How to Work Effectively With External Investigators

- Tuesday, July 08, 2014

How to Work Effectively With External Investigators

If you are dealing with an employee dispute, suspected misconduct or allegations of harassment and bullying in many cases it may be necessary to hire an external investigator. Utilising the services of an unbiased third party means that you can be sure your investigation will be free from personal conflict and the person in charge of the investigation will be truly impartial.

Employee or management conflicts can be devastating to any organisation and they can end up costing a lot of money in absenteeism and lost productivity as well as creating a stressful environment for co-workers. Many employee disputes and allegations of misconduct come with legal implications so it’s important that any investigations are conducted ethically and lawfully by a skilled professional. If not handled properly, any resolution could be overturned or lead to a lengthy and costly legal battle.

It is in everybody’s best interests to get the best possible outcome when working with an external investigator and there are a few things you can do to help ensure a quick and accurate resolution of the situation. Here are some tips for working effectively with external investigators, for management and employees.

Before the investigation starts

It’s important that everyone is clear about the scope of the investigation, the terms and whether or not there are any conflicts of interest or other issues which could affect the investigator’s ability to carry out their job in an unbiased manner. Make sure it is clear what assistance and support will be required from the agency or organisation including access to administrative records, availability of employees for interview and any other requirements.

Knowing what to expect on both sides will help alleviate stress and misunderstanding and make the process go a lot more smoothly. Although not everything can be predicted, the investigator will probably have some idea how they plan to go about the investigation and it is important that this is communicated to the organisation so that management and the employees involved understand what is likely to happen.

Once the investigation is underway

Good communication is essential at all stages of an investigation and a set of deliverables should be agreed on by both sides so that expectations are clear. It’s a good idea for the investigator and a representative of the agency they are investigating to touch base regularly to ensure any issues are dealt with and the investigation is proceeding as required.

Make sure that the investigator you use provides a full written report of their findings including all the evidence, how it was obtained and the reasoning process involved in reaching their final conclusion. This is an essential part of the process and can protect you in the future if there is a dispute over the final outcome by giving you a written record of exactly what was decided and what evidence was used.

Generally an investigator doesn’t make the final decision but they may make recommendations. Make sure that the person who is in charge of making a final decision, particularly if it involves termination of employment, is aware of the legal and procedural implications involved so as to reduce the chance of further legal action or a decision being overturned.

The more you co-operate and support an external investigator the more likely it is that you will have a quick resolution and be able to put the matter behind you and move on. At Wise Workplace we have experience working with a number of different agencies and investigating a wide range of complaints. Talk to us to find out how we can help you.

How Do I Know if I Need an External Investigator?

- Tuesday, July 01, 2014

How Do I Know if I Need an External Investigator?

Knowing when to hire an external investigator and when to undertake an internal investigation can be tricky. If you have an employee or group of employees who have been accused of misconduct or suspect that bullying or harassment is taking place in your organisation when is it appropriate to look into the matter yourself and when should you bring in an outside professional?

Whatever you choose to do it’s important that the outcome is fair and reasonable and that the investigation and its findings are compliant with the relevant employment law. If the investigation results in an employee being terminated you could find yourself facing legal action so your ultimate conclusion needs to be able to stand up in court.

There are a number of factors to consider when deciding whether to outsource your workplace investigation or conduct it in-house. Here are a few questions that can help you make the best decision.

Are current HR staff up to date with all relevant employment legislation?

The cornerstone of any workplace investigation needs to come down to whether or not there has been an infringement of the law, particularly in cases of bullying or harassment. Employment legislation is an ever changing field and HR staff in a busy organisation may not have time to keep up to date with every change as it occurs. Unfortunately a lack of updated understanding of the law could lead to significant implications if a decision is made. If an employee is terminated on the findings from an investigation and it later turns out that the termination was unlawful your organisation could face serious legal consequences.

Can internal staff perform an unbiased investigation?

