Getting off on the Right Foot

- Monday, June 15, 2015
How to Cover Essential Rights in an Interview
How to Cover Essential Rights in an Interview

Covering the essential rights of a person in an interview is crucial to procedural fairness. If the interviewee is not made aware of their rights from the outset, anything that they may say during the interview may be viewed as being lacking in procedural fairness and of limited value. Or worse, the interviewee’s statements may be entirely discounted. This may be especially true if there is a subsequent claim for unfair dismissal, a claim of discrimination, or other litigation.

Basic steps

Whether you are interviewing a complainant, an alleged perpetrator, or a witness, the same basic information needs to be given to the interviewee at the beginning of the interview. There is no doubt that an audio recording of an interview is the best way to document what has been said. But before a recording device is switched on, there are a number of steps to be followed. 

If possible, meet at a place that is private so that confidentiality is preserved. If this is not possible, take steps to ensure that other employees can’t see or hear the interview. Explain to the employee the purpose of the meeting. For example, “You have made some allegations about employee X, and I would like to discuss those allegations in detail so that we can investigate the matter.” It is always better to conduct the interview in person, as it gives you a chance to assess how the interviewee reacts to certain questions. 

Regardless of whether the interviewee is the complainant or the alleged perpetrator, they should be told that complaints or incidents of the type that you are investigating are taken seriously, and there may be some potentially serious consequences for the person against whom the allegation is made. Ask the interviewee to give honest responses to all questions. Seek the interviewee’s permission to audio record the interview and tell them that they will be asked to check and sign a transcript of the recording. If the interviewee agrees, commence the audio recording. In some cases, the interviewee may refuse their consent. You should seek advice about this prior to commencing the interview.

After audio recording has commenced

Once you have commenced recording the interview, you need to ensure that you cover various formalities: 

  • State the time and the date. 
  • State that it is a recorded interview between the parties, and identify all parties by getting each person to state their name (this includes any support person and any other witnesses). You must ensure that you clearly identify which person is being interviewed. 
  • Reiterate that a transcript of the recording will be produced and the interviewee will be asked to check it for accuracy. 
  • Inform the interviewee that the interview is not compulsory, that they can have a break at any time, and that they can have a support person present. If they elect not to have a support person present, they can change their mind about this at any time. The interview can be stopped to arrange a support person. 
  • Tell the interviewee that what is said in the interview is confidential, although the person against whom allegations are made will be informed of the allegations so that they can properly respond to them. 
  • If anyone is to be provided with a transcript, for example the human resources manager of the organisation, tell the interviewee that this will happen.
  • To preserve the integrity of the investigation and the confidentiality of all parties, tell the interviewee that they are not to discuss the interview or allegations with anyone, except their union representative or support person. This is a key aspect of the introduction, as confidentiality can make or break an investigation. Once these things have been covered, you are satisfied that the interviewee has understood what you have said, and you have answered any of their questions, you can commence the interview proper. 

Getting introductory matters right in interviews is a key aspect of procedural fairness, and ensuring that the essential rights of the interviewee have been acknowledged and met. It is a crucial foundation element for a successful interview.

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Watch Your Step!

- Tuesday, May 26, 2015
Raising Allegations
Tiptoeing Through the Minefield of Raising Allegations

There’s an awful lot at stake when conducting workplace investigations, and so they need to be handled with care and skill. It really is like tiptoeing through a minefield. One wrong move can cause an explosion of legal consequences that may harm your organisation. One key area of concern is how to raise allegations during an interview that forms part of a workplace investigation.

The need for procedural fairness

When an allegation has been made against an employee and an investigation is required, procedural fairness takes centre stage. This means that the investigation must be conducted in a fair, objective and timely manner and: 

  • All relevant parties must have the opportunity to have their say, especially the person against whom the allegations are made. 
  • The investigator must be impartial – they must not have reached any kind of conclusion about the allegations until the investigation has been completed. 
  • The investigation must be conducted as soon as possible after the allegations have been raised. 

The employee under investigation must also be informed of the investigation process, any possible disciplinary action if the allegations are proved, and must have the opportunity to be represented and/or to seek legal advice.

Key elements to remember

The manner in which the allegations are put to the employee is critical to the procedural fairness of the investigation. If procedural fairness is found to be lacking at this stage, the entire investigation is put at risk. This could have serious consequences down the track if the employer finds themselves having to defend a claim of unfair termination of employment. 

There are some key elements to remember when putting allegations to an employee. 

1. The interviewer must make the employee aware that part of the interview process is that all allegations will be put to the employee. This can be done as part of the introductory matters covered at the beginning of the interview.   

