Undercurrents of Bias can Drown an Investigation

- Wednesday, February 24, 2016
Undercurrents of Bias can Drown an Investigation
In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer.   

One of the most regular complaints we hear from people who have been the subject of an investigation is that the investigator was biased and the decision was predetermined, and they had no chance of a fair hearing.  

It doesn’t really matter whether bias is real, it is the perception of bias that undermines the investigation process and can keep employers working with ‘problem’ employees through various court processes for years. You heard right - YEARS! 

There may be many sound reasons for using in-house staff to conduct investigations. These include: 
  • Keeping the costs down. 
  • Having someone familiar with the culture and work practices of the organisation. 
  • Knowing the individuals.   
So long as the person you use has the required skills in collecting evidence there shouldn’t be a problem, right?  

Wrong! – the issue over bias can become the dangerous undertow that makes all those cost savings irrelevant when you are embroiled in a protracted court case.  

What happened in Anders

Anders was employed by the school, located near Hobart, as an academic administrator (AA) and maths teacher.  

In 2013, Anders said that she was snowed under with her AA duties. She was also diagnosed with anxiety and depression, and took extended leave. At the end of 2013, the school removed her from the AA role. 

Anders disputed this decision by application to the Fair Work Commission (FWC). An outcome was negotiated, but Anders maintained her protests about the decision. 

Following her return to work, Anders had some further episodes of depression and anxiety, which again caused her to take leave. 

During this period, Anders’ relationship with the school’s management and other staff became problematic. It was alleged that she: 

  • Took issue at not being allocated a particular maths subject to teach, saying that “the gloves [were] off.”
  • Made some social media posts about her employment issues which caused the school to caution her about inappropriate use of the platform.
  • Sent emails to colleagues about her dispute with the school.
  • Expressed mistrust in the school’s headmaster and deputy headmaster and would not communicate with them.
  • Had such a difficult relationship with other teachers in the faculty that they had refused to work with her. 
  • Claimed that she had been discriminated against on the basis of her mental illness. 
  • Showed discourteous and disrespectful behaviour towards her colleagues. 

Deputy Headmaster Alan Jones investigated the matter. He put the allegations to Anders in writing and she was asked to attend a meeting and was invited to have representation present. Following the meeting, Jones interviewed other witnesses.  

Jones decided to terminate Anders’ employment, having found that most of the allegations against her were substantiated. He wrote to her saying that there was a total breakdown in the employment relationship, making her continued employment at the school impossible.  

Anders made a claim for unfair dismissal in the FWC. 

The FWC decision

The FWC found that while Anders’ behaviour may have indicated a lack of wisdom, it did not constitute a breakdown of the employment relationship. 

Because Jones was investigating the matter, the FWC said that he was in effect investigating an allegation against himself as Anders had allegedly declared that she did not trust the headmaster or deputy headmaster of the school. 

The concern was that he could not be impartial. This, combined with Jones’ knowledge of Anders’ mental health issues, “did not provide a reasonable basis for Mr Jones to conclude that each of these allegations [was] proven.” 

The FWC found the termination was harsh as there was no valid reason, and ordered the school to pay compensation. 

not the only case

This issue is certainly not an isolated one. The case of Keiko v Qantas also involved an allegation of bias. The investigator in that case was criticised for accepting the account of a close work colleague rather than the weight of contrary evidence from many other witnesses. As in Anders, using an independent investigator would have circumvented this issue.

Keeping investigations independent and without bias is a central tenet to procedural fairness. While independent investigators are not immune from bias or indeed allegations of bias, it is important for employers to recognise when their in-house team is too close to a situation to effectively investigate without bias. 

If you have a problem that you want to discuss or think an independent investigator is the answer, talk to one of our case managers about how our workplace investigators may be able to help. 

Comments
Anonymous commented on 24-Feb-2016 12:08 PM
"A really well written article using a very relevant and interesting example"
Anonymous commented on 24-Feb-2016 10:40 PM
"A well researched and analysed topic. Such topics should be discussed more as there are people who misuse their power and authority and harass people to great extents. Thanks Harriet for passing this information..."
Anonymous commented on 01-Mar-2016 11:26 PM
"Excellent article about a 'hidden' area in investigations. None of us believe we are biased!

A recent Employment Appeals Tribunal case in the UK throws some light on how far HR can go to advise managers carrying out investigations, Ramphal v Department for Transport. In this case a manager with no previous investigation experience was appointed to investigate possible misconduct in relation to expenses claims and the use of hire cars. His first report was quite favourable towards Ramphal and seemed to accept the explanations given. But after meetings with HR, the final report excluded the favourable viewpoint and found him guilty of gross misconduct. There had been no new evidence collected.
The EAT decided that HR had significantly overstepped the mark. It observed that advice should be limited to the essentials of law, procedure and process and should not give guidance as to how to interpret the evidence to decide on culpability.
What may be well meant as good advice can therefore amount to biasing the investigator and this must be avoided.

"
Anonymous commented on 15-Mar-2016 05:41 PM
"Thanks for sharing the amazing post of corporate investigator. This is well research and useful topic who are work on corporate sector."
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