Having personal knowledge of the parties involved can make it difficult for even the most professional of HR staff to conduct a thoroughly impartial investigation. Current employees may not feel comfortable talking openly to people they know, especially if they feel that there is already existing prejudice against them. In a larger organisation this may not be as big an issue as a small business where everyone knows each other, but it is worth taking into consideration when making a decision. Employees who feel they haven’t been treated fairly are more likely to complain or challenge the outcome and this could lead to further problems in the future.

How will an internal investigation be viewed by employees and the public?

If the allegations of misconduct and bullying involve senior management an internal investigation, especially if it finds in the senior employee’s favour, could be seen by employees and the public as biased and unfair. In some cases it could be beneficial to ensure that there are no grounds for employees to claim unjust treatment or have grounds to claim a cover up by hiring someone external who can be seen to be completely impartial. This can be particularly useful in the case of public sector or large organisations whose reputation could be damaged by accusations of partiality.

Deciding whether to use an external investigator or conduct an internal investigation will depend on a number of factors along with the scale and severity of the alleged harassment or misconduct. It’s essential that whatever you choose, your investigation is conducted in a professional and unbiased manner and any resulting action is compliant with employment legislation or you could find yourself facing further issues in the future.

Not sure whether or not you need an external investigator? Give us a call today for a confidential, no obligation discussion of your situation.

What are the Steps Involved in An External Investigation

- Thursday, April 10, 2014

 

Workplace misconduct, bullying and harassment are surprisingly common among Australian organisations. Although many problems can be managed and resolved through in house human resources and management, sometimes hiring an external investigator is the best option.

A good workplace investigation follows a series of steps to ensure a fair outcome for everyone and an unbiased investigation. Although every investigation is slightly different here is a brief outline of the steps that are usually involved in the investigation process:

1. Define the scope and Terms of Reference
Before engaging an external investigator or with the assistance of the investigator, clients must determine what is wrong with the behaviour that has been reported – define the scope of the investigation and prepare initial allegations or issues to be investigated. Clearly articulating the scope and allegations made in writing to the investigator is a high determinant of success for the investigation and welfare of staff involved.
2. Appoint an external investigator
It’s important to take time to find the right external investigator. A poorly undertaken investigation could be a waste of time and money and could leave you liable for additional costs in the long term, especially if a dissatisfied employee decides to take further action against the outcome or the way the investigation was conducted. Make sure you find a professional investigator with a Private Investigator licence. The licencing process ensures minimum qualifications/experience, and a code of practice. After establishing the correct licence find an investigator with a good track record, solid experience and understanding of the law, particularly in the specific area you are investigating.
3. Analyse the information that’s available
The first step an external investigator should take is to thoroughly examine the information that’s available. In cases of harassment this means looking at all the records and any evidence on either side and gaining a general understanding of the circumstances, workplace policies and any issues that could have led up to the alleged bullying or misconduct. Once the investigator has an understanding of the situation he or she can make an informed decision as to how to proceed.
4. Interviewing the complainant and witnesses
After the investigator has discussed the situation in depth with the client, the next step is to interview the complainant, any witnesses to gather further information. Interviews should be conducted in a private location, recorded and allowing the interviewees to have a support person present if they wish. Copies of records must be provided to individuals to check and sign. In many investigations the initial interviews may reveal new or different information or additional leads. If this is the case, follow up interviews may be required to verify or further investigate new allegations or information.
5. Examination of records
The investigator should be given access to all relevant documents, emails and available digital data to corroborate statements made by witnesses. To ensure impartiality, the examination of disciplinary records should only be undertaken if relevant to the facts at issue. The final decision maker can use prior disciplinary records to determine an appropriate penalty but this should not be considered at the investigation stage.
6. Putting the allegations to the respondent
Only when all the evidence has been gathered is it appropriate to speak to the respondent. Speaking to the respondent last ensures that all relevant allegations and evidence can be put to the respondent for a full and fair response. It is a requirement to meet the obligations under procedural fairness to provide the respondent the opportunity to respond to all allegations this should be done in an environment that is supportive. Audio record this interview wherever possible and make sure the respondent gets a copy to sign. Respondents should always be given the opportunity to have a support person present to give support but not advocate on their behalf. It is fair to provide an opportunity for a written response to be provided also.
7. Analysis and report
Once all the information has been obtained, the investigator will analyse the information and produce a report detailing their findings. The report should detail the investigator’s findings, whether the allegations of misconduct or bullying can be upheld and show how they reached their conclusion. They may also make recommendations for further action by management.
8. Notify parties involved
The complainant and the respondent should be notified of the outcome of the investigation and what further steps are required on both sides. It’s important that any workplace investigation follows a logical process and that findings are carefully detailed to avoid further legal action and ensure a fair outcome. A well-managed investigation can help resolve the situation and lets everyone move on as quickly as possible. Contact us today if you have any questions about the investigation process or to find an experienced, professional external investigator.

