Supporting stakeholder wellbeing during investigations

Vince Scopelliti - Friday, March 26, 2021

Participating in a formal workplace investigation can be a stressful and difficult experience, whether you are a complainant, respondent, witness, manager or HR professional. Organisations need to consider how the health, safety and wellbeing of all participants can be supported during an investigation and how they can meet their duty of care. Some simple preventative practices can be of significant benefit - here’s how. 4

Employee Assistance Programs 
One of the first tasks to action when an investigation needs to take place is to conduct a risk assessment based on the information available. This should include a vulnerability assessment and ensuring that all parties have access to wellbeing and support services at every stage of the process. Employee Assistance Programs (EAP) and or other similar programs are an important source of impartial support and can assist stakeholders in improving their resilience and reducing the impact of stress during difficult times. Make sure you provide information to stakeholders about the services available through your EAP provider, or any other alternative support services you can offer, including details of how to access the service and important information about their rights and entitlements (such as the right to privacy and access to a support person). Don’t forget to document this step. 
If the investigation is likely to be complex or involves sensitive or potentially traumatic elements, it is a good idea to check with your EAP provider or alternative support service that they have people with the right skills and training to support employees involved in a workplace investigation. That way, you can confidently refer your parties to a quality service with reliable support. 

Clarity & Communication 
Another way that the potential stress and strain of an investigation can be reduced is by providing clear and regular communication to stakeholders. For most employees, being a party to an investigation is a very foreign experience. When people feel uncertain and unsure about what to expect during an investigation, their stress and anxiety can increase, which can also have the effect of increasing workplace conflict, complications and parties seeking help from lawyers or other advocates. So wherever possible and appropriate, you should keep stakeholders informed about procedural matters such as timeframes, organisational policies and processes. Ensure that they have been provided with the information they need to understand how the principles of procedural fairness will be applied to the investigation, their rights and responsibilities. Make sure you also let them know who they can contact if they need additional information or want to query a particular process. 

Confident & Skilled Investigators 
So, your employees are being supported and they understand what to expect during the investigation. The next step is making sure that people leading the investigation are experienced, confident and expertly skilled in their practice.  When investigating matters which are highly sensitive, critical or involving vulnerable people it is also essential to ensure that the interview and investigation process does not contribute to or cause further harm or distress. It can also be wise to consider how the investigator will be perceived by parties in the interview context, making sure you also consider gender and cultural issues relevant to the matter. 
 It can also be important to ensure you consider the impact of the case on the wellbeing of your investigator. Think about their experience, skills, and specialist expertise. An investigator who is experienced in insurance fraud or financial misconduct may not be the right person to lead an investigation into discrimination or sexual harassment, and might find the subject matter challenging. Some good questions to ask yourself are: 
  • Does my investigator have the requisite qualifications and industry experience to perform the task I am asking of them? 
  • Does my investigator have the confidence, tools and techniques necessary to tackle difficult topics and subject matters, and to inspire trust in the parties? 
  • Does my investigator have the resilience and insight to effectively manage any personal feelings or impacts which arise as a result of the investigation?   
If you can confidently answer “yes” to these three questions, then you are on the right track. If not, don’t panic. WISE Workplace provides a range of investigation services nation-wide. If you need assistance with managing an investigation, developing or strengthening your HR team’s skills in this area or would like to discuss how WISE Workplace could support your business please do not hesitate to reach out on 1300 580 685 or email admin@wiseworkplace.com.au.

Preventing Fraud and Financial Misconduct in the Workplace

Eden Elliott - Friday, March 12, 2021

by Cassie Roylance 

Unfortunately, employee fraud and financial misconduct is a common issue for businesses in Australia, costing billions of dollars each year.  WISE Workplace is often engaged by businesses to undertake investigations regarding financial misappropriation, theft and fraud – but organisations can do a lot more to prevent fraud before it can occur

“Misplaced trust, inadequate hiring and supervision policies, and a failure to implement strong internal controls create an environment that is ripe for an employee to commit fraud. Employee fraud is therefore about opportunity.”

