Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

'I Was Sent to Coventry' and Other Social Bullying Techniques

Vince Scopelliti - Wednesday, October 25, 2017

When we think of bullying, the clichés of schoolyard taunts might spring to mind. Yet as we learn more about the wide-ranging techniques of bullying, it is clear that this deeply complex phenomenon can be hard to pin down. 

For example, being ignored, or made an outcast in any situation - 'sent to Coventry' - can be highly distressing. This insidious brand of social bullying unfortunately arises in many workplaces, causing pain and anxiety for victims.

what is bullying? 

Bullying can be physical (including hitting or even destroying property), verbal, cyber (such as bullying on social media), and social. 

A person being 'Sent to Coventry' is a form of social bullying. 

So what do we mean by a person being 'Sent to Coventry'? Historically the phrase appears during the English Civil War when prisoners would be sent to the eponymous North-Western City for punishment, and experienced isolating treatment by locals. But how does this tend to manifest as workplace bullying? 

Picture this: on the surface, the workplace looks pleasant. There is occasional chatter and people seem content. But look closer - on Friday lunch excursions, one person appears to be ignored by the others as they leave. In meetings this person's colleagues seem to ignore their ideas, or quietly mock them when they have the courage to speak. They have also mysteriously been kept off the roster except for a few skeleton shifts... and so on. 

These are classic moves of ostracism as a weapon for workplace bullying. Left unmonitored, such behaviour can lead to severe stress and mental health problems for the outcast employee. 

The worker might originally have committed a 'sin' in the eyes of co-workers - perhaps told management about colleagues misconduct, or appears to be given special treatment. On some level, one or more workers have judged this as being unforgivable, leading to a long and toxic period of unrelenting silence, mockery and isolation.

bullying women, bullying men

What are the gender differences when it comes to social bullying? Unfortunately, this more covert behaviour seems to be a particular feature of female-to-female bullying

The phrase 'deafening silence' sums up the effect of this form of workplace bullying, where a worker is deliberately placed on the outside of a work group dynamic by one or more of their colleagues. 

The mechanisms are often subtle, and certainly challenging for management and workplace investigators to detect or prove. Yet by their very nature, stealthy and outwardly ambiguous bullying tactics in the form of ostracism and freezing-out can be painful and injurious for the victims of such attacks.

Men can also engage in subtle forms of social bullying, but are more likely to add overt actions as they bully a fellow worker. Particularly where rank or divisions enable such bullying, male offenders might sabotage the atmosphere and opportunities for targeted colleagues, later escalating to overt physical and verbal abuse. 

pulling rank - the hierarchical workplace

In the armed forces, emergency services and police, there is an opportunity for those in particular positions to 'close ranks' as a form of workplace bullying. For the victims of such behaviour, equipment can mysteriously go missing and vital operational information can 'somehow' bypass the bullied person. Aggressive taunts are also more likely in rank-based organisations.

questioning what is true

Most 'quiet' forms of workplace bullying seem to evaporate when management or a workplace investigator shows up. Also, consummate 'Coventry' bullies will sometimes alternate their attacks with neutral or even pleasant exchanges with the bullied worker. 

The victim is left on the back foot, unsure of what is real or imagined and often quickly becoming susceptible to both functional and mental decline as a result. Such 'gas lighting' attacks often cause the most long-term harm to a worker. 

Investigators must be vigilant in exploring alleged workplace bullying of this type. Common mistakes in the field can be when those investigating warm to often-extroverted perpetrators; bullies are masters of manipulation and can at times seem charming.

Conversely, the worker claiming bullying might appear nervy and unclear in their communication - perhaps even a little 'odd' compared to other workers. Rather than using this as a basis for dismissing the allegations, the history and behaviours behind all interviews must be carefully collated and compared with utmost objectivity. Indeed, the unusual presentation of a worker might in fact indicate a reaction to the effects of a covert system of workplace bullying.

Gathering evidence from multiple witnesses will often assist in identifying if there have been any patterns of behaviour from the perpetrators. 