2. The allegations must be put to the employee in objective terms. That is, avoiding language that is emotional and judgmental. For example: "Fred said you punched him hard, and I could tell you knocked the daylights out of him because afterwards he didn’t know what was going on. What have you got to say for yourself?" This is subjective language because the interviewer has made a judgment about the incident. The question could be recast in an objective manner: "Fred said that you punched him. What can you tell me about that?" There is no judgment in this allegation and the question is open, inviting a detailed response from the interviewee. 

3. Give as much detail as possible in the allegations for example date, time and location. 

4. Cite any policies or standards that are breached by the alleged conduct. 

5. If there is more than one allegation, put each allegation to the employee one at a time and invite the employee to respond to the allegation before moving on to the next. 

Learning from past mistakes with case law
A leading case in this area is the Federal Court decision of Lohse v Arthur, in which the court found that the employee had not been informed of all the allegations against him, and that the independent workplace investigator prejudged the matter even before the allegations had been put to the employee. In this case, initially some allegations were put to the employee but after other witnesses were interviewed, more allegations arose and the investigator did not put them to the employee. The court held that procedural fairness was a fairly flexible concept, so it was only fair that if more allegations came to light, the employee ought to have an opportunity to respond. 

Putting allegations to an employee must be done in a methodical and objective manner. It helps to have them written down so that they can be properly framed and ordered, especially if there is more than one allegation. The key point is to ensure that there is procedural fairness –that the employee has an opportunity to hear and respond to every single allegation and that the investigator does not make any determinations until the investigation is concluded. 


Sex, Lies and Audiotape

- Tuesday, April 28, 2015
Raising challenges in interviews
Versions of Events Differ? Raising Challenges in Interviews

If you are conducting a workplace investigation, no doubt you’re dealing with something unpleasant. All the more so because at some point you will have to conduct an interview with the person against whom allegations have been made.

Allegations have been made, an interview is required

To conduct a proper investigation, you need as much detail as possible about the allegations. For example, if an employee – let’s call her Sarah – alleges that she has been bullied by another employee – let’s call him Michael – one of your first actions in investigating the matter will be to interview Sarah and get as much detail as possible about why she says she has been bullied by Michael. As a matter of procedural fairness, Michael must have an opportunity to respond to the allegations during interview before any determination is made.

Raising challenges in investigative interviews

One of the big issues that can arise in these situations is how to challenge the interviewee. A challenge is necessary when the interviewee denies the allegations or gives a different account of events. Because there is a chance that the interviewee will remain an employee of your organisation after the interview, you need to tread carefully in order to preserve the working relationship. For example, Sarah says that Michael often yelled at her and made her cry. When you interview Michael, you tell him how the interview is to proceed, put the allegations to him, and then ask open questions that will encourage him to provide a narrative of events so you can collect as much information as possible. 

In this case, you ask Michael whether there were any issues in his working relationship with Sarah and any conflict. You might then ask whether he had ever raised his voice with Sarah or had she ever cried in his presence. Michael tells you that he can’t recall a time when he has seen Sarah crying and that he has never yelled at her. You have a direct conflict between the two versions of events. These points are important, as they may tend to prove or disprove Sarah’s allegations. 

 You need to outline to Michael the information that you have gathered on these points. You tell Michael that other staff members have heard him yelling at Sarah and they have seen her crying in meetings. Then you give him an opportunity to respond. You must remain objective during this process – do not say anything that is judgmental (for example, “You shouldn’t have done that …”) or that indicates that you have determined the matter one way or another. Once you have given Michael the opportunity to respond to your questions, it is essential to repeat back to Michael what he has just told you. This can be paraphrased or summarised. The point of this is to make sure that you have understood the information and that it is accurate. Ask whether your recount is correct.

The key points in summary

So in summary, the steps for raising challenges in an investigative interview are:

  1. Ask the employee to tell you about the incident. 
  2. Where there are differences between the versions of events, raise them with the employee.
  3. Ask the employee to respond to those comments.
  4. Recap what the employee has just told you, summarising the key points.
  5. Ask the employee whether your summary is accurate.
The need for objectivity and procedural fairness

A properly executed investigative interview should demonstrate objectivity on the part of the interviewer and procedural fairness by putting the detailed allegations to the interviewee and giving them ample opportunity to respond. When these principles are followed, the interviewer has a good chance of collecting detailed information that will allow a proper assessment of the facts and a sound conclusion to be reached. 

