Is Your Complaints Procedure Effective?

Vince Scopelliti - Wednesday, July 05, 2017

Risk management is an important aspect of running a successful business: Whether this takes the form of ensuring compliance with corporate governance programs, reducing instances of workplace fraud or financial misconduct, or eliminating bullying or other forms of harassment. 

Having a strong and coherent whistleblower program in place can help protect your organisation's interests in all of these situations. 

An ineffective complaints system could in fact be preventing your employees from raising any complaints. 

So what are the hallmarks of an effective whistleblower program?

Provide confidentiality and support

An effective complaints system should enable your business to identify hotspots, respond to critical incidents and communicate confidentially with reporters. It should also provide employees with a safe and secure environment to report misconduct, enable insightful management and the ability to bring about real cultural change, and reduce corporate risk. 

Perhaps the most crucial component of a successful complaints system is that complainants are guaranteed confidentiality and employer support throughout the whole process. This is particularly important as those who are considering blowing the whistle on co-workers or supervisors may be concerned about reprisals or the potential impact on their employment. 

This is especially likely to be the case in circumstances where the reported conduct involves sexual harassment, workplace bullying or criminal behaviour, such as fraud or theft. Employees considering making a complaint should be offered the opportunity to make anonymous complaints to reduce the fear of retaliation. 

The following statistic are particularly insightful: 

  • A third  of all reports made through whistleblower programs relate to bullying and harassment
  • 67% of people experiencing bullying or harassment do not report it
  • 42% do not report it for fear of negative consequences
  • 49% of misconduct is reported by employees. 

ESTABLISH CLEAR PROCEDURES AND GUIDELINES

It is crucial that reporting systems in your workplace are clearly identified and communicated to all staff. This includes making it clear to all employees how a complaint should be made (including an anonymous complaint), to whom, and what the follow-up process will be once a complaint has been lodged. 

This information should be readily available and easily accessible. 

DON'T MAKE EMPTY PROMISES

Once a whistleblower program is in place in your business, it is important for those utilising the service to feel that their complaints are being taken seriously and will be dealt with and responded to in an appropriate fashion.  

Privacy concerns and operational strategies may mean that complainants are not privy to all aspects of any ultimate disciplinary or punitive processes imposed on those against whom complaints are sustained. It is nonetheless important to confirm with the complainant that it has been duly and independently investigated, and that it has been resolved to the business' satisfaction.

CRACK DOWN ON REPRISALS

It is equally important for your organisation to have a strong and transparent policy to deal with reprisals or victimisation of whistleblowers. In some circumstances, even if confidentially is offered, only a little bit of logic may be required to deduce who made a complaint against another staff member. This maybe particularly relevant if your business is small or if the circumstances surrounding an allegation involve only a few people with detailed knowledge of the facts. 

If anyone involved seeks to retaliate either physically, verbally or by affecting the whistleblower's employment, it is crucial for your organisation to demonstrate a swift and clear zero-tolerance response.  

IMPLEMENTING A PROGRAM CAN BE CHALLENGING

Ensuring easy communication and the ability for staff to raise complaints where necessary, benefits all employees by improving an organisation's ability to deal with risks and increasing employee satisfaction. 

However, implementing an effective whistleblower program can be difficult, particularly in a smaller business with limited resources. It can also be a complicated task to provide a program that responds quickly and is impartial. 

At WISE Workplace, we offer an independent whistleblower hotline program that is ready to take complaints 24/7, provide assessments on the urgency of complaints, and offer expert advice on the dealing with complaints. Contact us to find out more.   

When the Line Blurs: Restrictive Practices vs Assault

- Wednesday, June 14, 2017

It is well-known that certain industries, particularly those involving disability or aged care services, have a higher than average level of client-facing risk. This is in part because consumers of these services generally have higher levels of physical needs, and may also have difficulties expressing themselves clearly or consistently.  

