{"id":3594,"date":"2016-02-24T12:33:00","date_gmt":"2016-02-24T02:33:00","guid":{"rendered":"https:\/\/www.wiseworkplacetraining.com.au\/2021\/09\/11\/undercurrents-of-bias-can-drown-an-investigation\/"},"modified":"2016-02-24T12:33:00","modified_gmt":"2016-02-24T02:33:00","slug":"undercurrents-of-bias-can-drown-an-investigation","status":"publish","type":"post","link":"https:\/\/www.wiseworkplace.com.au\/2016\/02\/undercurrents-of-bias-can-drown-an-investigation\/","title":{"rendered":"Undercurrents of Bias can Drown an Investigation"},"content":{"rendered":"<div>\n<div><img decoding=\"async\" src=\"https:\/\/wiseworkplace.com.au\/wp-content\/uploads\/2021\/09\/Bias240216.jpg\" alt=\"Undercurrents of Bias can Drown an Investigation\" \/><\/div>\n<div><span>In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer. \u00a0\u00a0<\/span><\/div>\n<div><\/div>\n<div>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.<\/div>\n<div><\/div>\n<div>It doesn\u2019t really matter whether bias is real, it is the perception of bias that undermines the investigation process and can keep employers working with \u2018problem\u2019 employees through various court processes for years. You heard right &#8211; YEARS!<\/div>\n<div><\/div>\n<div>There may be many sound reasons for using in-house staff to conduct investigations. These include:<\/div>\n<div>\n<ul>\n<li><span>Keeping the costs down.\u00a0<\/span><\/li>\n<li><span>Having someone familiar with the culture and work practices of the organisation.\u00a0<\/span><\/li>\n<li><span>Knowing the individuals. \u00a0\u00a0<\/span><\/li>\n<\/ul>\n<\/div>\n<div><span>So long as the person you use has the required skills in collecting evidence there shouldn\u2019t be a problem, right?\u00a0\u00a0<\/span><\/div>\n<div><span>\u00a0<\/span><\/div>\n<div><span>Wrong! \u2013 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. \u00a0<\/span><\/div>\n<div><span>\u00a0<\/span><\/div>\n<div><span>Let&#8217;s take a look at<\/span><span>\u00a0<\/span><em>Mary-Jane Anders v The Hutchins School<\/em><span>.<\/span><\/div>\n<div>\n<h3>What happened in <em>Anders<\/em><\/h3>\n<p>Anders was employed by the school, located near Hobart, as an academic administrator (AA) and maths teacher.<\/p>\n<p>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.<\/p>\n<p>Anders disputed this decision by application to the Fair Work Commission (FWC). An outcome was negotiated, but Anders maintained her protests about the decision.<\/p>\n<p>Following her return to work, Anders had some further episodes of depression and anxiety, which again caused her to take leave.<\/p>\n<p>During this period, Anders\u2019 relationship with the school\u2019s management and other staff became problematic. It was alleged that she:<\/p>\n<ul>\n<li><span>Took issue at not being allocated a particular maths subject to teach, saying that \u201cthe gloves [were] off.\u201d<\/span><\/li>\n<li><span>Made some social media posts about her employment issues which caused the school to caution her about inappropriate use of the platform.<\/span><\/li>\n<li><span>Sent emails to colleagues about her dispute with the school.<\/span><\/li>\n<li><span>Expressed mistrust in the school\u2019s headmaster and deputy headmaster and would not communicate with them.<\/span><\/li>\n<li><span>Had such a difficult relationship with other teachers in the faculty that they had refused to work with her.\u00a0<\/span><\/li>\n<li><span>Claimed that she had been discriminated against on the basis of her mental illness.\u00a0<\/span><\/li>\n<li><span>Showed discourteous and disrespectful behaviour towards her colleagues.\u00a0<\/span><\/li>\n<\/ul>\n<p>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.<\/p>\n<p>Jones decided to terminate Anders\u2019 employment, having found that most of the allegations against her were substantiated.\u00a0He wrote to her saying that there was a total breakdown in the employment relationship, making her continued employment at the school impossible.<\/p>\n<p>Anders made a claim for unfair dismissal in the FWC.<\/p>\n<h3>The FWC decision<\/h3>\n<p>The FWC found that while Anders\u2019 behaviour may have indicated a lack of wisdom, it did not constitute a breakdown of the employment relationship.<\/p>\n<p>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.<\/p>\n<p>The concern was that he could not be impartial. This, combined with Jones\u2019 knowledge of Anders\u2019 mental health issues, \u201cdid not provide a reasonable basis for Mr Jones to conclude that each of these allegations [was] proven.\u201d<\/p>\n<p>The FWC found the termination was harsh as there was no valid reason, and ordered the school to pay compensation.<\/p>\n<h3>not the only case<\/h3>\n<p>This<span>\u00a0issue is certainly not an isolated one. The case of <\/span><em>Keiko v Qantas<\/em><span> 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 <em>Anders<\/em>, using an independent investigator would have circumvented this issue.<\/span><\/p>\n<p>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.<\/p>\n<p><span>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.\u00a0<\/span><\/p>\n<\/div>\n<div>\n<div>\n<div><\/div>\n<\/div>\n<\/div>\n<\/div>\n<p><\/p>\n<p class=\"wpss_copy\">Content retrieved from: <a href=\"http:\/\/www.wiseworkplace.com.au\/_blog\/WISE_Blog\/post\/undercurrents-of-bias-can-drown-an-investigation\/\" target=\"_blank\" rel=\"noopener\">http:\/\/www.wiseworkplace.com.au\/_blog\/WISE_Blog\/post\/undercurrents-of-bias-can-drown-an-investigation\/<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer. \u00a0\u00a0 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 [&#8230;]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"wds_primary_category":0,"footnotes":""},"categories":[16],"tags":[49,106,153,116,73,57,94,118,52,222],"_links":{"self":[{"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/posts\/3594"}],"collection":[{"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/comments?post=3594"}],"version-history":[{"count":0,"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/posts\/3594\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/media?parent=3594"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/categories?post=3594"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.wiseworkplace.com.au\/wp-json\/wp\/v2\/tags?post=3594"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}