You're Fired! Tips for Exiting Employees Gracefully

- Tuesday, February 03, 2015
You're Fired! Tips for Exiting Employees Gracefully

It's understandable that as a business owner and employer, certain members of your staff will occasionally take you to the edge of patience. Whether there are problems around lateness, poor output, unsafe practices or terrible attitude – there some staff members who you know will probably just have to go. When faced with a worker who you simply no longer want on your work floor, it pays to think through the best steps to take in particular circumstances. 

Conduct at the border
 As tempting as it can sometimes be, sacking someone in the heat of the moment can cause significant longer-term difficulties for many employers. While some extreme conduct will justify immediate dismissal, most situations will call for a more measured approach. So what sorts of misconduct could be described as ‘serious’? Unfortunately, due to the diverse and sometimes bizarre ways that humans can and do misbehave, there is no clear-cut list of every type of conduct relevant to employee dismissal decisions. Practically speaking, criminal activity such as theft, assault or fraud will in many cases justify immediate employer action. But there are also countless borderline cases of employee misconduct. Industrial courts and commissions have grappled with many of these across the years, with varying outcomes for employers. Experts in the field of industrial law are able to assist in gauging the right approach for your situation. 
Follow the path 
In most cases of unsatisfactory conduct on the part of an employee, the industrial relations system can provide helpful guidance on the correct process for dismissal. Current industrial law and applicable awards will often contain the steps that an employer needs to take prior to terminating the employment of a worker. Courts and commissions tend to take a dim view of instant dismissal without any prior warning, except in rare cases. Depending upon the worker’s job level, duties, and the type of misconduct, it is generally advisable for employers to have carried out clear and documented remedial actions, such as written warnings or transcribed meetings, prior to dismissal. 
Counting costs
It is not uncommon for an employer to decide to sack a worker on the spot, no matter what the consequences. Walking them to the gate can seem like a small price to pay for restoring the business to productivity and calm. The significant costs of such a decision can however come in a number of forms. For example, if the worker takes successful action against the employer for unfair dismissal, the business might well be forced to pay not just for quantified losses but for the legal costs of defence. Further, a wrongly dismissed worker might claim that they have suffered a psychological injury due to ‘unreasonable management action’ at the work site, particularly if heated words have been exchanged. Aside from visible costs, preparing defence materials and speaking to lawyers and claims managers can also extract time from the business that most employers simply can’t afford. 
A quiet word 
Sometimes it can take every ounce of restraint not to instantly ‘walk’ a worker whose conduct is seriously bad. And in certain cases, employers will need to do just that, for safety and legal reasons. In the alternative, it can pay to hold your fire and seek some advice on the issue. Talking the matter through with an expert in workplace matters does two things – it helps you vent your spleen to a third party, and it gives you the opportunity to find the best solution to this particular employee problem.

Workplace Bullying and the Meaning of "At Work"

- Tuesday, January 27, 2015
Workplace Bullying and the Meaning of "At Work"

The full bench of the Fair Work Commission (FWC) recently conducted a detailed analysis of the phrase ‘at work’ relevant to workplace bullying. The findings provide an insight into the possible meanings of this deceptively simple term. And with the advent of social media as a means of transmitting communications, defining what occurs 'at work' can certainly be a challenging task. 

Case in point 

This recent matter of Bowker & Ors v DP World [2014] FW CFB 9227 saw the full bench of the FWC closely examine what can be considered to have occurred ‘at work’. In this case, three workers were seeking anti-bullying orders against their employer.  The respondents concurrently sought to strike out a number of alleged bullying claims, arguing that they had not occurred ‘at work’. 

Substantial connection? 

In opposing any strike-out, the workers argued that in accordance with s789FD of the Fair Work Act, the bullying behaviour could be found to have occurred at work if a ‘substantial connection to work’ was established. However, President Iain Ross and his colleagues on the FWC rejected this position, stating that there was ‘no persuasive argument’ to expand the reach of s789FD in this way. The bench made it clear that a limiting rather than broad interpretation of the section was in order. 