As a result of these unique care requirements, occasionally situations may arise where restrictive practices are necessary either for the client's own safety or to protect another person. 

However, employers and care workers must ensure that their actions do not exceed reasonable restrictive practices and slip into behaviours or acts, which could be considered assault.   

WHAT ARE RESTRICTIVE PRACTICES?

According to the Australian Law Reform Commission, the definition of 'restrictive practices' are actions which effectively restrict the rights or freedom of movement of a person with a disability.

This could include physical restraint (such as holding somebody down), mechanical restraint (for example, with the use of a device intendend to restrict, prevent or subdue movement), chemical restraint (using sedative drugs), or social restraint (verbal interactions or threats of sanctions). 

Restrictive practices are intended to used in situations where a person is demonstrating concerning, or potentially threatening behaviours. In the disability services context, this may involve people with significant intellectual or psychological impairments, but no or limited physical impairments, meaning that threats of violence could be credible and have significant effects.

Although restrictive practices are currently legal in Australia, according to the National Disability Insurance Scheme (NDIS) factsheet, they do not currently constitute 'best practice' for disability support.

KEY CONCERNS WITH RESTRICTIVE PRACTICES

As with any situation where the personal liberty of people is affected, the use of restrictive practices can blur into the use of inappropriate levels of force and potentially even expose the disability worker to accusations of assault. 

While the greatest concern with restrictive practices would be the possibility of disabled persons being intentionally abused, it is very easy for the line between restrictive practices to be unintentionally blurred. 

Although assault is defined slightly differently in each Australian state and territory under criminal law legislation, broadly, the offence involves circumstances where intentional and unwanted physical force or contact is used against another person. It can also include verbal behaviours, which are considered threatening. 

While the line between the use of restrictive practices and assault may not be immediately clear, conduct is unlikely to be considered to be an assault if it can be demonstrated that the actions taken, even if they involved the use of physical force, were necessary to avoid violence or any risk of harm.

    WHAT IF AN ALLEGATION OF ASSAULT DOES ARISE?

    The provision of disability services is a challenging industry at the best of times. It's important to ensure that your team is using restrictive practices appropriately and in the right circumstances to avoid any allegations of assault. 

    Any employers who are advised of accusations of assault must undertake a full workplace investigation in order to fulfil their dual obligations to their employees and to their clients. 

    At WISE Workplace, we have experience in the disability and aged care sectors, and our team can assist in all aspects of workplace investigations.   

    ACT Launches Reportable Conduct Scheme

    - Wednesday, June 07, 2017

    If there's one thing that's been made clear from the recent Royal Commission, it's that the protection of children and the reporting procedures around child abuse need to be improved. 

    In August 2016, largely in response to the commission, the ACT Government passed legislation designed to cast a 'wider net' when it comes to the scrutiny of child abuse and the protection of children within certain organisations.

    The ACT Reportable Conduct Scheme will take effect from July 1 2017. The scheme is designed to ensure that there are processes in place for allegations of employee abuse of children, and that these allegations are independently reviewed. 

    In essence, it provides a mechanism for employers to report employee misconduct in relation to children, with the ACT Ombudsman acting in the role of independent oversight body.   

    WHICH EMPLOYERS DOES THIS APPLY TO?

    Certain types of employers that work with children will be covered under the scheme, including health service providers, foster care and out-of-home services, residential care providers, schools and educational services. 

    In general, religious organisations (other than schools), instructional services (such as teachers of sports and music), scouts/guides and universities will not be included under the scheme. 

    The term 'employee' in this instance refers not only to workers but also to contractors and volunteers within the relevant organisation, whether or not they work directly with children. This means conduct may be reported even if it is of a personal and non-professional nature.  

    WHAT ABOUT OTHER REPORTING PROCESSES? 

    It's important to be aware that the scheme will not override other reporting obligations - such as that of suspected crime to the police, or mandatory reporting of serious abuse or neglect of children to the Child and Youth Protection Services (CYPS). However, it does cover a wider range of behaviours in relation to children, and also provides a mechanism for employers to report conduct not covered under other mandatory reporting programs. 

