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WISE Workplace is a multidisciplinary organisation specialising in the management of workplace behaviour. We investigate matters of corporate and professional misconduct, resolve conflict through mediation and provide consultation services for developing effective people governance. 

Through the delivery of professional development opportunities and self published practitioner guides, we are the centre of excellence for the ongoing professionalisation of workplace investigations across Australia.

The Latest from the Blog

Professional Distance and Conflict of Interest at Work

Vince Scopelliti - Wednesday, September 20, 2017

During the seventies and eighties, organisations started to realise that the improper use of power and authority and undeclared and/or ineffectively managed conflicts of interest, posed a significant risk to their integrity and public trust. 

The requirement for ethical business dealings focuses the spotlight on conflicts of interests and the factors involved in creating the perception of conflicts of interest in the workplace. 

It can be difficult to maintain a suitable professional distance with colleagues, subordinates and suppliers, particularly if a significant friendships have been formed outside the workplace. There is an increased risk when managers, employees and co-workers communicate on social media. Employers must also be vigilant about the risks of inappropriate levels of professional distance with clients or colleagues, especially in circumstances where such behaviour may lead to, or can be perceived as, grooming of vulnerable persons. 

When it comes to conflicts of interest, it is best to completely avoid any behaviour, which may result in the creation of a real or perceived conflict of interest. For this reason, many professions address this specifically in their Codes of Conduct or may draft specific conflict of interest policies, which set out expected and appropriate standards of behaviour. 

In our planned six-part series we'll unpack the key elements of professional distance and conflict of interest, from maintaining professional boundaries to determining the difference between a lapse of judgement and grooming. 

breaching professional boundaries   

According to Dr. Anna Corbo Crehan, from the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, questions of professional distance occur when two or more people involved in a professional relationship also have an additional relationship, such as one based on love, attraction, friendship or family. "So then, professional distance is the space a professional must keep between their professional relationship with another, and any other relationship they have with that person. By keeping this space, a professional can fulfil their professional and personal obligations, and be seen to do so, in a way that is impartial and/or non-exploitative in regard to the other in the relationship", she says. 

Breaching professional boundaries can also refer to the failure to manage conflicts of interest. A particularly close relationship between co-workers, especially those involving persons in a position of authority, may create the perception (whether real or imagined) of inappropriate work-related benefits or advantages being bestowed on a close associate because of the friendship. 

The most common types of conflict of interest are financial, such as where a monetary advantage is bestowed or a financial saving made, and personal, where a clear benefit is provided to the recipient such as a promotion or an opportunity for advancement or training and development. 

The best way to avoid perceived conflicts of interest is by maintaining clear professional boundaries, especially by those in a position of power, such as employers, supervisors, managers, or instructors. In extreme circumstances it may be prudent to completely avoid forming any relationships with colleagues outside of work.

codes of conduct and different professions 

Many professions abide by specific Codes of Conduct, which set out and govern acceptable standards of behaviour in their specific industry and provide comprehensive guidelines as to what is considered appropriately maintained levels of professional distance in that industry. 

For example, an inappropriate level of closeness may mean one thing in the context of a school teacher, and another thing in the context of a physical therapist. Professions such as nursing, teaching and social work need to have an additional emphasis on protecting vulnerable persons (such as children, the elderly, the disabled, of the mentally ill) from unscrupulous persons of the effects of inappropriately close relationships. 

In other professions, such as aged care or legal services, it is vital that professional distance is maintained to avoid any perception (whether actual or imagined) of financial abuse and conflicts of interest, when a client confers excessive financial benefits on the service provider. 

One recent example of a breach of an industry specific Code of Conduct involved a police officer who sold confidential information and provided accident locations to a tow truck driver, who gained a financial advantage from arriving on the scene ahead of competitors. 

On many occasions, a failure to maintain an appropriate professional distance occurs inadvertently or without any intentional wrongdoing. While it is beneficial for colleagues to develop good relationships with their co-workers, it is important for all employees to be able to maintain a perception of professional distance so that it does not appear as though they are incapable of making impartial business related decisions. 

professional distance and social media 

In the modern workplace, social media has become a virtually omnipresent phenomenon. With the advent of many different types of social media platforms, including LinkedIn and Facebook, there are many opportunities for workers to remain connected. 

Most employers recognise that social media is a platform that is both complimentary to, and additional to, other methods of communication and engagement used by them. Most employers also understand the beneficial networking functions of social media, particularly in the case of LinkedIn, however there is a far greater risk of boundaries being crossed or lines being blurred when communicating through social media. 