Performance and authorised activities 

To provide clarity around the concept of bullying ‘at work’ within 789FD of the Act, the FWC stated that the words encompassed "both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)." In this way, the actual work functions and/or authorised activities were considered a key starting point for the application of section 789FD. 

Time and place of cyber bullying

Part of the alleged behaviour involved offensive Facebook comments that had been made about the workers. It was argued by the respondent that these had not been posted at work – and thus fell outside of the bullying provisions of the Act. Rejecting this approach, the full bench stated that it is not a question of when the offending comments are posted on social media. For the purpose of proving workplace bullying, the mischief will be seen to occur at any time that the worker accesses the comments while the worker is ‘at work’.   

Lessons learned
This case reflects the challenges inherent in applying the idea of ‘at work’ to modern cases of workplace bullying. The focus of the FWC full bench on the time and place where the bullying was experienced – rather than the time and place of posting – sheds useful light upon bullying ‘at work’ when social media is involved. And in rejecting ‘substantial connection’ as a means of determining if the alleged mischief occurred at work, the bench made clear that any interpretation of s789FD should be limited to the clear purpose of the provision within the Act.

5 Steps to Effective Management of Bullying Complaints

- Tuesday, January 20, 2015
5 Steps to Effective Management of Bullying Complaints

How you choose to manage a bullying complaint will have a significant effect upon the outcome. It can certainly be difficult to sort through and resolve the issues. Our 5 steps to effective management of bullying complaints will help you to navigate the path. 

  1. Gather the Basics. Before creating a plan of action, gather the core information. Ascertain from HR who the key parties are as reported. These might include the complainant, the subject of the complaint, and alleged victim (if the complainant is in fact a witness). Note the basic elements of the allegation, but be careful not to get too involved in the details at this point. Part of taking reasonable management action means holding off from listening to just one person, or making any early judgments.
  2. Make An Investigation Plan. Armed with basic information about the bullying complaint, you can now move forward to the development of an investigation plan. Because you know the central people involved, an outline of the complaint, and the nature and size of your organisation, you are well equipped to make an effective plan. Decide if you have the necessary investigative skills within the workplace, or if a professional workplace investigator is necessary. Whether internal or external, your investigator will benefit from a well-structured plan – and in fact might help you to create one. Plans can include a timeframe, witness names and positions, essential and inessential questions, and / or preferred interview methods. A good plan can greatly enhance the quality of the investigation.
  3. Close Off Gossip. Hopefully, the bullying issue remains contained. Yet for better or worse, knowledge of workplace complaints can often spread quickly. Perhaps the hardest step in reality, a professional effort is needed to minimise misinformation on the work floor. This does not mean placing a ‘zero tolerance’ on workplace discussion around the complaint – this is generally impractical. What may be required where gossip is flowing fast is a short statement from the employer. This could simply indicate that an investigation is underway, and that respect and discretion are required across the workplace.
  4. Investigate Impartially. Whether internal or external, any investigative process must follow the principles of procedural fairness. For example, before or during the investigation you may feel strongly inclined to believe one party or another. It is so important to resist jumping to any conclusions, particularly until the process is fully complete. If any party believes that bias has been demonstrated, then a finding of a breach of procedural fairness is a distinct possibility. Keep questions calm, on point and directed towards relevant facts only.
  5. Monitor Staff Wellness. Before, during and after your management of a bullying complaint there are essential issues our health and safety that must be kept in mind. Stress might be quite high among all involved, and you may need to give consideration to granting leave for certain staff. Some physical movement within the work space might also be recommended to reduce the potential for ongoing difficulties. 

Employing reasonable management action while handling a bullying complaint will undoubtedly ensure the fairest outcome for all. Having our 5 steps at hand will help you to create a way forward that promotes both even-handedness and a quality resolution. 

Want more information on how to respond to workplace bullying? Want to know the key definitions and legal principles? Get advice based on extensive investigations experience? Understand the key steps in conducting an effective investigation, including a template report of findings based on an actual case?   Download our e-book on How to Respond to Workplace Bullying now!