    WHAT EMPLOYERS NEED TO DO

    ACT employers covered by the scheme will need to notify the Ombudsman within 30 days of suspected or actual misconduct by an employee in relation to children. These acts of misconduct include neglect, mistreatment, psychological harm, sexual misconduct or inappropriate discipline. 

    Employers will also need to:  

    • Perform investigations into alleged reportable conduct and provide a written report to the Ombudsman. 
    • Report to other bodies as required - including the police, the human rights commission, CYPS and others. 
    • Review and amend their organisational policies and procedures where necessary.
    • Inform and educate employees regarding any new or amended policies and responsibilities. 

    THE OMBUDSMAN'S ROLE

    The scheme is designed to go beyond just reporting misconduct. For instance, the Ombudsman's role in regard to this is also to monitor and analyse trends, share information with other authorities as required, provide guidance to organisations regarding child protection, and monitor the practices of employers in relation to child safety and prevention of abuse.

    WHERE TO FROM HERE?

    WISE Workplace provides independent investigation services for organisations into reportable conduct, and training on how to respond and investigate allegations. 

    A Perplexing Problem: Protecting Children Overseas

    - Thursday, April 20, 2017


    Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

    International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

    Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

    Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

    Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach.

    Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

    Documents provided to the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

    It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children?

    WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients. The work remains some of the most challenging to investigate. Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

    For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

    Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

    1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency

    2. Have clearly articulated Child Protection Standards and Guidelines

    3. Have clearly articulated procedures for dealing with complaints

    4. Understand the criminal law in the country of service delivery

    5. Understand the employee relationship between the funding body and the service providers on the ground

    6. Know your legal obligations under your primary funding agency agreement

    7. Respond quickly to complaints

    8. Conduct a risk assessment and take protective action if necessary

    9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain

    10. Seek specialist help when complaints are serious or complex to investigate.

    WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts. Our unique Investigating Abuse in Care course provides valuable skills in how to assess complaints, reporting obligations, drafting allegations, interviewing victims and respondents, making decisions and maintaining procedural fairness. Book now for courses in May 2017.

    Building Rapport in Investigative Interviews

    - Wednesday, April 12, 2017


    All workplaces are at risk of allegations of bullying, harassment, discrimination or other claims of misconduct or inappropriate dealings. As such, all employers must be prepared to conduct investigative interviews to determine the veracity and accuracy of any allegations made against or by one or more of their employees.

    Apart from properly eliciting the facts, perhaps the most important thing in conducting such interviews is ensuring that there is sufficient rapport between the interviewer and the interviewee. This connection can result in more information being obtained from the interviewee, and also help ensure that more truthful answers are provided.

    So what are our top tips on achieving this?

    1. TAILOR YOUR APPROACH

    There is no "one size fits all" approach when it comes to building rapport in investigative interviews, it's about tailoring the approach to suit the particular circumstances and the interviewee.

    For example, there is probably little point running through a standard set of formal questions when interviewing children. Similarly, an employee who claims to be the victim of workplace bullying is unlikely to want to make idle small talk about how the company's netball team is faring in the local comp.

    2. ASK QUESTIONS IN THE RIGHT WAY

    It is crucial that interviewers are competent and know which questioning techniques to use in which situation in order to put the interviewee at ease and obtain quality information.

    For example, taking the interviewee back in time to when the incident occurred can help with recall, while asking open-ended questions can assist in obtaining more detailed explanations.

    3. MAKE THE INTERVIEWEE COMFORTABLE

    One of the most important aspects of building rapport is to make sure the interviewee is relaxed. Ensure that there is adequate privacy for the interview to take place away from the prying eyes and ears of co-workers, and offer comfortable seating and beverages. It is essential to create a sense of trust in the interviewee, by making them comfortable, conveying an impression of competence and expertise, and by actively listening to them. If this occurs, the interviewee is more likely to feel comfortable divulging information.

