or party interviews, so that these can be transcribed and used to confirm the evidence which has been gathered.

It is essential that all parties are made aware that interviews will be recorded. This should also assist in setting expectations that nothing said during the interview can be considered "off the record".

Significant advantages of audio recordings include:

  • Simplicity. It is easier for the investigator to conduct an interview without having to take contemporaneous notes. The practice of taking notes can be disruptive to the interview process, breaking both the interviewer's and the interviewee's concentration and the "flow" of the conversation.
  • Creation of an accurate record. Written statements may be considered to be ambiguous or open to interpretation - however an audio recording is fairly difficult to refute.
  • Reinforcing significance of the process. If an audio recording is produced, involved parties can be left in no doubt that an investigation is being taken seriously.
  • Flexibility. If it is difficult to arrange for a party to be interviewed in person, modern technology means that interviews can be recorded by telephone or video. This introduces greater flexibility into the recording process.
It is important to remember however, that it can be easier to contest what is recorded in a transcript, rather than in a written statement which the interviewee has been asked to sign.

written statements

By contrast, a written statement is a document which is produced as a summary of the contents of the interview. Generally, it is produced after the interview, based on notes taken by the interviewer or an offsider. 

Although it is extremely unlikely that every word said or every implied nuance during the interview will be recorded in a written statement, a key advantage of this type of evidence gathering is that witnesses will have the opportunity to review their written statement. The interviewed party can then sign the statement, or refute the contents.

In order to be effective, the statement should be produced as soon as possible after the interview has concluded, while it is still fresh in everybody's memory.

procedural requirements for interviews 

When determining whether an interview should be supported by a written statement or an audio recording, it is important to bear in mind that certain organisations or agencies have policy and/or procedural requirements preferring one method of evidence collection over the other. Further, in the event that a witness prefers not to have the interview recorded, an investigator cannot rely on this method.

The interviewer should give thought both to the personality of the interviewee, and the subject matter of the interview, when determining the best method. If it is intended that the interview proceed on a casual or somewhat informal basis, relying on a recording is likely to be considered overkill.

Audio recording is also reliant on technology functioning properly. In the event that a recording device malfunctions or does not record properly, there is a risk that the interview will not have been recorded at all. This could mean that the entire process needs to occur again - or alternatively, that there is no evidence supporting the interviewing process.

THe importance of flexibility in investigations

Unless company policy dictates one method of evidence collection over the other, this is always a decision that should be made based on individual circumstances.

As is generally the case in workplace investigations, there is never a "one size fits all" approach that can be utilised on every occasion. Investigators must be prepared to make an assessment on which method of evidence collection is appropriate on a case-by-case basis.

WISE investigators have extensive experience in conducting investigative interviews and collecting evidence, whether by audio recording or written statement. If you require established procedures to be followed or would like flexibility during the investigation process, WISE offers investigation services to assist. Additionally, if your organisation is seeking advice and training on interview techniques, WISE offers short courses and resources to upskill your staff.

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

Outsourcing or In-House Investigations?

Vince Scopelliti - Thursday, October 03, 2019

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations involve potential criminal conduct or there is an actual or perceived conflict, outsourcing may be the best option.

We examine the different circumstances in which investigations might best be outsourced or kept in-house.

outsourcing vs internal 

The key benefit of conducting workplace investigations internally is the ability to potentially deal with a matter swiftly and cost-effectively. The obvious reason here is that staff tasked with conducting an internal investigation, already have an understanding of the internal processes and procedures of the business. Although time away from normal duties is likely to be required, there is no additional cost associated with tasking existing staff to conduct an internal investigation.

On the other hand, depending on the nature of the allegation, existing staff may be lacking in capacity or capability to properly conduct the investigation. This is particularly likely to be the case if the allegations relate to potential criminal conduct which requires police involvement.

In addition, if the allegations are sensitive or have been made against a staff member who would ordinarily be involved in conducting the investigation, it may not be appropriate for the investigation to occur internally.