When it comes to claims that a worker has been 'Sent to Coventry' and subjected to social workplace bullying, it is important to approach the ensuing workplace investigation with care. 

WISE Workplace is happy to assist you with any queries you might have regarding the right way to investigate any alleged workplace bullying incident. We offer unbiased, professional investigation services, carried out by a qualified and experienced team.

Professional Distance and Conflict of Interest at Work

Vince Scopelliti - Wednesday, September 20, 2017

During the seventies and eighties, organisations started to realise that the improper use of power and authority and undeclared and/or ineffectively managed conflicts of interest, posed a significant risk to their integrity and public trust. 

The requirement for ethical business dealings focuses the spotlight on conflicts of interests and the factors involved in creating the perception of conflicts of interest in the workplace. 

It can be difficult to maintain a suitable professional distance with colleagues, subordinates and suppliers, particularly if a significant friendships have been formed outside the workplace. There is an increased risk when managers, employees and co-workers communicate on social media. Employers must also be vigilant about the risks of inappropriate levels of professional distance with clients or colleagues, especially in circumstances where such behaviour may lead to, or can be perceived as, grooming of vulnerable persons. 

When it comes to conflicts of interest, it is best to completely avoid any behaviour, which may result in the creation of a real or perceived conflict of interest. For this reason, many professions address this specifically in their Codes of Conduct or may draft specific conflict of interest policies, which set out expected and appropriate standards of behaviour. 

In our planned six-part series we'll unpack the key elements of professional distance and conflict of interest, from maintaining professional boundaries to determining the difference between a lapse of judgement and grooming. 

breaching professional boundaries   

According to Dr. Anna Corbo Crehan, from the Centre for Applied Philosophy and Public Ethics at the University of Melbourne, questions of professional distance occur when two or more people involved in a professional relationship also have an additional relationship, such as one based on love, attraction, friendship or family. "So then, professional distance is the space a professional must keep between their professional relationship with another, and any other relationship they have with that person. By keeping this space, a professional can fulfil their professional and personal obligations, and be seen to do so, in a way that is impartial and/or non-exploitative in regard to the other in the relationship", she says. 

Breaching professional boundaries can also refer to the failure to manage conflicts of interest. A particularly close relationship between co-workers, especially those involving persons in a position of authority, may create the perception (whether real or imagined) of inappropriate work-related benefits or advantages being bestowed on a close associate because of the friendship. 

The most common types of conflict of interest are financial, such as where a monetary advantage is bestowed or a financial saving made, and personal, where a clear benefit is provided to the recipient such as a promotion or an opportunity for advancement or training and development. 

The best way to avoid perceived conflicts of interest is by maintaining clear professional boundaries, especially by those in a position of power, such as employers, supervisors, managers, or instructors. In extreme circumstances it may be prudent to completely avoid forming any relationships with colleagues outside of work.

codes of conduct and different professions 

Many professions abide by specific Codes of Conduct, which set out and govern acceptable standards of behaviour in their specific industry and provide comprehensive guidelines as to what is considered appropriately maintained levels of professional distance in that industry. 

For example, an inappropriate level of closeness may mean one thing in the context of a school teacher, and another thing in the context of a physical therapist. Professions such as nursing, teaching and social work need to have an additional emphasis on protecting vulnerable persons (such as children, the elderly, the disabled, of the mentally ill) from unscrupulous persons of the effects of inappropriately close relationships. 

In other professions, such as aged care or legal services, it is vital that professional distance is maintained to avoid any perception (whether actual or imagined) of financial abuse and conflicts of interest, when a client confers excessive financial benefits on the service provider. 

One recent example of a breach of an industry specific Code of Conduct involved a police officer who sold confidential information and provided accident locations to a tow truck driver, who gained a financial advantage from arriving on the scene ahead of competitors. 

On many occasions, a failure to maintain an appropriate professional distance occurs inadvertently or without any intentional wrongdoing. While it is beneficial for colleagues to develop good relationships with their co-workers, it is important for all employees to be able to maintain a perception of professional distance so that it does not appear as though they are incapable of making impartial business related decisions. 

professional distance and social media 

In the modern workplace, social media has become a virtually omnipresent phenomenon. With the advent of many different types of social media platforms, including LinkedIn and Facebook, there are many opportunities for workers to remain connected. 