    4. MIRROR THE INTERVIEWEE TO BOND WITH THEM

    A tip frequently utilised by law enforcement officials in conducting investigative interviews is to mirror the interviewee. This involves actively listening to what the interviewee is saying and "mirroring" or reflecting their mental state and emotions, such as expressing frustration about the way in which they have been treated, demonstrating understanding and validation of their feelings, and acknowledging that their experiences are significant and potentially very destabilising.

    Mirroring is also closely aligned with the principle of reciprocity, which suggests that interviewees will respond in a way which matches the interviewer's attitude towards and interaction with them. An empathetic or obviously interested interviewer will doubtlessly elicit more information than one with an aggressive or unpleasant style.

    It is particularly important to find factors of commonality and shared experiences if there is a power imbalance between the interviewer and the interviewee (such as a relationship of employer and employee or an external workplace investigator who is effectively a stranger). This can be as simple as discussing recent weather events, the traffic or sporting teams.

    OBTAINING PROFESSIONAL ASSISTANCE

    Conducting investigative interviews generally can be challenging. For more tips on how to undertake interviews in the workplace, participate in one of our upcoming advanced training courses on conducting investigations.

    Alternatively, if you prefer to obtain expert assistance from the get-go, Wise Workplace provides full investigation services. Contact us today to find out how we can help with your workplace investigations.

    Bullying: What's the Role of Leadership?

    - Wednesday, April 05, 2017


    Workplace bullying is somewhat of a scourge in modern society. Broadly categorised by Reach Out Australia as any behaviour which is physically, mentally or socially threatening and takes place in the employment context, it can have an enormous impact on staff effectiveness, employee retention, the number and type of worker's compensation claims and, of course, employee happiness.

    Legally, employers have a responsibility to ensure that all workplaces are safe for their staff, including preventing workplace bullying. So what are the key things business leaders should be doing to tackle this problem?

    1. PREVENTION IS THE BEST CURE

    Perhaps the easiest way to deal with workplace bullying is to try and ensure that it does not happen. As suggested by Safework Australia, workplace bullying can best be prevented by the leadership team identifying potential risk factors within the organisation for bullying.

    In addition to ensuring that new staff, wherever possible, are likely to mesh with other employees and not experience personality clashes, this process should also involve regular consultation with employees as to their levels of job satisfaction and the quality of interaction with co-workers, conducting exit interviews with departing employees, obtaining regular feedback and ensuring that there are detailed incident reports recording complaints and other potential instances of workplace bullying behaviour.

    Being aware of possible triggers for workplace bullying can also be an effective strategy, for example, awareness of the various leadership styles in the organisation. Ensuring adequate communication between management and employees and requesting forthright feedback on work styles and interactions can help to reduce the risk of workplace bullying significantly.

    2. LISTEN TO THE ALLEGED VICTIM - AND THE ALLEGED PERPETRATOR

    It is important for leaders to be empathetic and open when speaking with a claimed victim of workplace bullying. Remember that the person alleging bullying, whether this has actually taken place or not, is already harbouring strong negative feelings about the workplace, or at the very least certain people in the workplace.

    A heavy-handed or suspicious approach by the employer is likely to further upset the employee and worsen the ongoing impact and consequences of the bullying. At the same time, a leader investigating a workplace bullying claim does not need to blindly accept everything put forward by the apparent victim.

    Both the "bully" and the "victim" are the employer's responsibility, and both are therefore entitled to have their full version of events listened to and acted upon appropriately.

    3. TAKE DETAILED CONTEMPORANEOUS NOTES 

    In the worst case scenario, an employee's bullying allegations may become the subject of legal proceedings.