CPA Australia

The approaching end of the financial year provides business with an opportunity of their own, to refresh policies and safeguards which prevent employee fraud. Here are three helpful recommendations from our years of work in this area, to help your business reduce and control opportunities to commit fraud.

Third Party Audits

WISE Workplace has found that by the time concerns regarding employee financial misconduct are raised, the behaviour has been going on unnoticed for years at a time. This is especially the case in small businesses with a culture of trust, low staff turnover and in-house financial management.

By implementing an annual financial audit process, businesses are better placed to detect discrepancies early. An external audit process can also reduce the likelihood of employees doing the wrong thing, as the chances of being caught and facing consequences significantly increase.

A third-party audit created a culture of accountability, reduces opportunity for misconduct to occur, and may prevent major financial losses which can be a catastrophe especially for small businesses

Improving Financial Literacy

Another helpful way to reduce the risk of fraud and misconduct in your workplace is to improve the financial literacy of employees who hold a financial delegation. Have you noticed a tendency for team leaders and managers to sign paperwork without reviewing it appropriately first? This is an indication that there may be lack of awareness or understanding about the significance of the financial delegations they hold and of the practices required to meet these obligations.

By enhancing the ability of the leaders in your organisation to review, query and vet financial material, they will be well placed to identify matters such as purchase orders, invoices and contract terms that are not quite right.  

Strengthening Procurement Processes

Another area which can reduce the opportunity for financial misconduct to occur is through good governance around real and perceived conflicts of interest. Conflicts of interest should be viewed as an important part of ensuring transparency, probity and due diligence in the procurement process.

Conflicts of interest are not the problem – unknown and unmanaged conflicts are. It is important that your staff understand the difference to encourage them to disclose conflicts. Once conflicts are identified, processes can be implemented to remove or manage the conflict. 

When a business is aware of real and perceived conflicts of interest, the procurement process is strengthened. By checking the Conflict of Interest register when engaging in procurement, your business can review and quality assure tendering and contracting awarding processes with third parties. Without this kind of rigour, employees may exploit the procurement process, perhaps by awarding contracts and tenders to businesses that they have a financial interest in, or that are owned and operated by a spouse or family member.


If all else fails and you do have evidence of unexplained anomalies, employee fraud or financial misconduct, rest assured that  WISE Workplace are experts in leading investigations into allegations and concerns of fraud and financial misconduct in private industry, the public sector and the not-for-profit sector. WISE Training also offers professional development courses for HR Professionals, Managers and Financial Leaders in relation to fraud investigation. For more information about how WISE Workplace can help your organisation, contact us on admin@wiseworkplace.com.au or call 1300 580 685.

Key Principles for Successful Conflict Resolution in the Workplace

Eden Elliott - Thursday, December 10, 2020

by Katherine Robertson 


Workplace conflict is considered one of the biggest cause of staff turnover and costs to businesses. Queensland Government research shows over 65% of employee performance problems are the result of strained relationships rather than a lack of skill or motivation. It is imperative therefore that those responsible for dealing with workplace conflict have the necessary skills to ensure conflict is resolved effectively.

Do not judge or decide who is right or wrong

When we are the observer of conflict between others it is easy to feel that what we are observing is ‘childish’, or even unfounded. When we sit in judgement, dismiss conflict, or spend our time trying to determine who is right and who is wrong, we lose the ability to understand the driving forces behind the contention. This creates a situation in which the conflict continues or even escalates.

Uncover what is driving the conflict

Often when parties are in conflict, what they present on the surface is not what is driving the conflict. It is imperative that we unpack what is happening for the individuals through an assessment process. To understand what is motivating individual differences, leading to disagreement, one must actively and openly listen to what is being presented.

Take the example of two children fighting over an orange, it is easy for a parent to halve the orange and put a stop to the arguing. However, if the parent took the time to understand what was driving the conflict, they may learn that one child needs the pulp to make a cake and the other wants the juice to drink. It is important that we understand what the drivers of conflict are, as these motivating factors represent what lies underneath the conflict being presented.