Most employers recognise that social media is a platform that is both complimentary to, and additional to, other methods of communication and engagement used by them. Most employers also understand the beneficial networking functions of social media, particularly in the case of LinkedIn, however there is a far greater risk of boundaries being crossed or lines being blurred when communicating through social media. 

There can be particular difficulties in utilising social media when dealing with vulnerable people such as students, the disabled or persons with mental health issues. As a general rule, it is inappropriate for work colleagues or employers to share overly personal information or material on social media. Most workplaces have a clearly set-out social media policy. It is important that employees are made aware of its contents and application and are encouraged to use social media in a responsible, reasonable and ethical manner, in accordance with the employer's Code of Conduct. 

Broadly, if content is critical of a colleague, affects his/her reputation, is personal, hurtful, potentially embarrassing to a co-worker, or otherwise inappropriate, it could easily breach the requirements of professional distance.   

determining grooming, or an error of judgement. 

An important aspect of maintaining professional distance involves taking steps to avoid situations where it could be perceived that 'grooming' is taking place. This is essential not just in the context of children, but other people who are deemed to be vulnerable, including the elderly, those with disabilities, or those involved in situations where there is a power imbalance. 

The act of grooming is a criminal offence in many Australian states. It is a term which generally refers to deliberate and sustained contact with a vulnerable person in order to obtain their trust and prepare them to participate in the groomer's intended purpose, which may be sexually, financially or otherwise motivated. 

As a responsible employer, if somebody reports concerns about potential grooming, or you observe the possibility of such behaviour occurring, it is important that a workplace investigation is conducted to determine whether the contact is in fact grooming, or merely represents a lapse in judgement.

Dealing with a breach of boundaries 

The best litmus test when assessing appropriate levels of professional distance between managers and employees, between co-workers or between employees and clients, is whether there could, in the view of a reasonable person, be a perception of inappropriate behaviour, conflict of interest, favouritism, nepotism, or even grooming. 

If there is any possibility that such assumptions could be made, then it is likely that professional boundaries are being crossed. 

If you have doubts regarding a potential conflict of interest or breach of professional distance, then it is best to get an impartial third party to investigate. Our services include full and supported workplace investigations and training. Contact WISE Workplace today to find out how we can best be of assistance.

Document Examiners: When to Make Use of Them

Vince Scopelliti - Wednesday, September 13, 2017

Should the outcome of a workplace investigation be taken on review, the integrity of the evidence, amongst other aspects, will come under scrutiny. 

In cases where documentary evidence is relevant, it can be valuable to present expert evidence or obtain an opinion from a document examiner. 

But as a recent NSW case involving document examination demonstrates, it is also essential that the workplace investigation has been conducted and evidence gathered with procedural fairness top of mind. 

What is document examination?  

A document examiner is a qualified professional who conducts forensic investigations of documents. This might include the handwriting, the origin of a document (including whether it is an original, a facsimile or a photocopy), and whether entries on a document have been changed or deleted. 

Although there are many ways in which document examiners can be helpful, they are generally called upon to provide expert evidence in relation to the authenticity and origin of important documents. This can include:

  • Examination of documents to establish whether they are forgeries
  • Comparison of signatures and identifying markers to establish authorship
  • Examination of printing processes (such as determining whether a series of documents originated from one printer or the same type of machine)
  • Reconstructing altered or destroyed documents
  • Determining whether different incidents of graffiti originate from the same writer.  

How is it done and what are its limitations? 

Document examination is considered a forensic science, meaning that it is conducted according to verifiable and objective scientific principles. 

In this regard, a document examiner can be relatively certain when assessing types of ink or paper with a view to determining the origin of a document and whether it is an original or a copied version. This becomes much more difficult in the area of handwriting analysis, which is ultimately an inexact science. Handwriting analysis relies upon the document examiner's individual interpretation of whether two handwriting samples match each other.