Whether the investigation is outsourced or conducted internally, it is essential that there are clear delineations as to who will be conducting the investigation. Further, the ultimate investigator must be provided with the applicable investigation policy and procedures which must be followed.

risks of handling an investigation in-house

As noted, there are numerous potential risks of handling an investigation in-house. Chief amongst these is the fact that the internal staff may lack the necessary skills or training to adequately understand the complex nature of the investigation. This could have significant ramifications if there are demonstrable gaps in the process, as this may ultimately invalidate the findings and any final decision which is made.

Having staff without the requisite experience or skills, conducting an investigation may also mean a failure to comply with legal obligations. In the event that the investigatory process results in termination of employment, litigation or other legal action, any failure to duly comply with all the legal and regulatory requirements, may potentially result in an adverse decision for the company.

The possible apprehension of bias in an internal investigation is significant, particularly if the employees who are conducting the investigation have a close personal or professional relationship with the complainant, the respondent or any of the witnesses. In a small company, or in a situation where a member in a senior leadership position has allegations levelled against them, this potential apprehension of bias is even greater.

This could also result in complaints of pre-determined outcomes, where staff involved in the process may argue that the investigation was not conducted in accordance with the principles of procedural fairness. Any relationship (whether positive or negative) between the investigatory staff and the parties involved in the investigation is likely to come under significant scrutiny. This may open up the investigatory team to suggestions that the investigation was not conducted impartially or fairly.

Factors for considering whether to outsource 

Impartiality and transparency in the investigative process are always crucial considerations. In situations where there are especially sensitive allegations or the staff involved are likely to resort to post-investigatory litigation, any potential concerns regarding failures in process or impartiality can be addressed by outsourcing the entire investigation.

Similarly, if time is of the essence (particularly when staff have been temporarily stood down and it is important that the investigation process is concluded in an expeditious fashion) outsourcing the investigation may be the preferable outcome. 

This is because external investigators are able to devote themselves completely to the investigation process, while existing employees will most likely need to continue on with their day-to-day work.

the benefits of outsourcing

Although there is a cost associated with the outsourcing of an investigation, there are added benefits. Investigators with specialist expertise are able to deal with complex matters, and are best placed to provide reports which are more likely to be relied upon by the Fair Work Commission.

The majority of contemporary workplace investigations come with their own set of challenges and complexities. If you do not have the time or resources to conduct an investigation or you require an experienced investigator, WISE offers both supported and full service investigations to best assist.  

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. 

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.             

The Right Mix: Professionalism, Impartiality and Empathy

Vince Scopelliti - Wednesday, April 17, 2019

When conducting a workplace investigation, it is essential that there is consideration given to maintaining an appropriate balance between professionalism, impartiality and empathy. 

By ensuring that this balance is maintained, employers are best able to protect the interests of staff, and safeguard against allegations of inappropriate conduct during the investigatory stage. 

the need for professionalism

It is essential that professionalism carries through in all aspects of a workplace investigation. A failure to conduct the process appropriately could have far-reaching consequences for an employee - resulting in disciplinary action or even dismissal and for the employer in cases where the process, procedures and findings are legally challenged. 

Professionalism requires investigators to:

  • Ensure confidentiality - Keep any information that is disclosed or otherwise discovered during the investigatory process completely confidential. 
  • Communicate clearly - This means ensuring that all involved parties have a clear understanding of the process, the information that is required and anything else that can be expected as part of the investigation. 
  • Act with competence - When undertaking investigations into an employee's conduct, it is crucial that the investigator is thorough and performs all aspects of the role correctly and appropriately. This includes planning the investigation, conducting interviews and analysing the evidence. 

staying impartial in workplace investigations

Investigations must be impartial for the same reason they need to be professional. The investigator must try as much as possible to collect and analyse objective information and make a decision on that basis, not on personal feelings or subjective factors. 

In order to avoid perceptions of bias, all efforts should be made to ensure that there is no real or perceived conflict of interest between the person conducting the investigation and other people involved in the investigation, such as the complainant or the accused.

Staff who are known in the workplace to be particularly good friends (or particularly adversarial) with each other should not be involved in the same investigation other than as a witness. This may also extend to staff investigating their own direct reports. 

If your business is too small or otherwise structured in a way which makes it complicated for investigations to occur with impartiality, engaging a professional workplace investigator can help ensure an independent and unbiased process.

the value of empathy

Apart from just generally being the right thing to do, there is some real value in being empathetic with staff during the investigation process. 