Public Service Misconduct: Hiring an External Investigator

- Tuesday, March 11, 2014

Allegations of misconduct can have a serious effect on employees and your agency’s public image. All employees who work for the Australian Public Service (APS) are required to abide by the APS code of conduct. If it is alleged that an employee has breached the terms of the APS code of conduct the agency they work for can either choose to investigate the matter themselves through their in house human resources department or they can engage the services of an external investigator.

Using an external investigator has a number of advantages but it’s important to be aware of some of potential pitfalls too. Here is a brief guide to help you select the best external investigator for your circumstances and avoid the repercussions of making the wrong choice.

The benefits of using an external investigator
In some circumstances it is simply more appropriate to opt for an external investigator over using in house personnel to investigate allegations of misconduct. These circumstances can include:

  • Where the agency is small and doesn’t have sufficient in house resources available to thoroughly investigate the matter.
  • Investigations requiring specialist expertise is required which can’t be supplied through in house staff.
  • When it’s unlikely that current employees of the agency will be able to conduct an unbiased or independent investigation.
  • Situations where there is a need for the agency to use a third party to maintain public confidence in the outcome of an investigation.

There are plenty of benefits to using an external investigator and many public service agencies choose to bring in a third party when they are investigating allegations of misconduct.

What should you look for in an investigator?
When looking for an external investigator it’s important to find the right individual or team, particularly if the allegations are serious or require specialist knowledge and experience. Here are some of the skills and attributes that make a good investigator:

  • Familiarity with the employment framework of the public service, including the Public Service Act and other relevant legislation.
  • A strong understanding of the Fair Work Act 2009 and its requirements.
  • Good interpersonal and verbal communication skills and the ability to put people at ease when conducting interviews.
  • Strong written communication skills and experience producing written reports which clearly present the evidence on both sides and discuss the reasoning process involved in any decisions.
  • Sound analytical skills and good judgement.
  • Awareness of the elements of administrative decision making including procedures for weighing up evidence and the need for a fair and balanced process.
  • Experience conducting administrative investigations and weighing conflicting evidence to find out the truth.

Allegations of misconduct, if proven, can lead to serious consequences for the employees involved and could affect their ability to work in the future as well as having a significant impact on them financially. It’s important that any investigations are conducted in a fair and unbiased manner to ensure that everyone is treated fairly and in accordance with employment law.

What are the risks of hiring the wrong investigator?
When an external investigator lacks the experience or expertise to handle an investigation appropriately it could lead to a decision being challenged in court and ultimately set aside. This can lead to a waste of time and resources for the agency involved and could make it more difficult for them to effectively enforce behavioural and conduct standards for employees in the future.

If you have made the decision to hire an external investigator for your public service agency make sure you choose a firm or individual with the skills and capabilities of carrying out a thorough unbiased investigation which complies with legal requirements.

WISE Workplace is on the Australian Taxation Office panel and has a long history of providing investigation services to Commonwealth agencies. All our investigators hold private security licenses and a minimum of Certificate IV qualifications in government investigations. Wise Workplace also provides nationally recognized training in government investigations, and is recognized as a national expert in investigating allegations of misconduct, bullying and harassment.