Getting It Out There: The Value of Good Debriefing

- Tuesday, January 13, 2015
Getting It Out There: The Value of Good Debriefing

Moments of conflict can and do arise in the workplace. When such problems arise, employers have an opportunity to involve staff in an organised debrief of the situation. Doing so can not only provide people with a chance to air their thoughts and feelings; employers might in fact be able to avoid future grievances and/ or the need for mediation around contested issues. 

When might a debrief be advisable? 

If a number of staff members have been experiencing conflict around a problematic work event, this might be a perfect opportunity to ‘get it all out there’ in the form of a debriefing session. A sale or presentation might have gone terribly wrong, and accusations are now beginning to fly. By designing an appropriate debrief meeting, the core issues can be aired and discussed, with mutual learnings hopefully being gleaned. An effective debriefing can in this way reduce conflict, costs, and future mistakes. 

Are there exceptions? 

In contrast, an example of a conflict scenario that is not particularly suited to the debriefing model is the one-on-one conflict. When only two or three colleagues are involved in a conflict, it might be more appropriate to deal with this at a supervisory or HR level. Particularly where there are differing power levels – such as between a manager and a direct report – a smaller and more contained method of conflict resolution might be indicated. 

How should a debriefing be organised? 

The key theme for any effective debrief is transparency. Prior to the meeting, give people an invitation complete with a short and honest appraisal of the situation. In the scenario of conflict arising from a failed endeavour, indicate that you’d really like to hear people’s views about the process and the outcome. Above all, stress that this is a no-hierarchy discussion – input will be moderated to ensure that more senior and/ or assertive people cannot monopolise the discussion. Ensure that the venue is quiet and comfortable, and that nobody who was affected has been left out. 

What should take place in the debrief?
 At the start, thank everyone for coming and reiterate that you’re keen to hear their experiences and ideas about the contentious event. Emphasise that there are no ‘wrong’ comments and complete honesty is preferred. Give a brief outline of the issue and resulting conflict, such as: “There’s a lot that went wrong with the Smith account last month. I get the feeling there are conflicting views around who’s to blame and what exactly went wrong. It would be great if everyone could let me know what they think caused the problems – and what we could change for next time.”  As noted above, it is important to ensure even contribution. While emotion is inevitable, do remind people that personal attacks are not okay. An effective debriefing should be carefully designed and run, to ensure that only the most positive outcomes are achieved. 

What happens next? 

At the end of an effective debrief, summarise the group’s findings and any agreed actions. Read back, and then make any corrections if you have misunderstood or misheard particular points. Thank all participants for their contributions and their honesty. Give a timeframe for any undertakings that you have made – and stick to it. If the session has been handled professionally and transparently, then festering issues regarding blame, disappointment and anger have hopefully been dealt with in a productive way. 

Considering the costs of grievance management and workplace mediations, a well-run debrief session has the potential to not only save friendships, well-being and morale – it can also reduce expensive processes of conflict resolution. 

Drinking on the Job: Expensive Lessons for Employers

- Tuesday, January 06, 2015
Drinking on the Job: Expensive Lessons for Employers

History shows that a group of co-workers letting their hair down at an office function can sometimes lead to regrettable outcomes. Yet it doesn’t necessarily follow that a worker’s dubious behaviour will amount to serious or gross misconduct. A recent case in the NSW District Court highlights how an employer’s overall attitude towards staff conduct and misconduct will have an impact upon how particular employee behaviours should be perceived – something to keep in mind if employers are currently dealing with the aftermath of the annual work Christmas party. 

 At work ‘the morning after’ 

In the case of Mitchell-Innes v Willis Australia Group Services Pty Ltd (No 2) 2013/148638 (8 December 2014), a state manager for Willis was summarily dismissed for what was described as gross misconduct. During a conference, the manager arrived at a morning session still intoxicated from the previous night’s drinking. The drinking had occurred at a work-related function. His behaviour in the morning included speaking loudly, laughing, throwing a lolly, smelling of alcohol, and at one point making animal noises. For the rest of the session, the manager worked quietly on his device at the back of the conference room. The employer terminated the man’s employment on the basis that his behaviour and intoxicated state that day amounted to gross misconduct. 