Empathise without aligning

This can be difficult to achieve, particularly if we have preconceived ideas of what the conflict is about. To build rapport with the parties it is imperative that we actively listen and empathise with their situation. For example, "it sounds like this has been a difficult time for you", "I can hear that you are confused and upset". These statements reflect the ability to empathise with the persons situation as well as demonstrates active listening, this approach leads to effective rapport building without aligning with the aggrieved person.

Aligning involves agreeing with one of the parties and/or justifying their actions or behaviours. For example, "It sounds like the other party was out of line", "You have every right to be angry, I would be too". Aligning leads not only to ineffective conflict resolution strategies but can also lead to an escalation of conflict and/or further complaints.

Adopt a strength-based and solution focussed philosophy

Operating from a place where we acknowledge that everyone has strengths, they bring to the workplace sets the foundation for a solution focused approach to conflict resolution. If we can support the conflicted parties understand their strengths, we create an environment where positive and future focused agreements can arise, where people can feel confident and in control of their professionalism.


At WISE Workplace, our specialist mediators and workplace engagement experts can assist you to resolve workplace conflict in a timely and effective manner for lasting results and thriving interpersonal relationships. Contact us on 1300 580 685.  

When to engage an external mediator?

Vince Scopelliti - Friday, November 27, 2020

By Katherine Robertson

Safe Work Australia research has found poor psychological safety costs organisations $6 billion per annum in lost productivity. The research also found interpersonal conflict was one of the main causes of work-related injury.   

It is essential that organisations have access to trained workplace mediators as they can be a valuable resource in resolving conflict amongst employees. Not all organisations have internal mediators and there are times when engaging an external mediator is advantageous.

Perception of alignment

When aggrieved employees feel their employer, or HR department is aligned with the other party to a dispute, whether this is real or perceived, it is often an indication that involving an external mediator will lead to better outcomes. External mediators do not have prior knowledge going into the mediation and only obtain information from the aggrieved employees to assess suitability for mediation. This means the mediator is only invested in the outcome being positive for all parties involved and not invested in a particular outcome.

Prior attempts to resolve conflict internally

Often as a first step, HR departments with the support of Senior Management seek to resolve conflict between their employees as a ‘soft touch approach’. This is often a good first step but if conflict is not resolved here, it can often lead to escalation, employees feeling nothing will change and also lead to an increase in sick days. If organisations have attempted the ‘soft touch’ approach to no avail, seeking the support of an external mediator can help offer a fresh perspective and support parties to reach agreements. 

Image: an external mediator can avoid the frustration of emotional appeals from parties.

High and complex conflict

Often HR professional become aware of conflict between employees when it has already escalated, become deeply engrained and is starting to have adverse effects across teams. Often in these situations a ‘soft touch’ approach will not resolve the conflict and engaging an external mediator is warranted.  Expert mediators can explore and uncover what is underlying the conflict and from there support parties to reach mutually accepted agreements on how they want to work with one another moving forward. External mediators adopt a strengths based, and solution focussed framework to support aggrieved employees reach practical workable agreements that are long lasting.

The need for practical future focussed agreements

Engaging an external mediator that does not know the day to day operations of the business can be advantageous because when it comes to supporting parties reach practical agreements they can often shed new light on areas that may not have been considered by HR and Management. Expert mediators are trained to support employees reach practical agreements by workshopping possible solutions and ensuring they are aligned with their organisational values.


WISE offers mediation and conflict resolution services in each state, which we can conduct remotely or in person. 

Get in touch with us on 1300 580 685 for more information, and be on the lookout for our next article on the Key Principles of Conflict Resolution.

Record damages awarded to NSW employee for wrongful termination: what can we learn?

Eden Elliott - Friday, October 30, 2020

Case study prepared by WISE Workplace State Manager NSW, Tracey Bosnich 

Image: unfair dismissal

Most of us may believe that if a contract is not signed, it is not legally enforceable. On 10 September 2020, the NSW Supreme Court handed down a significant decision, awarding record damages to an employee for termination of employment and amongst other findings, providing grounds upon which an unsigned contract may be held to be legally enforceable and take precedent over a signed contract.