Contact us today to find out how we can help you with your investigation. The more rapidly and effectively you can deal with allegations of misconduct in the workplace, the sooner your organisation can move forward.
 

Investigator bias : How to avoid the mistakes of Qantas

- Tuesday, February 25, 2014

 

Keiko Adachi v Qantas Airways Limited 12 Feb 2014. [2014] FWC 518.

If you don’t want your investigation failing because you’ve stumbled into the sticky trap of “investigator bias”, take note of these lessons from Qantas in a ruling by the Fair Work Commission early this month. 

The FWC found in favour of the aggrieved stewardess, Keiko Adachi and declared that her dismissal by Qantas for gross misconduct was “harsh, unjust and unreasonable”.

An apparently simple altercation between Ms Adachi and her line manager over her “fitness to fly”, led to her dismissal for gross misconduct, just weeks before she would obtain her award for 25 years’ service.

Prior to the incident, which took place in February 2013, Ms Adachi had made complaints of bullying about her manager (the details were not included in the judgment) and had signed off sick for work-related stress.

On her return to work, her doctor issued a medical certificate declaring she was fit for flying duties, but not fit for ground duties. When Ms Adachi reported for a flight on the 17 February 2013, she presented the medical certificate and said she was “fit to fly”. However the certificate stated that she was only fit for “suitable duties” and not “full duties”, which is a stipulation of the Qantas “return to work” policy.  

Her manager, John El Khoury, said she could not fly that night, and would need to get a new certificate. Ms Adachi asked for the certificate back, but her request was refused. So Adachi took the certificate off the table and in the ensuing tussle between her and her manager, the certificate was ripped and scrunched.

Immediately afterwards, Ms Adachi reported the incident to the police, while the manager reported it to his supervisor. Qantas appointed a more senior manager to investigate the complaint lodged by Mr El Khoury. He found that Ms Adachi’s conduct had breached the Qantas code and warranted her dismissal.

The FWC criticised the investigation, stating it was “flawed” because the investigator had a close working relationship with Mr El Khoury and was unable to view his account of the incident as anything other than highly credible.

As you would expect, the versions provided by the two key participants were divergent; both admitted to a tussle over the certificate but disagreed who initiated it and who was responsible.

The investigator needed further evidence provided by other witnesses to corroborate events.

The first witness stated in an email that he saw the tussle and supported the complaint of Mr El Khoury.  But when the gravity of the situation was explained, he changed his evidence, stating he had not seen or heard what he initially claimed.

The investigator then sought evidence from another 12 witnesses, none of whom could provide any evidence that supported Mr El Khoury’s version. Despite this, the investigator showed a clear preference for Mr El Khoury’s evidence, discounting the evidence of the retracted witness and the other 12 employees.

This situation is commonly referred to as “investigator bias” .

So what can we learn from this case?  If you are an internal investigator; how do you stop yourself from forming a view based on your knowledge or opinion of one of the witnesses?

The answer is that it is very hard. In many institutions and businesses, internal investigators have offices in separate locations in company headquarters, and choose not to socialise extensively with the rest of the employees they are tasked to oversee.

Secondly, it is not necessary to interview all witnesses, but it is vital that the investigator canvass a fair distribution of witnesses to provide him/ her with a rounded view of events.

Despite the need for investigations to be conducted without delay, they should not be rushed – rushing people to respond when they may be on stress-related leave or when the investigator is not fully prepared, can lead to lack of procedural fairness.

When evidence is withdrawn, it is also vital that a full explanation is provided, so that the investigator can assess the real, underlying cause of the retraction; was the witness mistaken or were they targeted?  

Finally, in this case, the investigator failed to identify the complex nature of the IR landscape by contacting a worker whilst on stress leave for bullying,  failing to consider prior complaints of bullying lodged by the worker against her managers, the impact of a WorkCover investigation, and a police investigation and a perceived lack of procedural fairness provided to the respondent.