The employer’s attitude to staff and alcohol 

Judge Philip Taylor assessed a number of factors within both the manager’s behaviour and Willis Australia’s policies around staff drinking and general conduct. His Honour noted that Willis had a quite permissive attitude towards work-related alcohol consumption. Evidence of this included the provision of open bars at work events and a ‘follow the client’ approach to customer relations. In the latter case, this would include matching the alcohol consumption of a client. Taken as a whole, the employer’s attitude towards such behaviour was quite encouraging. 

Decision to terminate

While the conference was not a client-based event, Judge Taylor noted that the overall encouragement given to staff around socialising and alcohol should be considered. His Honour did concede that the employer had been able to establish misconduct on the state manager’s part – but not serious or gross misconduct sufficient to warrant the summary termination of the manager’s employment. Damages close to $300,000 were awarded to the worker as a result of the employer’s decision to terminate.     

Eye of the beholder?
For employers, the findings of Judge Taylor in the Willis case provide a ‘sobering’ reminder of how the courts can see things quite differently to employers around the issue of serious misconduct. On the surface, a state manager arriving at a conference session noticeably drunk might appear to be a classic case of gross misconduct. Yet the culture and attitudes of the employer around alcohol can have a palpable effect on how the courts might view any disciplinary measures taken against staff. 

Clear contracts and policies 

This is particularly so where employment contracts and internal policies do not adequately specify the meaning of ‘serious misconduct’ in the workplace. In such circumstances, the informal actions and permissions given by an employer to staff members around behaviour will be closely examined by the courts. In the case of Willis, the employer’s generally lax attitude towards alcohol consumption, combined with the manager’s quite mild misbehaviour the next morning, were such that the termination was not appropriate. To establish gross misconduct, aggravating factors such as violence, offensive language, or other extreme behaviour would be necessary. 

Expensive lessons 

If an employer considers terminating an employment contract on the basis of behaviour at or around a work-related function, Willis highlights the need to avoid hasty decisions. This is because if it is found that an employer’s attitude to work-related ‘partying’ is quite lax, then establishing serious misconduct for any alcohol-fuelled behaviour might be difficult. Clear contract definitions and policies around misconduct can help to reduce the kinds of expensive lessons that were seen to arise in Willis.

Can I Keep the Identity of the Complainant Confidential?

- Tuesday, December 23, 2014
Can I Keep the Identity of the Complainant Confidential?

When conducting an investigation into a workplace complaint, a number of variables need to be carefully managed. It is a given that once staff become aware of the investigation, reactions will vary widely. Be prepared for emotional responses to both the alleged incident, and the complaint itself. Further, bear in mind that alleged wrongdoers sometimes not only show hostility during investigations – they might in fact demand that you provide the identity of the complainant. In defence of their position, such participants see it as their right to know immediately who it was that complained. Yet what if the complainant has firmly requested that their identity remain confidential? In such awkward circumstances, you must of course maintain a professional detachment. Whether or not you can or should reveal the identity of the complainant is not a simple matter. We examine some of this complexity. 

Policies and promises

It is actually not unusual for a complainant to request that their identity be kept confidential. Before making any hasty promises to that effect, it is important to consider the legal background. Even if you and the employer make every effort to maintain confidentiality, it is quite possible that the complainant’s identity can still be revealed under Freedom of Information (sometimes Right to Information) legislation. It would be advisable to let the complainant know that this is a possibility regardless of your decision. 

Blowing the whistle
It’s important to note that in contrast to any FOI accessibility, state and federal whistleblower protection laws will safeguard the complainant’s identity in certain circumstances. This will most often be necessary where the complaint is connected with issues of far-reaching corruption, ethical breaches, or official misconduct. In fact, a failure to protect whistleblowers in such cases can be classed as an offence itself. In either case – FOI or whistleblower issues – the employer hopefully also has well-drafted policies explaining to staff the processes involved in complaint investigations, including the parameters around confidentiality. If this is not the case, you have a duty to carefully examine the complainant’s request for confidentiality before making a call one way or another. 

Gauging safety and sensitivity

In certain instances, it will not be fair or warranted to promise confidentiality regarding the complainant’s identity. And it might in fact lead to tainted findings if the accused party is not given a chance to fully defend themselves against the complaint made. If a court later determines that certain findings were made without sufficient attention to procedural fairness, then this evidence could be given minimal weight, or even dismissed. 