Background

Ms Melinda Roderick (“Roderick”), the Executive Director of Washington H. Soul Pattinson & Company Ltd (“WHSP”) had been employed since 2006,  when Roderick commenced in the role of Chief Financial Director. She was appointed as Finance Director in 2014, till 12 April 2018, when she was terminated without notice. More notably, Roderick was the only female on the Board and was the second most senior employee in the company.

On 10 September 2020, Roderick was awarded record damages in the amount of $1.105 million. The case was litigated on the issues of termination of employment without warning, failure to give reasonable notice of termination, and failure to pay both short term and long-term incentive entitlements.

Original Signed Contract v Unsigned Contract

Roderick's terms and conditions of employment were originally set out in the 2006 contract ("the original contract"). However, following Roderick becoming the Finance Director in 2014, a draft ‘new contract’ was made in 2015, but was never signed. WHSP argued the original contract prevailed. 

Roderick submitted that when she became the Finance Director, the original contract was discharged. The Court noted that there was a significant change in her role tasks, obligations and duties and that the original contract could not have appropriately been applied in the circumstances, especially where the original contract ‘did not contain a clause specifying that it would remain in force, even if the duties are altered’. It was noted that under the new contract Roderick's responsibilities had significantly increased, in that she became the director of 12 companies. 

Despite the new contract being unsigned, the Court found that the implied intention was for her original contract to be discharged and for the parties to be bound by the new contract. Therefore, the terms and conditions of the unsigned new contract were found to apply and took precedent over the signed 2006 contract.

Calculation of termination payment 

WHSP calculated Roderick’s termination payment based on the signed original contract. Accordingly, Roderick was only paid three months’ of her old salary, in lieu of notice, which was expressly stipulated as the notice period in the original contract.

Roderick’s claim for damages was made in accordance with the notice period expressly stipulated in the new unsigned 2015 contract, being 24 months; and for payment of an amount representing her incentive entitlements under both the long-term and short-term incentive plan and scheme, included in the new contract.

Key issues litigated with respect to damages

There were five issues litigated: whether the original 2006 contract containing the express term of three months' notice applied; if the new unsigned contract applied, what was the implied period of notice; the notice period Roderick should have actually been given; determination of whether Roderick was eligible for entitlements pursuant to the short term and long-term incentives; and the reason for her termination.

Implied Notice and Incentive Bonuses

WHSP argued the original contract provided an express term of a three-month notice period.  As they did not give three months' notice, WHSP paid Roderick an amount in lieu of the three months’ notice and therefore argued they were not in breach of contract.  Roderick argued she was entitled to 24 months’ notice in accordance with the unsigned 2015 contract.

Once the Court established that the original contract no longer applied, it had to determine, what the ‘implied reasonable notice term’ should be. The Supreme Court did not uphold the 24 months’ notice period in the new contract, but determined that Roderick was entitled to 12 months' notice.

Roderick argued the new contract entitled her to the incentives. WHSP argued it was not obliged to pay the incentives as payment was discretionary and dependent on performance, and that Roderick was terminated for ‘poor performance’,  had not worked the full year and was no longer employed. WHSP further submitted that Roderick was terminated prior to the assessment of these incentive benefits.

The Court stated any "decision as to payment is only discretionary in the sense of assessing [Roderick's] performance against the KPIs". The Court stipulated that was an implied contractual obligation to "exercise any discretion conformably with the purpose of the scheme and not to choose arbitrarily or capriciously or unreasonably to not pay money, irrespective of whether the agreed parameters had been achieved". The argument to not pay Roderick as the employment ended "only a matter of days before the end of the relevant financial year would be quite unreasonable and arbitrary".

Reason for termination

The termination letter stated that Roderick was "not the right fit". Roderick argued that she was terminated without explanation. WHSP then subsequently submitted during the litigation, that Roderick was actually terminated for “poor performance”.