There can be particular difficulties in utilising social media when dealing with vulnerable people such as students, the disabled or persons with mental health issues. As a general rule, it is inappropriate for work colleagues or employers to share overly personal information or material on social media. Most workplaces have a clearly set-out social media policy. It is important that employees are made aware of its contents and application and are encouraged to use social media in a responsible, reasonable and ethical manner, in accordance with the employer's Code of Conduct. 

Broadly, if content is critical of a colleague, affects his/her reputation, is personal, hurtful, potentially embarrassing to a co-worker, or otherwise inappropriate, it could easily breach the requirements of professional distance.   

determining grooming, or an error of judgement. 

An important aspect of maintaining professional distance involves taking steps to avoid situations where it could be perceived that 'grooming' is taking place. This is essential not just in the context of children, but other people who are deemed to be vulnerable, including the elderly, those with disabilities, or those involved in situations where there is a power imbalance. 

The act of grooming is a criminal offence in many Australian states. It is a term which generally refers to deliberate and sustained contact with a vulnerable person in order to obtain their trust and prepare them to participate in the groomer's intended purpose, which may be sexually, financially or otherwise motivated. 

As a responsible employer, if somebody reports concerns about potential grooming, or you observe the possibility of such behaviour occurring, it is important that a workplace investigation is conducted to determine whether the contact is in fact grooming, or merely represents a lapse in judgement.

Dealing with a breach of boundaries 

The best litmus test when assessing appropriate levels of professional distance between managers and employees, between co-workers or between employees and clients, is whether there could, in the view of a reasonable person, be a perception of inappropriate behaviour, conflict of interest, favouritism, nepotism, or even grooming. 

If there is any possibility that such assumptions could be made, then it is likely that professional boundaries are being crossed. 

If you have doubts regarding a potential conflict of interest or breach of professional distance, then it is best to get an impartial third party to investigate. Our services include full and supported workplace investigations and training. Contact WISE Workplace today to find out how we can best be of assistance.

Document Examiners: When to Make Use of Them

Vince Scopelliti - Wednesday, September 13, 2017

Should the outcome of a workplace investigation be taken on review, the integrity of the evidence, amongst other aspects, will come under scrutiny. 

In cases where documentary evidence is relevant, it can be valuable to present expert evidence or obtain an opinion from a document examiner. 

But as a recent NSW case involving document examination demonstrates, it is also essential that the workplace investigation has been conducted and evidence gathered with procedural fairness top of mind. 

What is document examination?  

A document examiner is a qualified professional who conducts forensic investigations of documents. This might include the handwriting, the origin of a document (including whether it is an original, a facsimile or a photocopy), and whether entries on a document have been changed or deleted. 

Although there are many ways in which document examiners can be helpful, they are generally called upon to provide expert evidence in relation to the authenticity and origin of important documents. This can include:

  • Examination of documents to establish whether they are forgeries
  • Comparison of signatures and identifying markers to establish authorship
  • Examination of printing processes (such as determining whether a series of documents originated from one printer or the same type of machine)
  • Reconstructing altered or destroyed documents
  • Determining whether different incidents of graffiti originate from the same writer.  

How is it done and what are its limitations? 

Document examination is considered a forensic science, meaning that it is conducted according to verifiable and objective scientific principles. 

In this regard, a document examiner can be relatively certain when assessing types of ink or paper with a view to determining the origin of a document and whether it is an original or a copied version. This becomes much more difficult in the area of handwriting analysis, which is ultimately an inexact science. Handwriting analysis relies upon the document examiner's individual interpretation of whether two handwriting samples match each other.

USE IN CRIMINAL PROCEEDINGS 

Although there is substantial use for document examination in the workplace disputes and civil contexts, the science is also extremely important in criminal proceedings. 

In particular, document examiners might be called upon to determine whether a document is authentic or a forgery, or whether a document has been altered to change its original meaning - for example the alteration of a figure on a cheque, or a fraudulent annexure to a will. 

Case study

Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30 demonstrates the importance of document examination as well as its limitations. Prephaps even more importantly, the case demonstrates why it is of paramount importance that any workplace investigation process proceeds in accordance with the principles of natural justice. 

In Bartlett, a former ANZ State Director was awarded an unfair dismissal payout in excess of $100,000. He had been summarily dismissed for alleged serious misconduct, against the background of an allegation that he had altered a confidential, internal email and then forwarded that document to an external party, a journalist. 

The NSW Court of Appeal determined that it was not relevant whether the bank believed that the director had altered and sent on the document, but the essential ingredient in the dismissal was whether the director had in fact committed the misconduct of which he had been accused. 

As the employer, the bank carried the onus of proof to demonstrate that the misconduct had occurred and could be proven, however, the handwritten evidence on which the bank relied to prove the misconduct ultimately did not support any such conclusion. 