As the principle in Briginshaw sets out, in more serious cases, the balance of probabilities can only be met utilising high-quality, untainted evidence. For this reason, confidentiality undertakings should be given only after careful consideration. Yet sometimes the need to maintain confidentiality regarding the complainant’s identity will be entirely obvious and necessary. Where threats, safety and/or mental health issues form part of the equation for example, confidentiality might well be non-negotiable. By involving the employer in your preliminary information gathering, you will be able to gauge any particular sensitivity within the workplace.   

A question of motivations 

There is always the possibility that a complainant has brought the complaint simply on vexatious or false grounds. Workplaces can of course be hotbeds of dislike and grudges, where comments and actions can be misconstrued, distorted through rumour, or even entirely fabricated. Carefully assess if the complainant’s request for anonymity could in any way be impacted by these factors. Your professional judgement will then be required to assess the merit of the request, taking account of all the circumstances.

Tread with care
If a complainant requests that their identity remain confidential, ask yourself – what do the employer’s policies indicate? Have you explained potential FOI issues? Are there particular issues around safety and/or sensitivity? And could a vexatious complaint form part of this investigative equation? With good background information from the employer and an overall strategy of investigative transparency – you can face the anonymity request with a clear plan in place.

Want to Audio Record Interviews But Not Sure How?

- Tuesday, December 16, 2014
audio recording
Want to Audio Record Interviews But Not Sure How?

When you are called upon to investigate a workplace issue, the desire to get a clear and accurate picture of the problem is understandably strong. Recording the interviews seems like a good idea – you’ll have a word-for-word transcript and be able to concentrate more on the conversation. Yet it is important to consider a number of factors. Firstly – what are the legal issues around audio recording, secrecy and permission? Secondly, what sort of introduction is suitable to an investigative audio recording? And in terms of the resulting transcript, which kinds of requests are likely to arise? Recalling that procedural fairness must be at the heart of all workplace investigations, it certainly pays to do your homework before audio recording an interview.

Permission issues 

In many cases, interviewees will be quite happy to give permission for you to record the conversation. Others might be fairly reluctant or actually refuse to give recording permission at all. Knowing these variations, it might be tempting to simply record your discussions without permission. This is of course quite possible technologically. 

But is it legal? In Australia, the laws on improper and/or unlawful surveillance differ across jurisdictions, and it is important to understand the stance taken in your state or territory. In many cases, permission will be implied if the person is told of the recording and does not overtly object. Yet if permission is refused and a recording is nevertheless made – or is made in secret without any discussion – the material will almost certainly have been obtained unlawfully. Such recordings may nevertheless still be admissible in the federal jurisdiction (including the FWC) in accordance with the Evidence Act 1995 Cth. Admissibility will hinge upon elements such as whether or not the conversation was ‘private’, the probative value of the evidence, and the level of impropriety involved in the secret recording. 

Important introductions 

Once the tape is rolling (or device is capturing!) your first crucial task is to make introductions that are clear, welcoming and comprehensive. Everybody in the room should be given the opportunity to return your greeting, and state their name and work title for the record. You can also give a brief run-down of the purpose of the interview, giving participants a chance to ask any questions about the process. 

As well as helping everybody to find their bearings, such general chat can serve to ease everybody into the interview as they work out who’s who. And a further benefit will be the accurate identification of voices by the person typing the transcript. In the bid for accuracy, it is vital that the transcript represents a true record of ‘who said what’. If a subsequent transcript of the conversation reveals that the interviewee was uncertain, confused or pressured in any way, then the probative value of the material in future proceedings might be markedly reduced. Providing open, informative and clear introductions will help to ensure that procedural fairness is evident at all times within the workplace interview. 