Essential Tips for Using Timelines During Interviews

- Tuesday, April 07, 2015
How to Use Timelines in Interviews
How to Use Timelines in Interviews

When conducting an investigative interview in the workplace, finding out exactly ‘who did what when’ can be somewhat easier said than done. Because we are generally interviewing a number of people and collating various documents and/ or items, we need to find ways to accurately collect and reconcile the information on hand. One useful tool to use during the investigative process is a timeline of relevant dates, times and events. During and after each interview with witnesses, a well-constructed chronology has a number of important uses.

Recording time

Prior to commencing witness interviews, set out a clear timeline document that can be populated as you go along. Software for this purpose is available, but a simple spreadsheet can be very effective. The three basic columns will be Event, Time/Date and Source. You can also add an extra column within Time/ Date if events are reported to have occurred over a period of time, for example March 7 to March 20. ‘Source’ might be a witness that you interview, or items such as policies, correspondence or records. Also make sure that you are completely confident with your chosen format – having informed your witness that you will be taking notes, it can be off-putting if you are struggling with your admin tools during the course of the interview.

The comparison of chronologies

In the initial collection of data in your timeline, start with the least controversial data that you have. For example, the incident in question might have occurred at the office Christmas party, which is documented and confirmed as being December 17, 2014. Less clear issues around time and date can then be discussed during interview. Yet it is incredibly important not to utilise leading questions as your timeline develops, and interviews roll along. To illustrate – Witness 1 might have stated that she left the party around 11pm. Witness 2 should not then be asked: “Did you see Witness 1 leave at around 11pm?” 

Potential ways to maintain the integrity of the interview and the timeline data in this instance could be to ask open questions along the lines of: “Can you remember seeing Witness 1 leave the party?” and if affirmative, “What time would that have been, approximately?”

The issue of discrepancies

As your timeline fills out, it is often the case that discrepancies will arise both around facts and times. For the purposes of the overall workplace investigation, some of these might be negligible and/or able to be explained by other factors (such as the possible haziness of time at a Christmas party!) However, other glaring clashes in your timeline will need further investigation or analysis. It is vitally important that you don’t discard out of hand one witness’s version of dates and times as wrong, instead favouring more ‘cogent’ versions of events. In the interests of natural justice, seek a fair and open method to resolve the discrepancy.

Let us say that you have telephone and computer records indicating that Witness 3 was at work on December 17, 2014. Yet Witness 3 states clearly and repeatedly that she did not work from the office that day. Putting the contradictory information from the records to Witness 3 is essential for natural justice. And she might just reveal with a little embarrassment that her work colleagues all share passwords for convenience: Witness 2 prefers Witness 3’s workstation with a view, and always uses her computer and phone while the other is out. With some more digging, this placement of Witness 3 out of the office on the date in question might well be verified.

Time is of the essence

Using a timeline to trace and develop the chronological aspect of your investigation is highly recommended. Without a precise and cross-checked ordering of events, there is a danger that procedural fairness will be hampered during the interview process, as illustrated above. When compiling a professional and accessible investigation report, a quality graphic timeline will prove itself to be a must-have tool.

Picture it! Enhancing memory recall in interviews

- Tuesday, March 17, 2015
reasonable action
Using Sketches to Trigger Memory in Interviews

Professional investigators face one challenging adversary – human memory. The deterioration of memories over time, plus a number of ‘tricks’ that the brain can play when attempting to recall information has often frustrated professionals in the field. The well-known PEACE model of interviewing certainly assists workplace investigators to structure a cogent and methodical interview. Yet how can the quality of retrieved information be enhanced, let alone be guaranteed as factual? These qualitative problems have led to the use of innovative methods for increasing the integrity of memories retrieved from the human mind. We examine one of these methods – the use of sketches to trigger memories in the interviewee. 

Recalling PEACE

In the early 1990s, British psychologists and law enforcement professionals worked together to enhance the investigative interview process. The PEACE model encouraged interviewers to take a methodical approach to interviews, stepped through as follows: 

  • Prepare (Understand the problem, key personnel and the overall investigation plan) 
  • Engage (Establish rapport and a relaxed environment prior to questioning) 
  • Account (Obtain information via a variety of methods) 
  • Closure (Summarise, and invite interviewee to add further material) 
  • Evaluate (Assess the quality and relevance of material in relation to overall plan)    

The PEACE method provides many benefits that were previously unavailable to workplace investigators. Yet some shortcomings have included the length of time needed to complete interviews, as well as some persisting problems with memory quality. With our understanding of human cognitive processes increasing with each decade, some innovative methods for cross-checking memory data have greatly assisted the interviewer’s quest for reliable information. 