    This means a record of conversations and interactions between senior staff and claimed victims of workplace bullying may become essential evidence. In any event, regardless of the possible outcome, it is always best practice to ensure that all conversations with management are properly recorded, not least to make sure that further claims of workplace bullying are not levelled against management!

    4. ENSURE IMPARTIALITY 

    Depending on the size and type of your workplace, ensuring that investigations are conducted impartially may be difficult. In certain cases, it may be more appropriate to engage external workplace investigators to review workplace bullying complaints.

    However, if employers choose to keep investigations in-house, prejudgement of the ‘facts’ or a bias toward one side or the other must be avoided. Where possible, it can be helpful to task someone who doesn’t work directly with either party with the investigation.

    Negotiating the many tricky aspects of investigating workplace bullying complaints can be very stressful. At Wise Workplace, we provide advanced training courses in conducting workplace investigations, to make you and your leadership team as self-sufficient as possible. Register for an upcoming course date now.

    How to Handle Complaints in the Aged Care Sector

    - Monday, November 14, 2016

    With Australia’s aging population, it comes as no surprise that the demand for various aged care services continues to escalate. It is also somewhat inevitable that complaints will rise, as aged clients and their loved ones navigate their expectations and emotions in a relatively challenging time. 

    We examine the latest work of the aged care complaints commissioner, and how aged care providers can create their own best-practice system for handling complaints.

    The current state of play

    As noted in the 2015-2016 Aged Care Complaints Commissioner Annual Report, some 2,153 official complaints were made in the six months to June 30, 2016. Once a complaint is in train with this external body, the age care service provider must be ready for any and all actions to be taken by the commissioner. For example, Notices of Intention to Provide Directions are formal requests that providers can respond to with their version of events, plus plans for rectification where needed. 

    It is therefore vital that any systems, investigations or responses developed internally hold up to scrutiny in terms of fairness and transparency. Matters can go further from this point, with the commissioner able to make referrals to the Aged Care Quality Agency. Complainants can also take their matter to the Commonwealth Ombudsman – and even to court.

    It is clear that the best defence against external complaints is a pro-active internal mechanism for managing complaints. So – what might this entail?

    A user-friendly aged care complaints system

    The best complaints system is of course one that initially involves open listening by a provider on a daily basis. Are there issues brewing, or are the same informal ‘gripes’ being heard from different sources, for example? In aged care environments, it is important to establish a culture of openness, and to inform residents and their families of the various ways in which they might like to raise concerns. 

    Secondly, an ideal complaints system will adopt the ‘no wrong door’ policy whereby staff are equipped to identify any complaints, no matter how or when they arise. Independence around sensitive issues is essential. Bringing those complaints back through the ‘right’ system channels – and getting the formal documentation right – will be the responsibility of the aged care provider and not the service user.

    In this way, if or when complaints arise they can be dealt with in a swift and congenial manner. 

    The need for a quality independent investigation

    Knowing where and how to start investigating a complaint is a crucial first step. There are issues around privacy and procedural fairness that must be squarely faced, to ensure that all internal processes appear adequate to the parties – as well as to outside sources.

    One aspect to take care with is verbal evidence provided by parties to the complaint. There is much to consider regarding permission to record, clarity around the issues and fairness in collection of details. Whether utilising an internal or professional external investigator, it is essential to understand the nuances of appropriate workplace investigation. 

    Remember that any witnesses – staff, residents, volunteers and visitors – all need to be given a fair and consistent chance to be heard. Case law in the area demonstrates that the mishandling of evidence at this early stage by the service provider can have a direct impact upon the outcome of matters down the track.

    In many cases, complaints within the aged care sector can reflect frustration, disappointment and other emotions related to service and care. At first instance, a listening ear and direct internal action will reduce the need for further escalation on a complaint. Yet sorting the serious from the less-so can be a challenge in these situations. 

    A professional and independent workplace investigator can assist greatly in identifying limits within current complaints procedures, as well as ensuring vital consistency in the investigation of individual matters. 