Transcript uses 

After the workplace interview, the audio recording will be converted to a typed transcription. Request that the interviewee read and sign the transcript to confirm accuracy. But what if a person refuses to sign? Such a situation can arise for a number of reasons, not least of which can be that they are upset and shaken at having talked through the workplace issues. Yet, if we think logically – the entire discussion is there in aural form and can be accessed at future times, such as in court. This is why a transcript is in many ways superior to a statement from the interviewer constructed from written notes; arguments can be made that the interviewee was misrepresented in cases where only notes were taken. 

Be aware also that an interviewee might ask for a copy of the transcript. It is best to explain that, because the employer is coordinating the investigation, it is up to them to decide on what investigation materials might be given out. Importantly, privacy issues will be relevant. For example if a worker goes back to the office waving a transcript with people and incidents named therein, the investigation’s overall viability could be cast in doubt. 

Obtaining an audio recording of a workplace interview is an excellent idea. Accuracy will generally be high, assisting clarity throughout the investigation and beyond. Keep in mind best practice for recording permissions, introductions and transcript uses though – consideration of these variables will help to ensure that the overall quality of your interview is greatly enhanced.

Confronting Misconduct: Insights from the Public Service

- Tuesday, December 09, 2014
Confronting Misconduct: Insights from the Public Service

The recent release of the 2013-14 Australian Public Service (APS) State of the Service report provides some interesting kernels of data around workplace misconduct, including corruption and bullying. In particular, the report paints quite a discomforting picture of misconduct being on the increase – despite everything that the APS strives for via its statutory code of conduct, values statement and codified employment principles. 

Employers beyond the public sector can take valuable lessons from the report regarding the insidious nature of workplace misconduct. Beyond issues of performance and discipline, activities such as bullying and corrupt practices can have significant impacts on workplace health, staff morale – and the bottom line. 

Workplace trends 

So what elements of workplace misconduct does the vast APS face? And is this just a government thing – or should all sectors actually take heed of these trends around misconduct? The key issues raised in Appendix 6 of the report include: 

  • Misconduct accounts for 1 in 3 queries brought to the APS Ethics Advisory Service. 
  • Finalised code of conduct investigations rose in the current reporting year by 15%, from 516 to 592 investigations.
  • Substantiated breaches also rose in the same period from 75% to 81%, with a broader 20% increase since 2011. 
  • Interestingly within reporting trends, the majority of people in the workplace reported misconduct through clearly established mechanisms, such as an ethics unit or designated person in HR. In other circumstances, they sought outside help, such as from helplines or police.   
  • A disturbing 17% of employees experienced harassment or bullying, with a further 21% witnessing these behaviours in the workplace. 
  • The number of victims feeling able to report such misconduct fell from 43% to 37%. As some consolation, the reporting by staff who witnessed the harassment or bullying of others rose over the year. 

Sizing up the problem

There are certainly some sobering numbers there: misconduct and investigations are up, as are substantiated breaches. Yet victims don’t appear to be confident in reporting breaches. It is noble – yet unfortunate – that a victim’s colleagues will often need to report misdeeds. One glimmer of hope from the report is that employees will tend to use clear mechanisms for reporting misconduct, if these are provided. 

This is important to keep in mind; make the path clear and misconduct will be addressed before problems grow and/ or become entrenched. 

Communicate the basics 

So what do we take from these figures? Firstly, it is crucial to develop good communication between management, HR and other staff about the rights and responsibilities of everyone in the workplace. This includes clear induction training on misconduct, intranet updates and seminars, and providing informal opportunities in teams to discuss both misconduct and reporting paths. And it is imperative to explain the meaning of specific terms such as misconduct, corruption and bullying to all employees – don’t expect their knowledge to be complete, simply as a result of common-sense. Trainers are regularly stunned by the divergence of opinion about what is and is not appropriate behaviour in the workplace! 

Provide a clear reporting path 

In terms of the best mechanisms for report misconduct and bullying – just remember one word: accessible. Thinking logically, if a stressed worker in in danger of sustaining a workplace psychological injury due to bullying… or the employer’s profits are fast dwindling through misappropriation… the last thing a victim or witness needs is a complex reporting path. And in the longer term, the health, safety, performance and productivity of any business will improve when misconduct has been headed off at the pass. Forget dense forms and lengthy chains of discussion – have one or two simple methods that staff can utilise when reporting. Above all, encourage and commend the actions of any staff member who comes forward. Regardless of outcome, it is important to have issues of potential misconduct brought up in a timely way. 