The case highlights:

  • The risks involved in using untrained internal staff to conduct investigations that may result in dismissal proceedings.  

Organisations should consider using qualified ‘investigators’ to gather and analyse the evidence prior to making decision about disciplinary action.  Where you use an external contractor always check that they have the necessary license and insurance.

How does Briginshaw vs Briginshaw affect the balance of probabilities?

Jill McMahon - Tuesday, October 29, 2013

 

Last week, I looked at how the 1938 divorce case of Briginshaw vs. Briginshaw has significant impact on workplace investigations today. This week, I look at the importance of the balance of probabilities and applying Briginshaw in practice.

The balance of probabilities

Usually the role of an investigator is to determine whether alleged events occurred.  To do this, the investigator needs to determine whether there is a sufficient amount of evidence to prove allegations. The amount of evidence required is known as the “standard of proof”.

The standard of proof differs between civil and criminal matters. Case law has established that in civil matters, the standard is the “balance of probabilities”. This is a lesser standard than the proof required for criminal matters. (Criminal allegations must be proven “beyond reasonable doubt”).

But in Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court cautioned against a purely mechanical comparison of mathematical probabilities and stated at pages 361–2 that the balance of probabilities test requires the tribunal to:

"feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … [A]t common law … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal."

Applying Briginshaw in practice

Subsequent cases have applied the Briginshaw principle when, depending on the nature of the allegation, the strength of the evidence required to meet the standard of proof in civil cases may change. However, the civil standard of proof is always the balance of probabilities (see the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd  (1992) 67 ALJR 170 at 170 – 171).

De Plevitz (2003) categorises the types of cases where the Briginshaw principle has been applied as follows:
1.    where there are allegations of serious misconduct including:

  • sexual abuse of children
  • contested wills where it is alleged that one party who stood to inherit under the will had murdered the deceased person
  • gross medical negligence
  • fraud and
  • serious and willful misconduct warranting dismissal from employment.

2.    where the outcome of the decision may be irreversible including:

  • decisions by mental health tribunals which could result in a loss of personal liberty
  • sterilization decisions
  • determinations of whether a person is Aboriginal and thereby entitled to stand as  a candidate for election to the (now defunct) Regional Council of the Aboriginal and Torres Strait Islander Commission (ATSIC)
  • striking off doctors or lawyers from their professional rolls

De Plevitz notes that the Briginshaw “standard of proof” has been adopted by all Australian anti-discrimination jurisdictions, based on the general belief that any allegation of discrimination or harassment is a “serious matter”.

However she cautions that this approach is not warranted in every discrimination case. When deciding whether to apply Briginshaw, investigators should take the two-step approach of the Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal in the unreported decision of Dutt v Central Coast Area Health Service [2002] NSWADT 133 (6 August 2002) as follows:

  1. Look at the nature of each allegation and asked whether it would have reasonably foreseeable adverse consequences for the livelihood or reputation of the respondent?
  2. If so, then and only then, apply the Briginshaw test.

Where allegations could have serious consequences for the alleged perpetrator, the question of the strength of the evidence required will depend on the facts of each investigation. However, as a rule of thumb for investigators, circumstantial or uncorroborated evidence warrants a closer look at all the facts to determine if there is anything else to substantiate the allegations.

References:
De Plevitz, L., (2003). 'The Briginshaw 'Standard of Proof' in Anti-discrimination law: Pointing with a wavering finger' Melbourn University Law Review 13

Demystifying the balance of probabilities and the rule in Briginshaw

- Tuesday, October 22, 2013


What relevance does the 1938 divorce case Briginshaw versus Briginshaw have, seven decades after the fact, to workplace investigations in the 21st century? Find out in a two part series on WISE Workplace’s blogs.

Briginshaw v Briginshaw comes up a lot where workplace investigations concern matters which could involve criminal or other moral wrong doing; especially in the context of whether the “standard of the evidence” is sufficient, on the balance of probabilities, to substantiate the allegations.