    Keeping up with process and procedural fairness in the workplace can be challenging. That's why we have developed the Workplace Investigation Toolkit.   Provide best practice principles and keep your business out of the Fair Work Commission.   Get yours here today.

    Information Sharing and Child Abuse - A Continuing Issue

    - Wednesday, March 23, 2016

     

    This month the NSW Ombudsman hosted a forum reflecting on the past 16 years of Reportable Conduct legislation in NSW.

    With over 800 attendees, the gathering represented an exceptional group of people with a wealth of expertise in this sensitive and tricky area.

    Key messages from the group included the need for:

    • Improvements in information sharing between agencies
    • Widening the legislation to include sporting groups and religious orders
    • A national Working With Children check system, rather than state based
    • A national register for the suitability of employment with children
    • Greater protection for the disabled

    The resounding need to make the system work better and provide comprehensive protection for all Australian children was

    a national system of information sharing and

    actual practical information sharing between agencies

    WHAT WAS THE PROBLEM IDENTIFIEd?
    Privacy legislation requires that organisations do not share personnel records. Whilst steps have been taken to enable information sharing between agencies in NSW these only apply where a current risk exists to children, and they remain inadequate and slow.

    Name changes, spelling errors, data entry, human error and overwhelming fear of breaching the privacy act seem to be the main causes of a lack of information sharing particularly by the larger agencies such as the Police and Family and Community Services.

    providing information to policE

    Currently organisations are expected to make reports to police of any suspected child abuse or Reportable Conduct.  The police, however, are not so good at returning the favour when agencies are trying to investigate non-criminal reportable conduct of their own.

    What do the police do with your information?

    •  Police will receive information about a crime but they won’t give it out (Privacy restrictions)
    •  Police won’t necessarily act on the information provided
    • With no formal complaint from the victim, police won’t act
    •  With no likelihood of a conviction police won’t necessarily investigate
    So if your victim is non-verbal, young, disadvantaged, unsupported, suffering from metal illness, has behavioural difficulties or has low self-esteem, their complaint may not be investigated.

    In fact, if your victim has all the characteristics of a child likely to become the target of a paedophile, they are less likely to be successful in a criminal prosecution.  This is no coincidence.

    This is why the legislation on reportable conduct is so important. By extending the definitions of acceptable behaviour of people who work with children and lowering the standard of proof - early patterns of behaviour known to be linked to serious sexual offending such as grooming and breaching professional boundaries  can be identified and individuals can be permanently barred from working with children – in NSW.

    This legislation ensures  the protection of many times more children than the criminal justice system and actually prevents offenders having access to children.

     

    In many ways it is far superior to the criminal justice system

    in providing actual protection and preventing abuse.

     

    Under the criminal justice system, child abuse remains difficult to prosecute and difficult to convict.  It is unnecessarily burdensome on the victims of abuse putting them through protracted and distressing criminal trials and appeal processes.

    The NSW forum presented compelling arguments for the need for improved information sharing between all agencies in addition to not just a state based criminal records check but a national one and a national register of suitability to work with children.

    There are high expectations that the Royal Commission into Institutional response to Child Sexual Abuse will recommend Australia wide legislation similar to that in NSW.  Let’s hope it is a seamless system that stops people slipping through the cracks!

    If you have a workplace complaint and you're not sure how you should respond to it, or you would like to discuss how we can help build capacity within your organisation to respond to complaints  - WISE Workplace provides high quality specialist investigators to conduct workplace related investigations into abuse of children, people with a disability and the elderly. We have been working with Reportable Conduct legislation since it’s inception in 2001. Call us to discuss how our services may be able to help your organisation develop a response and systems that protect your clients.  Give us a call on 1300 580 685.

    For more guidance on your obligations to report and respond to incidents of child abuse, The Institute of Community Directors Australia produced this excellent Child Protection Toolkit in January 2016 to assist not for profit agencies.

     

    Link to toolkit.