Lessons to learn 

The mammoth APS is an employer that necessarily keeps an eye on the scourge of workplace misconduct. As evidenced in the State of the Service report, misconduct is disappointingly on the rise. 

Employers of all sizes can certainly take lessons from these growing numbers, ensuring that processes and training to counter misconduct are appropriately designed and embedded across the business.

Should You PUKE? Deep Listening in Workplace Interviews

- Tuesday, December 02, 2014
Deep Listening
Should You PUKE? Deep Listening in Workplace Interviews

To the untrained, the skills needed to carry out effective interviews in a workplace investigation are simple – find a room, ask questions, then get the answers. Yet as any professional workplace investigator knows, the quantity and quality of information that you glean in any investigative interview can vary significantly depending upon the techniques that are used. The field of interview techniques is vast, and the excellent ‘free recall’ approach is just one of the methods that can be particularly useful to workplace investigators. Forensic psychologist Dr Becky Milne from the University of Portsmouth coined the term PUKE – Pure Unadulterated Knowledge Extraction – to highlight the essence of the free recall approach. As the terminology infers, this is a method of investigative interviewing which in many ways requires little or no questioning from the workplace investigator. Sound odd? Read on to learn more about the benefits of silence in the interview room. 

Setting the stage
An effective interview based upon PUKE – or free recall – requires an incredible amount of preparation beforehand. Milne herself states that the end goal of such a technique is essentially the no-question interview, where a witness simply tells their story. To set the scene for such hands-off elicitation of evidence, first ensure that the witness is comfortable and unlikely to be distracted. It’s amazing how thirst, no tissues, nerves or nature’s call can break the flow of a free recall interview setting! Adopt a demeanour that is professional but not overly formal, and explain the purpose for the interview. The information that you provide at this point can be crucial to the extraction of high-quality data and evidence throughout the substance of the interview. For example, summarise your knowledge to date, such as: “From what I understand, there seems to have been some sort of altercation in the lunchroom on Friday.” Then try to convey that there is no rush, and that you are looking forward to hearing their version of events. 

Total recall 
Humans like to talk. And professionals like to talk a lot! So the art of free recall or PUKE interviewing involves the workplace investigator actively redirecting that normal talkative energy into deep listening. Having set the scene, you can now take a couple of tacks. One is to keep your body language open and simply ask: “Can you tell me what you recall about the event?” A prequel to this is to first take the witness through a relaxation task, along the lines of “Close your eyes… picture the lunchroom in your mind. See all the details of the room. Recall last Friday, when you went in there. Now let me know what you experienced next” or similar. Once your witness is talking, there are a few excellent PUKE techniques to keep the flow going. Make sure that you maintain open body language as far as possible. You may be taking notes if a recording is not underway  – but do try to maintain non-confrontational eye contact. Interestingly, adult humans can feel uncomfortable simply talking without any prompting questions. Yet the more you can keep the witnesses narrative going without interruption, the better. Remember you want ‘Pure Unadulterated Knowledge Extraction’. Too many inquisitive questions can be just the adulteration that you don’t need! Try some encouraging gestures and nodding if the witness seems to have stalled. A simple “Yes?” or “And then…?” can help to move things along. 

Should you try PUKE-ing? 
Absolutely. In fact, adopting a well-constructed free recall interview can be the difference between a useful and a flawed workplace investigation report. Should the matter later go to court, the standard in Briginshaw comes fully into play. That is, the existence of enough low-quality evidence can mean that the balance of probabilities will not be met in some cases. Free recall interviewing reduces the chances of procedural fairness being hampered, in that the PUKEd information flows freely from the witness. It is so easy to have the appearance of bias and pre-judgement enter unwittingly into questioning, particularly if the witness has clammed up, or you have allowed your frustration to show. This might just be via a leading question: “At what time did you hit David in the lunch room?” Or, it might be through an inadvertent show of bias: “Well, three other workers seem to think that’s a bit silly – you?” There certainly is an art to conducting an investigative interview in the workplace context. By applying skills such as the free recall PUKE approach, the quality and consistency of workplace investigation interviews and reports can be vastly elevated.