What were the facts of Briginshaw?
Briginshaw was a divorce case in the days before no-fault divorce. The applicant husband sought a divorce and had to prove “grounds”. In this case, he claimed his wife had committed adultery.

But the only evidence the husband could produce was Mrs Briginshaw's admission that she had kissed the co-respondent, and hearsay evidence that the co-respondent had told a friend of Mr Briginshaw's sister in confidence, that he and Mrs Briginshaw had sexual intercourse. The judge refused to grant a divorce, because he was not satisfied “beyond a reasonable doubt” that the wife had committed adultery.

The husband then appealed on the basis, amongst other things, that the judge had maintained wrongly that the husband had to prove his wife's adultery beyond reasonable doubt.  On appeal, the High Court of Australia decision set a precedent about the standard of proof required in civil cases of this nature.

The High Court decision
The High Court held that although the criminal standard of proof did not apply, a finding of adultery would have grave consequences for the wife; “a loss of status” (remember of course that this case was heard in 1938!). So the evidence against her had to be closely scrutinized to ensure it was clear and compelling. On that test, the High Court held that the evidence lacked cogency and they rejected the husband's application.

On the issue of the civil standard of proof, Judge Dixon held (in a frequently cited statement):

Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

In cases such as this, Judge Dixon maintained that that the standard of proof should not be satisfied by “inexact proofs, indefinite testimony, or indirect references.”

Whilst the facts of Briginshaw are somewhat outdated given the introduction of no-fault divorce in 1975, its principles have withstood the test of time and are now enacted in state and federal legislation (see for example section 140(2) of the Evidence Act 1995 (Cth)).

What about workplace investigations and the standard of evidence?
Whilst the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying civil rules of evidence.

This is because workplace investigation findings usually form the basis of subsequent employer decisions concerning the employee(s) under investigation; such as terminating his or her employment contract.

If the employee disputes this decision, he or she may seek to legally challenge it. This type of challenge is a civil action (as opposed to a criminal one) and will ultimately be determined according to the rules of evidence that apply to civil matters.

If investigators use the same rules a court or tribunal, it is likely that the factual findings will be similar and withstand scrutiny. This practice gives employers a sound basis to rely on the investigation findings to make any subsequent decisions.

Check back with Harriet Stacey’s WISE Workplace blog next week to find out about how Briginshaw vs Briginshaw affects the balance of probabilities and some interesting case studies.


Investigation reports – Ten Key Ingredients for successful reports into workplace issues.

- Tuesday, September 10, 2013
 

Whether you contract an external investigator or conduct an investigation yourself, you need to record the process, document the evidence you gathered and articulate the evaluation you applied to make the findings. The Investigation Report needs to provide the decision-maker with all the relevant information to make fast, reliable decisions that won’t lead them into a court room without passing “GO”.

Effective decision making - as a result of any investigation process - depends on the quality of the investigative work and how it’s effectively communicated to the decision maker.

Whilst there is no one, perfect report design that fits all cases, developing a standardised report format can be helpful. This enables you to keep all relevant information in the same spot, so the reader will know where to find things relevant to their decision.

Having a range of two or three different report formats gives you the flexibility to fit most cases into a standardised layout.

Key points to remember as the writer:

  1. Write the report for the purpose intended.  If the report is going to the CEO for a decision on misconduct or to the complainant, you should consider the reader and purpose in every word and sentence you write. If there is likely to be solicitors involved or people who don’t know the business, your background section will need to layout clearly the case’s environment, the nature of people’s roles and any industry-specific background required to understand the facts reported later in the report.
  2. Address the terms of reference; before starting your report, make sure your report will answer the questions asked in that document. Providing a copy of the TOR is critical to understanding the report.
  3. Clearly layout the methodology used to gather the information relied upon in the report. Do this early on, before the analysis of evidence.  At a minimum, this section should layout who you spoke to and who provided which documents. List and annex any electronic evidence or computer analysis and social media searches. 
  4. Write in short sentences, using simple language. If you can say something in five rather than nine words, do it. 
  5. Use easy-to-understand tables to present key findings, where relevant. 
  6. When presenting the evidence and your analysis, consider how the reader will understand this without repetition. If you have clear allegations, consider presenting only evidence relevant to each allegation, together with an analysis. Then lead the reader to the finding which should flow logically from the evidence. 
  7. Make sure you present all relevant evidence in the report. Investigator Bias could lead you to omit certain pieces of evidence to persuade the reader to agree with your finding. This is a sure way to end up in court, with poor decisions based on a deficient report. 
  8. Images and diagrams can communicate more than a thousand words. But make sure it’s clear what they represent, where they were taken, by whom, to ensure the basic chain of evidence is maintained.
  9. Summarising large volumes of digital data can be a challenge; whilst you can provide original digital evidence on external hard drives, some sort of summary document will allow the reader to determine if they need to review that evidence personally.
  10. Don’t neglect to reiterate definitions and legislation if relevant to your report’s findings. Don’t assume that every reader will have an accurate knowledge of the relevant law in each case; a refresher helps everyone and saves them having to look things up independently.

 

Investigation ‘bungled’ in sexual harassment case

- Thursday, August 01, 2013

 

By ALISON PAGE, Legal Counsel -

Earlier this year, the Queensland Civil and Administrative Tribunal determined a sexual harassment case in which the Tribunal member described the employer’s initial investigation as ‘bungled’.*

The Tribunal accepted that the HR department was hard pressed, understaffed and overworked. However, the cautionary tale from this case is that this will be no excuse for failing to conduct proper workplace investigations.

This article considers the employer’s mistakes with its investigation to help you avoid having your workplace dirty laundry aired publicly before courts and tribunals and attracting negative publicity.

Background
The complainant had worked for a number of years running the buffet at a resort in Queensland. The respondent was a chef at the resort.

In early March 2010 the resort was preparing to host a golf tournament. It was a particularly busy time for the buffet and the kitchen.

The inappropriate conduct
The Tribunal found that the respondent sexually harassed the complainant over a period of three days during various incidents including:

  • Sniffing the air in the vicinity of the complainant
  • Commenting that she smelt like “Old Spice”
  • Commenting that he recognized the scent of “Old Spice” as his grandfather gave him some
  • Asking if anyone else could smell “Old Spice”
  • Referring to the complainant as a cougar and making growling noises
  • Leaning close to the complainant when sniffing the air and growling in her ear and around her neck
  • Asking her for one last growl before she left

The Tribunal found that the complainant did not encourage this behaviour. At first she put up with it. She ignored the respondent and tried to get on with her work. She believed she demonstrated her discomfort with the respondent’s remarks. However, the respondent was ‘insensitive to her reaction’. Eventually, the complainant berated and admonished the respondent in front of other work colleagues. She told him that what he was doing was unnatural and disgusting. However, the respondent continued to harass her. Finally, the complainant told the respondent that he was an arsehole and that he should “f-off”.

The Tribunal also found that the respondent’s conduct described above amounted to:

  • sex discrimination because the respondent would not have treated a man the same way;
  • age discrimination because the respondent would not have treated a younger women the same way.

The facts in this matter constituted a clear case on inappropriate workplace behaviour. These complaints should have been dealt with internally without the need for the complainant to seek legal redress.

So what went wrong? And why did this matter end up before the Tribunal?

The investigation
Regrettably, the employer’s inadequate handling of its own investigation led the complainant to the Tribunal and also caused her to add several counts of victimisation to her claim (although ultimately the victimisation claims were not found).

The complainant initially raised her complaint with her supervisor and then the general manager who in turn, asked the HR manager to investigate the matter. Rather than interview the complainant herself, the HR manager gave the supervisor a statutory declaration form for the complainant to complete. When the supervisor handed this to the complainant, she said words to the effect that the HR Manager wanted to know ‘what she expected to achieve by all of this’.

The complainant and the HR manager met to discuss the matter and how it should proceed. The complainant became very upset when the HR manager denied having heard or witnessed the complainant admonishing the respondent, even though she was present at the time. The complainant accused the HR Manager of covering up for the respondent.