The Court noted that it was a "curious feature" that there was not a single document noting an issue with Roderick's performance, including the termination letter itself. It did not accept that Roderick had performed poorly,  but more so "that it (WHSP) could do better in terms of value for its money" given that a day after terminating Roderick, WHSP hired a new CFO on a lower salary. Further, the new CFO had no position on the board and reported to the chief executive, which the Court noted "would have saved [WHSP] a considerable sum".

Key lessons

This case illustrates the following important points for employers:

  • employers should be aware of the terms of their employment contracts;
  • employers should ensure the contract is executed by all the parties;
  • where an employee’s role title, duties and obligations are changed, the Court will look into the ‘intention of the parties to be bound by that contract’ as well as any alteration of responsibilities and duties, to determine when there is a signed contract and an unsigned contract, which contract will apply.

The dangers of wrongful termination for employers are significant – in this case, to the tune of over a million dollars. Employers should always be cautious when ending employment contracts, particularly if the termination involves role changes, very senior employees, complaints, disputes, poor performance or particularly wrongdoing, to ensure termination processes are both compliant and procedurally fair. 

WISE Workplace offers consultancy support with HR and dispute resolution matters to assist employers in meeting these obligations.  If you are seeking advice on the proper way to resolve an internal workplace dispute, contact us today.

COVID-19 decision making: Who is essential?

Eden Elliott - Tuesday, September 01, 2020

As employers, it can be difficult to classify any of your employees’ work as non-essential when every member of your team brings valuable individual strengths. These decisions can also pose significant risks where employers and employees want different things, sometimes leading to employees submitting appeals or complaints about their employer’s determination.

Image: balanced decision-making

We have all been surprised by COVID-19, and many employers have found a need to quickly develop  working from home and pandemic policies to support their decision-making around who stays home and who goes to work. What should these policies include?

  • Employers should always base their decision making on government directions at the applicable time, and appoint a designated officer to monitor and record new guidelines as they are issued. You don’t want to get caught having relied on old advice, or missed a crucial development. Any policies should be driven by this process of checking and applying guidelines, and identifying responsible decision-makers.
  • Review your other policies and make sure they capture the right circumstances. Does your definition of misconduct or bullying include online and remote behaviour? How are you upholding your data privacy obligations for staff working from home? Does your sick leave policy accommodate staff getting tested and waiting for results?
  • For larger organisations, it might be appropriate to decide working arrangements based on specific employee roles, which can provide employees with certainty and consistency around their futures. This can also increase practicality by allowing simpler identification of the working from home needs of each role.
  • Consultation is key to avoiding complaints, which means the policy should provide for employees to have the opportunity to request and make their case for how they prefer to work regardless of their role. These submissions should be kept private and confidential, and should invite employees to nominate practical, health & wellbeing, productivity and any other reasons. However, employers must take care to demonstrate that these submissions have been considered in any subsequent decision, and not ignored.
  • Put measures in place to support your staff while working from home and from the office in pandemic circumstances. Check in with them regularly, acknowledge the difficulties they face, and never forget to recognise their successes. Consider Employee Assistance Programs. Many employers have increased accountability measures for staff working at home, and it is  important to minimise feelings of micromanagement by recognising that these can also be a tool for identifying & addressing increased stressors and other difficulties that take up your employees’ time.
  • Put your duty of care first. At the end of the day, the wellbeing and safety of employees must take precedence, regardless of the short term frustration, decreased productivity and cultural changes to which working from home can contribute. The pandemic will not last forever, and an employer’s response to crises can have a significant impact on employee loyalty, retention and recruitment options in the future.
  • Get expert advice. If you find it difficult to build your processes, or if you receive complaints from staff, WISE can assist in reviewing decisions and policies to help meet employer obligations.

Call WISE on 1300 580 685 to help you develop your pandemic policy or respond to staff complaints.

Power and sexual harassment in the workplace

Eden Elliott - Wednesday, July 01, 2020

Despite decades of effort and improvement in Australian workplace legislation and culture, sexual harassment is, unfortunately, still a real and prevalent issue, mostly recently for a former High Court justice. This case highlights the link between power imbalances and harassment behaviour. 