The fallible memory

Noting phenomena such as reconstructionist tendencies and possible false memory in humans, researchers of cognitive interviewing practices began to see that unintentional fabrication was a part of many interview scenarios. Memory deteriorates over time, plus the mind tries to fill gaps with embellishments where necessary. How could these difficult aspects of memory be reduced? At the Account phase of PEACE, it was known that using multiple ways of accessing an interviewee’s memory of an event worked well to improve data quality. 

At first, the interviewer might ask for a chronological recount. Next, they would perhaps ask the interviewee to discuss a few events in reverse order. And this could be followed with recall of a mental image of a relevant site, followed by a description given in words. This cross-checking of approaches has proved to be invaluable for the triangulation and more accurate retrieval of memory data. So where might sketches fit in? 

A sketched moment
As part of the arsenal of interview techniques available to the workplace investigator, an interviewee’s visual sketched recall of an incident can prove invaluable. Talking, by itself, will sometimes not be a good fit for particular interviewees. Some have limited English and/or vocabulary resources, leading to a stilted and possibly low-value interview outcome. And even where an interviewee is voluble in their recount, sketching key places or moments can greatly strengthen the utility of memories retrieved. 

The cognitive interview process involving a sketched component might flow as follows: 

The interviewee reveals that something took place in the car park with a manager. A workplace interviewer could ask for a sketch of the carpark, complete with any people and vehicles noted (stick figures and rectangles are fine!) These could be labelled with names, colours, distances, doorways and other relevant features. It is important to maintain open questions and an encouraging tone. 

The sketched result might then jog a memory, raise further questions and/or allow momentum in the interview to continue flowing. It might also confirm or bring into question the interviewee’s earlier responses and allow space for any clarification. A door has opened, and facts can begin to be verified and tested. 

Multiple methods

Sketches obtained during a PEACE-based interview process can add significantly to both the interview itself and the information retrieved. At the stages of Preparation and Engagement, it helps to be prepared with appropriate materials and an idea of which questions might be suited to this method. Let the interviewee know that some sketching might be an option during the interview. With the Account phase, cross-check any sketch with any other memory-retrieval data, such as chronological recount. And at Closure and Evaluation, assess how or if the method assisted in heightening the quality of the overall interview outcomes. Adding sketched memory to your interviewing tool-kit could certainly prove a useful method for gaining the best available information for your report.

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.

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. 

Confidentiality Should Be No Surprise

- Tuesday, September 16, 2014

Confidentiality Should Be No Surprise

In a recent case involving a union delegate acting as a support person and a breach of confidentiality, the Fair Work Commission noted that those acting as support people during workplace disciplinary processes must be clearly informed by the employer about their obligation to maintain confidentiality. This might seem to some to be a fairly common-sense proposition, hardly requiring particular clarification on the part of the employer. That is, if asked to support a colleague during a disciplinary interview, it should be quite obvious that the sensitive subject matter indicates a need for utmost confidentiality. And, if following a disciplinary meeting, the worker’s support person then provides that confidential material to others, it would perhaps be no surprise if the employer took action against the support person.

Making it clear

Yet, in CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (MSS), a support person named Leighton did in fact express such surprise about the confidentiality requirements arising from his involvement in a colleague’s disciplinary interview. Leighton was asked by his co-worker Arnold to attend the interview as Arnold’s support person. After attending the meeting in this capacity, Leighton then proceeded to distribute to colleagues via email certain written information provided in confidence during the disciplinary process. The core issue in the case was actually whether the employer’s decision to issue Leighton with a final written warning was unnecessarily harsh in the circumstances. Before traversing that issue, Commissioner David Gregory was very clear in noting the basic remit of any support person’s obligations in the context of a workplace investigation:

Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times. [at 49]
Clarity of roles

Commissioner Gregory noted that Leighton’s particular role in the workplace required some consideration. He was a union delegate of the CFMEU at the MSS worksite, as well as being actively involved in other union activities across Victoria. The Commissioner stated that this position in the workplace could be seen in two lights. As a delegate, he should have been aware of the requirements flowing from workplace investigations. Yet considering his natural tendency to want to actively assist all workers at the site, his dissemination of this particular information arising from Arnold’s meeting was perhaps understandable.

A duty to inform

Other elements of Leighton’s behaviour and work history were noted, including a formerly unblemished employment record and his apology for the unintended breach. He maintained throughout that he simply did not understand the need for confidentiality in the disciplinary context. On this point, the Commissioner noted that employers are obliged to inform workers clearly and unequivocally of the need to maintain confidentiality about any information that arises in their capacity as a workplace support person. This should occur at a number of junctures during employment, including at the commencement of any workplace investigation in which they are involved. The FWC ordered a lessening of Leighton’s sanction, from final written warning to a written warning.