Obtain cognitive interview strategies and learn how to PUKE by booking a place on one of our short courses. 2015 dates for our Conducting Workplace Investigations – Advanced and Investigative Interviewing courses are available now. 

Considering Cognitive Interviewing or Conversation Management?

- Tuesday, November 25, 2014
interview techniques
Considering Cognitive Interviewing or Conversation Management?

In carrying out workplace investigations, even the most seasoned investigators can grapple with selecting the right questioning techniques to use in particular circumstances. Choices can depend upon such variables as the nature of the alleged workplace problem, the character and cognitive make-up of each witness, and the amount of background information available to the investigator. In this article, we take a look at two valuable interviewing techniques: cognitive interviewing and conversation management. It can be demonstrated that proper use of these techniques will markedly heighten the quality and accuracy of the information collected. And such an outcome of course has significant repercussions for the standard of evidence that can be effectively incorporated into future actions.  

Cognitive interviewing – a massage for the memory 

In the early 1990s, psychologists Fisher and Giselman began to assist law enforcement officers to more effectively interview witnesses. Prior to this, the standard interview technique in police work was producing mixed results. It seemed that a fairly rigid investigation plan with conversation killers such as closed-ended queries and leading questions tended to taint the information gleaned. Utilising a number of techniques from psychological practice, the cognitive interviewing technique began to be introduced during witness questioning. Central to this was the desire to spark the memory in a way that would generate the most detailed and accurate data. 

Reinstating the context and enabling visualisation techniques can assist witnesses to recall past events. Simple strategies such as allowing the witness to close their eyes, draw a sketch, or think about their emotional state at the time the events occurred all aid memory recall. “Tell me everything that happened” may seem basic, but unless we explain the conversational rules at the start of an interview, we can’t expect a witness to automatically give us this information. Asking for the witness to go backwards in time also has the proven ability to jog the memory. Consciously going through key events in reverse order can have a sharpening effect on the memory, as the witness must set aside any rote story and concentrate more closely upon the details. Cognitive interviewing is all about finding open and creative ways to generate better recall. 

Conversation management – the careful testing of doubts 

One challenge for any workplace investigator is when open-ended techniques such as cognitive interviewing don’t appear to be working on a witness. Sometimes, despite utilising all available resources to heighten recall, hardly any useful information will be obtained. In such instances, conversation management can prove an effective way to reduce blocks and gaps that might occur in the interview. The existence of these frustrations – known as resistance – can tempt the workplace investigator to simply presume guilt. Surely, if a witness keeps resisting certain questions or appears to have gaps and inconsistencies during the interview, then they have something to hide? Or must be somehow dodgy? 

The danger in jumping to such conclusions is that the quality of the evidence drawn from the investigation might be irrevocably tainted by presumptive questioning. And the Briginshaw principle reminds us that evidentiary quality will be a key determinant of whether the balance of probabilities has been met. The beauty of the conversation management method is that it can assist in shedding light upon any doubts, in a way that is fair and respectful of the witness. The model combines open-ended questions with a framework for probing detail, enabling thorough examination of the account. It is important to bear in mind that gaps, oddities and behaviour changes might in fact be related to something other than deception, such as cultural differences, or trauma related to the incident. Conversation management provides research-backed techniques for getting to the bottom of any unclear or uncertain material.  

Widening our investigative toolkit

These two techniques – cognitive interviewing and conversation management – provide two different yet equally valuable tools for investigators to draw upon when conducting a workplace investigation. With no two humans alike, we will inevitably hit a brick wall or two when conducting our interviews in the workplace. Yet it pays to have a clear investigation plan for dealing with such eventualities, rather than winging it. If a witness becomes visibly confused, flustered or appears extremely uncomfortable in the process, then pushing on regardless might elicit low-quality material. With these and other proven questioning techniques in our investigative toolkit, we can certainly feel better equipped to delve into the vagaries of witness accounts. 

 WISE Workplace provides investigative interview training for HR managers and workplace investigators. Dates for 2015 are out now.