Small Business Dismissals 'Need Reasonable Investigation’

Jill McMahon - Wednesday, May 22, 2013

 

 By  Jo Kamira

The Fair Work Commission ordered compensation to an employee dismissed for theft and other misconduct last month in a case that highlights the need for even the smallest of companies to conduct proper investigations before summarily dismissing employees.

In our experience, many small business owners believe they aren’t subject to unfair dismissal laws and don’t have to investigate allegations of misconduct before they terminate someone’s employment.

A ruling in March by the Fair Work Commission – relating to a business that employed just four people - illustrates how this perception is misplaced.

The case involved an employee who was summarily dismissed and handed a letter stating his conduct at work had included “engaging in theft”.

The Small Business Fair Dismissal Code, which applies to businesses that employ 15 or fewer employees, states: “it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.”

The code defines “serious misconduct” as including “theft, fraud, violence and serious breaches of occupational health and safety procedures.”

At issue in last week’s ruling was not whether the employee had stolen from his employer, or even if the employer believed he had done so, but rather whether the employer had “reasonable grounds” for his belief.

In concluding that the dismissal was unfair, Commissioner Ryan said the employer “did not carry out a reasonable investigation” and had only looked at his accounts and jumped to a conclusion. The employer alleged that the employee had ordered cutting wheels and electrodes for himself using his employer’s account.

If the employer had investigated the matter properly, he would have had to interview the other employee in the company who also used the equipment. He hadn’t done that. Moreover, the employer hadn’t even asked the employee about the theft before he was dismissed, or even attempted to locate the cutting discs the employee had ordered.

Whilst the small business code gives an employer the ability to summarily dismiss an employee for theft, with no need to report the theft to the police, this case demonstrates employers should conduct an investigation in order to provide supporting information to show reasonable grounds for their belief.
Click here for the full decision. 

Tips for conducting a simple investigation:

  1. Get the specifics of the complaint and write down the information initially provided to you that gives you your suspicions;
  2. Check the information that is provided to you – ask witnesses and look at documents or check store rooms if it is alleged that property has been stolen;
  3. Document what you do and what you are told;
  4. Provide the accused with an opportunity to give an explanation of what has been alleged  - include specifics and provide a copy in writing if you can;
  5. Be prepared to reconsider your response based on the answers your employee gives you;
  6. Make your final decision when all the information has been gathered and the employee given a chance to explain what happened.

Don’t forget, if the conversation with the employee results in termination/dismissal they should have a support person present.

If you need help with an investigation, WISE Workplace provides a supported investigations service, including advice over the phone.

WISE wins international book award!

- Wednesday, May 08, 2013

 

“Alison and I are thrilled to be a Bronze winner in the Business/Career/Sales category of the IPPY Independent Publisher Awards 2013, getting the recognition for the effort that has gone into the book is very satisfying”. Our book was selected from over 5000 international entries and the award ceremony will be held in New York at the end of May.

Writing Investigative Interviewing: A guide for Workplace Investigators was the brain child of Harriet Stacey,  “After conducting research in the area of investigative interviewing and training numerous police and other industry investigators I felt that there was a lack of advice for workplace investigators on how to conduct effective interviews. The book sought to make the amazing advances that research has made in this area accessible to practitioners and this award indicates that we have done that.”

Alison Page provided essential legal advice and edited the work to create a text that is legally correct, up to date and relevant for all investigators working in the industry.

Recognition should also go to Jill McMahon from Frankie and Boyd who provided excellent design and eye catching graphics for the book.

The Independent Publisher Book Awards were conceived in 1996 as a broad-based, unaffiliated awards program open to all members of the independent publishing industry. The awards are intended to bring increased recognition to the thousands of exemplary independent, university, and self-published titles produced each year, and reward those who exhibit the courage, innovation, and creativity to bring about change in the world of publishing.

Buy our book here...

The respondent interview - Part I: Five (of many) things you need to know

Jill McMahon - Wednesday, April 24, 2013


When an employee is accused of doing something wrong (we call them a respondent in a workplace investigation), they may lose their job or worse, their reputation. Understandably, that can put people on the defensive.

They may engage in a number of strategies to minimise the consequences – from refusing to cooperate, to outright denial and spreading the blame to others. All of that can make the respondent interview a challenge.

Here are just a few pointers to help you start out on the right foot.

Don’t assume that all respondents will be hostile
We naturally tend to assume that someone accused of wrong-doing will try to deny it or at least make it difficult for us to find out what happened. Don’t assume anything.

In fact, the research on this (involving serious criminal offences) suggests about a quarter of offenders plan to deny wrong-doing, about a third decide to cooperate, and almost half wait to see how they’re treated. If people accused of wrong-doing are treated in a confrontational way then they are less likely to confess.