Support with information

As can be seen from this case, even for those regularly involved in workplace investigations, employers must take care to clearly and unambiguously set out the requirement of confidentiality. It can never be assumed that a person would ‘naturally’ be aware of their obligations in this context. It is common for union delegates to be involved in workplace investigations as support people. Such workers should be reminded that once in the role of support person, they are in attendance purely to support their colleague and to ensure a fair process. Clarify that any impulse to disseminate meeting outcomes for the perceived good of all colleagues, for example, must be resisted. Setting out possible actions to be taken in the case of a breach of confidentiality would also go some way to assisting support people to exercise the discretion required in workplace disciplinary investigations.

Keeping confidence

For employers or HR departments working through a workplace investigation, or simply wanting to enhance employee knowledge of confidentiality requirements, it is essential that the information provided is clear and accurate. To avoid any ‘surprises’ about the need to maintain confidence in investigative processes, get in touch to see how we can assist with your specific requirements. WISE Workplace provides a number of one-day investigation programs. To find out more information about programs tailored to your workplace, contact Harriet Stacey on 1300 580 685.

How to Plan a Workplace Investigation and Why it’s Important

- Tuesday, August 19, 2014

How to Plan a Workplace Investigation and Why it’s Important

If you are conducting either internal or external workplace investigations, it is crucial that you formulate a unique plan of action for each investigative process. No two workplace issues are the same, and a well-structured investigation plan will ensure that you account for the many variables that can arise. Almost certainly, you will be dealing with complex fact scenarios and high emotions within the workplace. Without a well-planned workplace investigation process, such factors can lead to distractions and pitfalls that have the potential to take the investigation off-track. The key factors to build into your investigation plan include:

    • Maintaining procedural fairness during the workplace investigation
    • Planning how to elicit the best evidence
    • Ensuring full coverage of pertinent issues
A good workplace investigation plan guides the process - yet retains sufficient flexibility to accommodate unforeseen developments.
Maintaining procedural fairness e

Legally, procedural fairness is not as simple as ‘being fair’ in our dealings. The very structure of a procedure such as a workplace investigation must also appear fair to an objective bystander. For example, a well-meaning internal investigator might dissuade a worker from bringing a support person because ‘this is just a friendly chat’ about alleged misconduct. It might well transpire that any evidence gathered in this process is tainted by a lack of procedural fairness. A cogent plan for how and when staff and management will be engaged is crucial. If the size or nature of the organisation is such that such fairness cannot be guaranteed, engagement of an external investigator might well be the prudent option. For external investigators, assessing any potential power dynamics, access issues or managerial support for the investigation can all enable the investigator to create a robust and procedurally fair workplace investigation plan, suitable for individual workplaces.

Plan for the best evidence

In workplace investigations, it pays to keep in mind that the best reports and recommendations are built upon sound evidence. The Briginshaw principle reminds us that although there is only one civil standard of proof – the balance of probabilities – the seriousness of the allegations and possible consequences in a particular matter will affect whether available evidence is sufficiently probative to meet that standard. In the heat of the moment in a workplace investigation, it can certainly be difficult to remember your rules of evidence, with a view to possible future actions! Unfortunately with workplace disputes often creating a veritable minefield of evidentiary blunders such as hearsay (‘I heard from Henry that Sheila saw Jane take the printer’), it is best to plan for the location and elicitation of the most probative available evidence in the circumstances. In your investigation plan it helps to go over any written brief or preliminary notes you might have on the physical and social characteristics of the workplace, in order to timetable your evidence-gathering strategy. Are original documents onsite, are private interview rooms available, are any key staff members on leave, do managers encourage support people for interviewees? With a little forward planning, the workplace investigation can extract strong and compelling evidence.

Ensure full coverage of pertinent issues

A workplace investigation should proceed with clear and detailed terms of reference (TOR). The investigator must be clearly informed as to the scope and scale of the investigation, in order to be able to create an investigation plan that most closely meets these parameters. Within that plan, it will be necessary to identify the relevant aspects of employment law or related legislation, in order to gauge the most pressing issues to investigate relevant to the TOR. For example, recent case law regarding exclusionary provisions within anti-discrimination legislation might affect the types of relevant issues to best explore in a given workplace. As well as planning for legal and factual issue coverage, a sound investigation plan will ensure that the workplace investigation does not head off on a tangent. It can take strong professional aptitude to compassionately hear a story, while also limiting interviews to the pertinent issues.

In order to be fair, to collect good evidence, and to cover all of the pertinent issues, a detailed workplace investigation plan is a must-have for all workplace investigators.