Showing empathy in the workplace investigation context is likely to result in greater cooperation from witnesses and greater accuracy in statements. For example, most employees do not want to get one of their co-workers into trouble. By empathising with those staff and noting that they do not want anybody to get fired or have adverse consequences as a result of the interview, investigators can build up a greater rapport. 

It can also reassure those involved that investigators understand what they are going through, and that they will be supported through the process. An employee who has to make a complaint against somebody at work, or an employee having to deal with the consequences of a complaint and the potential disciplinary repercussions can suffer significant stress and trauma. This can have far-reaching consequences in the workplace.    

maintaining the balancing act

The three pillars of professionalism, impartiality and empathy are key to conducting a successful workplace investigation, but these can often be difficult to achieve in the average office. For this reason, you may wish to rely on external investigators to ensure that all key elements of a proper workplace investigation are fulfilled. If your organisation needs assistance with investigations, WISE offers both full and supported investigation services, or training for your staff.

When to Use an External Investigator

Vince Scopelliti - Wednesday, April 03, 2019

Using in-house resources to sort out organisational problems certainly makes a lot of sense. HR departments tend to be well equipped to receive and manage internal complaints, facilitating solutions as they go. 

But while sourcing external assistance can seem unnecessary, there are certain serious workplace situations where calling in specialist investigative expertise will be the preferable solution.  

Internal or external: making the decision

When an event in the workplace requires investigation, questions arise that require timely answers. One of these will be - who should carry out the investigative process? Less impactful events such as personal differences, disputes or general rumours might naturally fall to an internal workplace investigator. After all, they will have inside knowledge of the culture and dynamics that possibly led to these ripples and allegations. 

Yet when alleged events are more serious in nature and/or the scope of the problem is potentially vast, engaging the expertise of a specialist external workplace investigator can not only relieve the internal workload. It can also mean the difference between smooth resolution of a workplace situation - or the unfortunate escalation of a matter into the costly adversarial realm. The more serious the allegation, the more important it can be to secure professional advice.    

workplace investigations - pitfalls to avoid

Whether internal or external, workplace investigators work hard to carry out investigations fairly and efficiently. In a well-run investigation, all involved will be treated in a professional and objective manner, with no overt bias towards one party or another. 

Yet unfortunately perceived bias can be just as damaging to the final collated report. One pitfall with using an internal investigator is that a perception might arise that one party was favoured over another, due to position, workplace friendship, or longevity within the organisation - just as examples. 

Similarly, if an internal workplace investigation is rushed or not provided with sufficient resources, outcomes can be similarly tarnished. It can be tempting to keep things in-house in order to save money. Yet in the long run, the overall quality of the investigative report can be tarnished, leading to the high likelihood of expensive actions by the aggrieved party.  

the expert investigator 

A further consideration when deciding whether to engage an internal or external investigator is the level of expertise. Invariably, internal investigators have other tasks and roles that take up their time in organisations. 

This is not the case for external workplace investigators. As trained professionals they have the in-depth specialist experience and up-to-date knowledge that is necessary for a fair and impartial investigation. For example, maintaining confidentiality within and across the workplace is a challenging task. An external investigator has the ability to coordinate the process in such a way as to preserve the integrity and confidentiality of all discussions.

The investigator's capability is particularly important when it comes to both the finality and reliability of the investigative report. Should an appeal of the decision eventuate, commissions, tribunals and courts will expect to see a level of thoroughness and objective detail that demonstrates adherence to the principles of procedural fairness throughout. 

In the 2017 matter of Anthony King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017], the Fair Work Commission certainly made it clear that imperfect investigations will be viewed dimly, stating: 'some investigation reports seen by the Commission in this jurisdiction fail to get to the heart of such a situation and rarely undertake a true balancing of the evidence seen by them'. 

Support and expertise

Yet it need not be a black-and-white choice between an internal or external workplace investigator. It is possible to access a supported investigation service. In this framework, the organisation gains assistance from an expert regarding the more complex aspects of the process, while carrying out other tasks internally. 

WISE Workplace is able to offer both full and supported investigation services. If you are concerned about making an error or a lack of knowledge in conducting your own investigation, or would like to train your staff in conducting workplace investigations, contact WISE today.