About three days later, the HR manager handed the investigation to head office’s Employee Relations and Remuneration manager who on completing the investigation found that the complaints were not substantiated.

In view of the Tribunal’s decision, the investigation findings are surprising. Indeed, WorkCover was also able to conclude ‘without a doubt’ that the events complained of did occur and caused the complainant injury.

So how could the investigation findings be so wrong?

The investigation was flawed in several areas:

  1. The HR manager did not interview the complainant before asking the respondent to prepare a statutory declaration. Rather, she relied on the barest information about the alleged incidents given to her second hand via the resort’s general manager;
  2. The HR manager believed it was not her role to prompt the respondent with full details of the complaint. The complainant’s complete allegations were never fully put to the respondent for his comments. His statutory declaration only covered what he thought was important. 
  3. It appears that on handing over the matter to head office, the HR manager did not hand over all relevant materials, most importantly her interview notes with the respondent.
  4. Not all witnesses who may have overheard interactions between the respondent and the complainant were interviewed and those that were, were not specifically asked whether the matters complained about had happened.

Following a few basic investigation rules and processes would have avoided these errors (particularly rules of procedural fairness).

* McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

WISE Resources

Investigating bullying: six common mistakes interviewers make

- Wednesday, July 03, 2013

The Fair Work Amendment Bill 2013 has just passed in the Senate, and come January 2014 HR managers will have to consider more carefully how their organisation responds to complaints of bullying.

The primary source of information in any complaint is the people involved; the complainant, the accused and co-workers who may have witnessed the events or tried to manage them.  

Developing effective skills on how to ask the right questions for an investigative setting is critical to the accurate determination of bullying complaints.

Interviews conducted by HR managers are often too short to really get to the issues at hand. Managers who have had prior dealings with the complainants often assume they know the events that are involved, but in reality they are just another witness and should be considered just as critically as other witness statements.

An investigative interview is not the same as interviewing for selection or recruitment; critical differences can often trip up even experienced HR professionals.

Planning your investigation and preparing for every interview is critical to success. Too much preparation, however, and you run the risk of conducting an overly-controlled interview, which doesn’t allow for fluid and interactive conversation.

Here are six common pitfalls that HR professionals should avoid to ensure the integrity of the interview and, potentially, the whole investigation:

1. Leading an interviewee to give specific answers where a predetermined decision has already been made, commonly called “confirmation bias”

  • For example, a senior manager conducts their own “quick” investigation after an incident, and says: “You see, what we think really happened is …don’t you agree?” It’s more common than you might think!
2. Using personal characteristics or stereotypes to assess credibility, rather than assessing the reliability of an interviewee’s evidence
  • You’re told the person you’re about to interview is a “bit dodgy”. They’re red-eyed, shifting in their seat and sniffing frequently. You interpret that as a drug habit - and don’t attach much weight to their account – only to find they suffer acute hay-fever and witnessed the whole incident!
3. Failing to ask for specific details of an event:
  • “They yelled and swore at me  in front of everyone in the meeting!” If you don’t ask for specific words, they probably won’t tell you exactly what was said or what happened in detail. What was it that made the person feel intimidated?
4. Asking for irrelevant information
  • It can be easy to let an interview wander off topic and/or confuse an interviewee with irrelevant history between two parties. Sorting out the wheat from the chaff can be challenging, but if you want the evidence sometimes you have to listen to the chaff and sort it out later.
5. Failing to ask questions about inconsistencies in accounts;
  • Be alert to differences within an interviewee’s account. Questioning them about these may reveal critical information. Also note inconsistencies in accounts between interviewees, and use the opportunity of subsequent interviews to clarify.
6. Using affirming comments and gestures during an interview which can be interpreted as bias on the part of the investigator
  • “Thanks for confirming that. That’s great. I’m pleased we can now confirm what happened.” Such comments may persuade an interviewee that you believe their version of events causing issues later if no apparent action is taken.