USE IN CRIMINAL PROCEEDINGS 

Although there is substantial use for document examination in the workplace disputes and civil contexts, the science is also extremely important in criminal proceedings. 

In particular, document examiners might be called upon to determine whether a document is authentic or a forgery, or whether a document has been altered to change its original meaning - for example the alteration of a figure on a cheque, or a fraudulent annexure to a will. 

Case study

Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30 demonstrates the importance of document examination as well as its limitations. Prephaps even more importantly, the case demonstrates why it is of paramount importance that any workplace investigation process proceeds in accordance with the principles of natural justice. 

In Bartlett, a former ANZ State Director was awarded an unfair dismissal payout in excess of $100,000. He had been summarily dismissed for alleged serious misconduct, against the background of an allegation that he had altered a confidential, internal email and then forwarded that document to an external party, a journalist. 

The NSW Court of Appeal determined that it was not relevant whether the bank believed that the director had altered and sent on the document, but the essential ingredient in the dismissal was whether the director had in fact committed the misconduct of which he had been accused. 

As the employer, the bank carried the onus of proof to demonstrate that the misconduct had occurred and could be proven, however, the handwritten evidence on which the bank relied to prove the misconduct ultimately did not support any such conclusion. 

Although the bank had utilised the services of a document examiner to assess whether the director's handwriting matched that on the envelope addressed to the journalist, the bank was found to have denied the director natural justice in failing to provide him a copy of the handwriting sample used and therefore effectively denying him the ability to obtain a responding opinion. 

There were also various other factors, including incorrectly comparing cursive and print writing, which caused the court to determine that the handwriting expert's evidence should not be accepted in any event. 

The Bartlett case study confirms how essential procedural fairness is in all internal and external workplace investigations. 

Contact WISE Workplace to undertake investigator skills training, or to arrange to have one of our highly qualified investigators assist you with all aspects of your workplace investigation, including providing advice on whether the services of a document examiner might be helpful. 

Considering Suspending an Employee? What Should You Know

Vince Scopelliti - Wednesday, September 06, 2017

When faced with an allegation of serious misconduct made against a worker, an organisation may seek to suspend the respondent. 

But in what situations is it appropriate to take this kind of action?

tHE LEGALITY OF SUSPENSION 

When taking the significant step of temporarily suspending an employee, an organisation must be able to demonstrate an objectively good reason for doing so. 

Once preliminary enquiries have indicated that there is prima facie evidence to support an allegation of serious misconduct, a risk assessment needs to be carried out, to determine what the risks are associated with suspending or not suspending the respondent. 

The risk assessment should include: 

  • Risks to the complainant and other workers should the respondent remain in the workplace and the potential psychological impact this may have, especially in cases of sexual harassment
  • Risks of the respondent interfering with witnesses or tampering with evidence
  • Potential impact of suspending or not suspending the respondent on the morale of the workforce and the reputation of the organisation
  • Potential impact of suspension on the respondent
  • Whether the suspension or non-suspension is in accordance with the relevant disciplinary policy. 

Generally, it is appropriate to suspend a worker if an investigation into their serious misconduct is being carried out, and their continued presence in the workplace may jeopardise the process. This could include concerns about the misconduct continuing undue influence on or harassment of witnesses, or safety and security issues.

It is important to bear in mind the distinction between 'standing down' and 'suspending' an employee.

In a 'stand down' situation, the employee has not necessarily done anything wrong but the employer cannot usefully employ them for reasons that are outside the employer's control - for example, a fruit picker who cannot continue working during a significant weather event. In those situations, the employee is not paid during the stand down period. 

However, during a suspension period, the employee remains entitled to all rights of their employment contract, except the right to attend work to undertake work duties. 

An alternative to suspension could include redeploying the employee into another area, if the conduct is not of the most serious kind and or if the employer has an alternative site or role available. 

Circumstances leading to suspension 

Suspension should only be utilised in the most serious situations, where the only appropriate next step would likely be termination of employment. 