In 2018, the Australian Human Resources Commission published a national survey which found that one in three people experienced sexual harassment in the workplace. The likelihood of victimisation increases for people who are female, aged 18-29, not cisgendered or heterosexual, Aboriginal or Torres Strait Islander, or have a disability. These are all qualities that are recognised by most workplace equal opportunity and anti-discrimination policies, demonstrating the importance of promoting and ensuring workplace equality overall as a means of preventing sexual harassment. Workplaces need to ensure that their policies on equality include these intersectional issues, so that increased likelihood is balanced by comprehensive and specific protections.

The link between inequality and sexual harassment

A recently published study by the Victorian Legal Services Commission indicated that an average of 2 out of 3 female and 1 in 10 male legal practitioners had experienced sexual harassment in their workplaces. The study also found that power imbalances were a key ingredient for instances of sexual harassment for the legal professional, again placing equality at the heart of the issue.

What can your leaders do to prevent sexual harassment?

Industries built around professional services and hierarchical workplace dynamics take note: your people are more likely to experience harassment from senior members of your profession. However, these dynamics can also present opportunities for your senior team members to provide cultural leadership, by representing and committing to a zero tolerance attitude towards sexual harassment. Prevention is better than cure, and it is crucial for workplaces to provide the right support, education and development of team members at all levels so they can manage their own behaviour, understand the realities of sexual harassment, and fulfil their role in creating a culture which leaves no room for predatory behaviour. 

What can everyone do to prevent sexual harassment?

The AHRC’s national survey also identified a decrease in reporting of sexual harassment incidents by witnesses and reporting by less than a quarter of complainants. Here is another opportunity for workplaces to ensure their complaint processes include protections for reporters, in particular by ensuring complete confidentiality. Complaint processes should also recognise and preserve the distinction between taking a complaint seriously and supporting a complainant and failing to afford the accused person with full procedural fairness.

Preventing sexual harassment in the workplace starts with a culture of equality, built on strong policies, processes and leadership. Employees have the power both to report harassment when they see it, and to use their own conduct to demonstrate to offenders what is not acceptable. If your workplace would benefit from better insight into your existing workplace culture, refreshed policies or training for your cultural leaders, WISE Workplace can assist. Contact us on 1300 580 685 to talk about your needs.

Substantive, Not Superficial: A Call to Improved Procedural Fairness

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses, had experience providing gastronomic care at another facility and had been approved by Disability SA. She believed she had been approved to provide that care.

Two days later, the employee was called without warning into a disciplinary meeting with HR where her lack of certification and other qualifications were discussed again.

The HR officer stepped out of the disciplinary meeting for five minutes.

On return, the officer handed the employee a summary dismissal letter which recorded that the employee had received an opportunity to respond to a serious misconduct allegation. the letter terminated her employment with immediate effect.

FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”

FWC Findings

Ordinarily, an employee performing a medical procedure on a client, knowing they lacked the required certification would justify summary dismissal. Anderson acknowledges the care worker’s assumptions can be reasonably criticised, but also found that the “unique circumstances of this matter” with factors that significantly “mitigate the seriousness of the conduct.”

Anderson found the lack of notice and the timing of only 48 hours between the instruction and the disciplinary procedure to be harsh and unfair. The process also had only superficial procedural fairness, since the employee’s ability to respond was limited and she was not fully warned of the risks to her employment or afforded the right to support during the process.  Anderson also found that the urgent treatment of the matter was unnecessary. 

Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).

what can we learn from this case? 

Matters involving dismissal must be handled with utmost sensitivity, caution and procedural fairness even in matters of perceived urgency. There is often grey area in matters of misconduct that may seem black and white. To ensure you are best informed and equipped to handle these challenging circumstances, WISE offer expert third party HR services including training, investigations and reviews.

Our Approach to COVID-19

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

Reliable solidarity in the face of covid-19:

We take the health and wellbeing of our people, clients and the broader community seriously. Our risk management team are meeting daily to ensure our continued service, support and protection to our clients, team and community.