What if a respondent refuses to cooperate?
You cannot infer guilt from silence. Decisions are made on the basis of available evidence. If the evidence establishes a balance of probabilities that the respondent did something wrong, then without an alternative explanation, the decision-maker may find against them.

If a person declines to answer questions you can advise them calmly that a decision will be made based on the evidence, and that their perspective won’t be represented in that decision-making process.

What if an investigation leads to criminal charges?
If there is a possibility of criminal charges you should consider whether the police should be handling the matter first. If this has already been dealt with and police have given the go ahead to investigate, or won’t act until your investigation is complete, you need to understand the role of the caution.

In administrative investigations, the evidence can only be used in administrative decision making. For a confession to be admissible in a criminal trial a criminal caution should be provided first. There is nothing to stop a civilian investigator giving a criminal caution thus making the evidence admissible in a criminal hearing.

If you have any knowledge of criminal law and someone incriminates themselves, you can give the caution before proceeding, and the evidence will probably be admissible in a criminal court. However, any use of a civilian investigation into a criminal matter is almost certainly going to be contested in court.

How much information should you share with a respondent?
The investigator needs to provide enough detail for the respondent to understand what it is that they are being accused of.  For example, “Now, about this incident at work ...” probably isn’t enough. “It’s been alleged that you physically assaulted John Smith at work on the afternoon of February 18th” may be all it takes.

The more experienced an investigator, the better able they are to use their judgement - based on the nature of the allegations and scope of the investigation – about whether to adopt “selective or gradual disclosure” of evidence as a means of trying to obtain as full an account of the incident or events as possible.

This can also help identify key details that may be in dispute between parties and therefore require further investigation. For example, “You say that you pushed Mr Smith against the wall once. Someone who claims to have witnessed the incident says you grabbed Mr Smith by the hair and banged his head against the wall several times.”

Should the names of complainants be provided to a respondent?
Two principals come into play here: fairness to the accused, and protection of the complainant. The respondent must be provided with sufficient detail to respond to the allegation and that may include details of the complainant who is a victim.

However, an investigator needs to use their judgment. In some cases, disclosure of the complainant is unnecessary. But this must be weighed against the risk of the respondent making incorrect assumptions about what they’re being accused of and being unable to defend themselves against what could be a malicious complaint.

Interested in exploring these issues further? Professor Ray Bull is conducting a series of Master Classes on Investigative Interviewing in Brisbane, Sydney, Melbourne and Perth. Click here for further details.

Can you conduct a workplace investigation? Wise Workplace offers a full or supported investigations service.  Just call us on 1300 580 685 if you need help.




Investigative interviewing: five strategies to ask questions that count

Jill McMahon - Wednesday, April 17, 2013

Construction worker on the phone 

A sub-contractor on a construction site was instructed by a lead contractor to start drilling through a wall - despite warning signs on site that indicated the risk. He hit an electrical cable and received a massive shock. Amazingly, he lived.


As the dust settled, managers of several businesses involved in the project, realising the potential liability from this breach of health and safety, initiated a full investigation.

This incident is typical of the kind of health and safety breach that benefits from independent investigation – there is too much at stake for any of the parties involved to investigate this incident themselves.

The key is to obtain a complete account of what actually happened.

Here are 5 key strategies, or steps, in the process of asking questions of the people who were involved in or witnessed the incident that a professional investigator would use to get as close as possible to the truth of exactly what happened.

Step 1 - Obtain a free recall
A free recall is an account of events offered by a person free from guidance or interruption by the investigator. The investigator should ask a very broad open question seeking as much information as possible from the interviewee about the incident. It’s always advisable to seek a free recall before asking specific questions. For example: “I am investigating the circumstances surrounding John James’s accident. I’d like you to tell me everything you can about how it happened.”

Step 2 - Establish a timeline
Create a timeline based on the information obtained in the free recall. A timeline is a chronology of events. This will form a road map for questions later on in the interview. You may need to obtain evidence that requires the order of events to be very clear. For example: “When did Mr Smith ask you to start work on the drilling? Was that before or after you received the briefing from the electrical contractor?”

Step 3 - Recreate the context
Recreating the context of events surrounding the incident can be an effective way of obtaining a free recall. You can do this through verbal instructions to the interviewee. For example:  “Please close your eyes and think back to the time of the incident. Imagine where you were and then tell me everything you can about what happened” – and by asking them to draw a sketch. Encourage the interviewee to describe verbally what they are drawing at the time, and also ask them to label the diagram and sign it. Use this to ask clarification questions. For example: “You have drawn the stairs over here, was it directly opposite that window?”