Although the bank had utilised the services of a document examiner to assess whether the director's handwriting matched that on the envelope addressed to the journalist, the bank was found to have denied the director natural justice in failing to provide him a copy of the handwriting sample used and therefore effectively denying him the ability to obtain a responding opinion. 

There were also various other factors, including incorrectly comparing cursive and print writing, which caused the court to determine that the handwriting expert's evidence should not be accepted in any event. 

The Bartlett case study confirms how essential procedural fairness is in all internal and external workplace investigations. 

Contact WISE Workplace to undertake investigator skills training, or to arrange to have one of our highly qualified investigators assist you with all aspects of your workplace investigation, including providing advice on whether the services of a document examiner might be helpful. 

Considering Suspending an Employee? What Should You Know

Vince Scopelliti - Wednesday, September 06, 2017

When faced with an allegation of serious misconduct made against a worker, an organisation may seek to suspend the respondent. 

But in what situations is it appropriate to take this kind of action?

tHE LEGALITY OF SUSPENSION 

When taking the significant step of temporarily suspending an employee, an organisation must be able to demonstrate an objectively good reason for doing so. 

Once preliminary enquiries have indicated that there is prima facie evidence to support an allegation of serious misconduct, a risk assessment needs to be carried out, to determine what the risks are associated with suspending or not suspending the respondent. 

The risk assessment should include: 

  • Risks to the complainant and other workers should the respondent remain in the workplace and the potential psychological impact this may have, especially in cases of sexual harassment
  • Risks of the respondent interfering with witnesses or tampering with evidence
  • Potential impact of suspending or not suspending the respondent on the morale of the workforce and the reputation of the organisation
  • Potential impact of suspension on the respondent
  • Whether the suspension or non-suspension is in accordance with the relevant disciplinary policy. 

Generally, it is appropriate to suspend a worker if an investigation into their serious misconduct is being carried out, and their continued presence in the workplace may jeopardise the process. This could include concerns about the misconduct continuing undue influence on or harassment of witnesses, or safety and security issues.

It is important to bear in mind the distinction between 'standing down' and 'suspending' an employee.

In a 'stand down' situation, the employee has not necessarily done anything wrong but the employer cannot usefully employ them for reasons that are outside the employer's control - for example, a fruit picker who cannot continue working during a significant weather event. In those situations, the employee is not paid during the stand down period. 

However, during a suspension period, the employee remains entitled to all rights of their employment contract, except the right to attend work to undertake work duties. 

An alternative to suspension could include redeploying the employee into another area, if the conduct is not of the most serious kind and or if the employer has an alternative site or role available. 

Circumstances leading to suspension 

Suspension should only be utilised in the most serious situations, where the only appropriate next step would likely be termination of employment. 

As such, appropriate circumstances leading to a suspension of an employee generally include accusations of serious misconduct such as defined in Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth)

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • Conduct that causes serious and imminent risk to the health or safety of a person; or
  • Conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer's business;
  • The employee, in the course of the employee's employment, engaging in:
            • theft;
            • fraud; or
            • assault;
  •  The employee being intoxicated at work; and
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. 

Generally, it is appropriate for an employee to be suspended at the beginning of a workplace investigation, although the employee can be suspended during the course of the investigation if it becomes apparent that their presence is or could be interfering with the investigation.

Appropriate conduct by an employer during a suspension

During a period of suspension, an employee is generally asked to keep away from the workplace, colleagues and clients of the business. If they are on full pay then they are generally not entitled to conduct any outside of work employment without the employers consent. 

Although a suspension may be the precursor of a final dismissal once the investigation has been finalised, employees who have been suspended remain entitled to a number of rights, including:

  • Full pay during the period of the suspension
  • Regular review of the suspension period
  • An endeavour to keep the suspension as short as possible
  • A clear explanation of the reasons for the suspension and the anticipated length of the suspension
  • An explanation of the employer's expectations of the employee during the suspension period, such as requiring the employee to be available by telephone during normal business hours. 
  • An assigned contact within the human resources or management team with whom the suspended employee can liaise. 

Avoiding further legal issues

Suspending an employee from the workplace is a serious intrusion on their employment and personal rights. It is essential that employers ensure that all criteria of appropriate conduct are met, in order to avoid a situation where it may be argued that the suspension amounted to a constructive dismissal. Ensuring procedural fairness, transparency and clarity in the process will assist with this objective. 

If you require assistance with a workplace investigation where an employee has been suspended, contact us. We provide full independent and transparent investigation services, or supported investigations where we offer advice and guidance as you compete the process.

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