We are acting in line with government guidelines and have taken additional steps to minimise risk of infection and impact on our community. We will evaluate and act on updates and changes to the COVID-19 situation as they occur, modifying our approach as necessary.

business continuity - supporting you.

We are fully resourced to support clients. We are monitoring the development of COVID-19 daily and will keep clients informed if there are any changes to our operational approach or capacity.

Our team are fully equipped to work remotely, with security and technological support in place to ensure our customer service continues to exceed expectations with care, teamwork and integrity.

Our ability to conduct business is unchanged, and we will continue to work together to care for each other and for our clients and investigators, with heightened and ongoing health and safety measures in place and a focus on customer service.

In line with this, when conducting workplace investigations, our investigators will now enquire about Covid-19 risks at workplaces, homes and other locations prior to their attendance in order to minimise risk to all parties, as well as taking additional hygiene precautions. Where risk are identified, we will be conducting interviews via video or teleconference form to ensure the health and safety of our team, clients and community.

Rest assured we are able to continue to support our clients during this period of uncertainty. We are available for contact as normal, and encourage you to reach out if you require further support.

How Fact-Finding and Disciplinary Investigations Differ

Vince Scopelliti - Tuesday, February 25, 2020

When dealing with allegations of staff misconduct, employers must be able to clearly delineate between fact-finding and disciplinary investigations. 

This includes communicating the difference to staff involved in the process.

fact-finding vs formal investigation

A 'fact-finding' process is often a necessary preliminary step in determining whether a disciplinary investigation is warranted. Following an incident or complaint, a third-party must interview involved parties to obtain objective information and determine whether the event merits a more detailed investigation.

Alternatively, the results may be sufficient to establish that there was no misconduct, or that the results of any further investigation are unlikely to provide any clear determination. Fact-finding may initially be a fairly informal process, although it should still be clearly documented.

It is extremely important that staff are made aware that a fact-finding process is simply that - not accusatory but only to gather information. This should be clearly spelled out in the organisation's policies and procedures, which staff participating in the process should be pointed towards.

By contrast, once an investigation has commenced, the process becomes much more detailed and formal. This includes the preparation of specific witness statements, collection of detailed information and supporting evidence, and the preparation of a report. That report will be relied upon by management and other decision-makers in determining the consequences following an investigation.

Disciplinary investigations are formal processes that involve specific allegations being put to employees. They are surrounded by confidentiality obligations, and are intended to determine whether an incident was a breach of policy which warrants disciplinary action, and not whether an incident actually occurred.

It is important to bear in mind that the point of a disciplinary investigation is to protect the rights of an individual subject to potential disciplinary proceedings.

communicating the process to the employees involved

Parties engaged in a fact-finding process should be advised clearly why they are involved.

Although it is an informal process, staff should be told that they are being interviewed to outline and assess matters of concern before management can determine a course of further action.

The purpose of the meeting should also be clearly outlined, as well as its status as part of a preliminary assessment or a potential precursor to a formal investigation. However, although the general nature of the query needs to be raised, there is no need for specific information to be divulged.

Before potential respondents are interviewed during the fact-finding process, management should give serious consideration to whether it is essential to do so. If it really is required, the potential respondent must be told that the next steps could involve moving to a formal investigative process and potentially the issue of misconduct allegations which will require a formal response.

what happens when the line becomes blurred

At any point when fact-finding starts getting too close to asking specific questions related to the subject nature of any potential complaint, it is straying towards an informal disciplinary investigation.

This is rife with potential implications for the business, particularly if formal disciplinary processes are commenced as a result. The rights of the accused employee are at risk, and any conduct endorsed by the business could result in unfair dismissal or similar actions by the employee. At this stage, it is recommended that a business involve the services of a formal, external investigator to finalise the process.

If you want to protect your business, draw a real distinction between fact-finding and disciplinary investigations. This can be achieved by using an external provider for all disciplinary proceedings. WISE Workplace offers independent, unbiased and expert third-party investigation services to support you every step of the way - from unpacking the facts of a workplace problem to analysing all sources of evidence raised in relation to misconduct.