Step 4 - Obtain a second recall
Interviewees rarely disclose all information in a first recall. Asking a person to recall the events for a second time normally produces more detailed information. But it’s a good idea for investigators to narrow the questioning to more specific issues; otherwise the interviewee may lose interest in the interview. For example: “In the first interview, you said Mr Smith was in a hurry to get the job done, can you explain why you had that impression?”

Step 5 - Ask probing questions
Probing questions are those that seek specific answers. They should be open to allow an unlimited range of responses wherever possible, but the occasional use of a closed specific question to clarify a point is also advisable. (Closed questions are those that illicit only a single “yes” or “no” response - or a very limited range of responses.) An example of a probing question may include: “What training have you been provided on the use of this machine?”

For further information on investigative interviewing skills you can purchase a copy of our book Investigative Interviewing here.

Top Forensic Psychologist Says Investigators Must Accept They Can Do Better

Jill McMahon - Tuesday, March 26, 2013

 

A woman suffered a vicious rape in London. There was little information to work with after the initial investigation. The victim had been drinking heavily before the attack and she believed there was little chance of the rapist being caught, let alone convicted. She seemed unable and unwilling to provide important details of what had happened.

An investigative team was assembled, including one of the UK’s top forensic psychologists, Professor Ray Bull. “She was understandably reticent, she didn’t want to say anything that was inconsistent and that might weaken her case,” says Bull. “But a lot had happened to her and we needed to work that out.”

Bull selected an interviewer, a young woman, whom he thought would be most effective. He listened in to the interviews and, drawing on more than 30 years of research in psychology, provided continual advice. He helped her obtain key details, some of which enabled police to connect the attack to another incident, and eventually convict a serial rapist.

Investigative interviewing is at the very core of the system of justice, says Bull, and investigators must strive continually to improve what they do. “It’s essential. The consequences of not being good are horrendous. This is real life - and if you get it wrong you can do a lot of damage to a lot of people.”

Bull conducts research on investigative interviewing of suspects, witnesses and victims, as well as witness memory and voice recognition. He shares his research and that of other academics internationally, consulting to organisations as diverse as the UK’s Home Office, courts, governments, police forces and even large private companies.

While investigators need to have a high level of self-belief and confidence, he says, they need to be open to accepting that they can always do better. At an institutional level, organisations need outside help and to learn from the variety of research that is now available. “I spend a lot of my time going around the world training the trainers,” says Bull, who was recently in Jamaica working with an internal police organisation.

People are not naturally good interviewers. “What you want in an investigation is for a person to give you lots and lots of information,” Bull says. “Socially, we learn the opposite - in normal conversation we ask a lot of closed and leading questions, and that can be very difficult to give up.”

Bull has been closely involved with the substantial changes that have taken place in the UK with investigative interviewing. In 1986, it became a legal requirement for police to record interviews, the first country to do so. It was only when these recordings were analysed that police officers themselves realised they were not interviewing well.

“People guilty of serious wrong-doing were running rings around the investigators,” says Bull.
That led to investment in research and the training of detectives in the mid-1990s. Today, the UK is widely considered a model of cooperation between academics, investigative authorities and the government.
New research is continually challenging commonly-held beliefs, says Bull.

“It’s a common belief, for example, that people who have done something wrong are not going to tell you about their wrongdoing. Well, in fact, there’s an increasing amount of recent and meaningful research that has come to the surprising conclusion that only about 25% of people guilty of wrongdoing will absolutely deny it.

“In fact, about 50% of people who are guilty of wrong-doing are pretty open-minded about how they are going to behave, and wait to see how they are treated by investigators,” says Bull.
Interviewers need not to have a domineering approach if they are to persuade potentially hostile suspects or witnesses to give them information. There need to be pauses and silences in the interview, and establishing and maintaining rapport with the interviewee is one of the “most essential” skills to learn, says Bull.

The key to a good investigation, says Bull, is the content of what people say. “You need to interview in a way that gets people talking, and then you can analyse and compare what they say with other information and that substantially increases the percentage above chance of getting to the truth.”

Bull started working with a major police force in the UK in 1970, helping officers with recall and memory. He’s conducted research on interviewing vulnerable people and authored the first official guidance in the UK on how to interview children. He is regularly asked to provide expert reports on the quality of interviews and testifies in court on average about eight times a year.

During an academic career now spanning more than 40 years, Bull has written or co-authored more than 200 academic articles and books.

He received a Commendation from the London Metropolitan Police for “innovation and professionalism” for his assistance with the London rape case.

He has since received awards and recognition for his work from the British Psychological Society, European Association of Psychology and Law and a special prize for his “extensive contributions to investigative interviewing” from the Scientific Committee of the Fourth International Conference on Investigative Interviewing.

Professor Ray Bull will be visiting Australia in April & May 2013 to conduct a series of master classes on investigative interviewing. Click here for more information.