As such, appropriate circumstances leading to a suspension of an employee generally include accusations of serious misconduct such as defined in Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth)

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • Conduct that causes serious and imminent risk to the health or safety of a person; or
  • Conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer's business;
  • The employee, in the course of the employee's employment, engaging in:
            • theft;
            • fraud; or
            • assault;
  •  The employee being intoxicated at work; and
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment. 

Generally, it is appropriate for an employee to be suspended at the beginning of a workplace investigation, although the employee can be suspended during the course of the investigation if it becomes apparent that their presence is or could be interfering with the investigation.

Appropriate conduct by an employer during a suspension

During a period of suspension, an employee is generally asked to keep away from the workplace, colleagues and clients of the business. If they are on full pay then they are generally not entitled to conduct any outside of work employment without the employers consent. 

Although a suspension may be the precursor of a final dismissal once the investigation has been finalised, employees who have been suspended remain entitled to a number of rights, including:

  • Full pay during the period of the suspension
  • Regular review of the suspension period
  • An endeavour to keep the suspension as short as possible
  • A clear explanation of the reasons for the suspension and the anticipated length of the suspension
  • An explanation of the employer's expectations of the employee during the suspension period, such as requiring the employee to be available by telephone during normal business hours. 
  • An assigned contact within the human resources or management team with whom the suspended employee can liaise. 

Avoiding further legal issues

Suspending an employee from the workplace is a serious intrusion on their employment and personal rights. It is essential that employers ensure that all criteria of appropriate conduct are met, in order to avoid a situation where it may be argued that the suspension amounted to a constructive dismissal. Ensuring procedural fairness, transparency and clarity in the process will assist with this objective. 

If you require assistance with a workplace investigation where an employee has been suspended, contact us. We provide full independent and transparent investigation services, or supported investigations where we offer advice and guidance as you compete the process.

Bullying in High Stress Workplaces: Can an Investigation Help?

Vince Scopelliti - Wednesday, August 30, 2017

A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

Alarming workplace reports

Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

Workplace bullying and hr responses

The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

THE good and the bad of workplace investigations

Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

investigation woes: a case in point

In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

Care at every turn

Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us. 

What Evidence Should Be in a Workplace Investigation Report?

Vince Scopelliti - Wednesday, August 23, 2017

In every workplace, there will eventually be a situation where an investigation needs to be carried out into an employee's compliant or conduct. One of the most crucial aspects of conducting workplace investigations includes preparing an investigation report which can be relied upon for any future purpose, including carrying out and implementing disciplinary action against an employee.

WHAT IS the purpose of an investigation report?

An investigation report is intended to provide a 'snapshot' for external entities, such as auditors, judges or tribunal members, or the police; of the allegations made, the likely accuracy of the claims, the background circumstances surrounding the alleged behaviour or occurrence, and the likely consequences imposed once any findings have been made. 

Broadly, the investigation report is created in order to: 

  • Form the basis of any future action, such as disciplinary proceedings or strategic direction. 
  • Record the conduct of the investigation objectively (in particular to avoid allegations of bias or a lack of procedural fairness)
  • If necessary, be produced in legal investigations, or proceedings. 
  • Record observations and other data surrounding employee attitudes and experiences. 

ELEMENTS OF A GOOD INVESTIGATION REPORT

It is essential that every investigation report: 

  • Is set out in an organised fashion. This includes, for example, ensuring the inclusion of page numbers and an index so that information can be readily sought. 
  • Is internally consistent and can stand-alone, meaning that the report itself makes sense and is complete without having to refer to extraneous documents of information
  • Objectively documents findings and recommended actions, without any bias or undue influence. 
  • Identifies whether allegations were ultimately grounded in fact or were simply unfounded. 
  • Alternatively it may also identify if there is insufficient evidence to make a finding. 

In areas legislation, regulations or specific policy and procedures particularly with some government departments, the investigation and reporting requirements can be more onerous and prescriptive where there may be higher level oversight.

In general today, it is increasingly critical to ensure that an investigation report is properly completed - certainly this is to demonstrate that the instructing entities use best practice in all investigation reports created in consultation with employees. 

The role of briginshaw

In matters where there could potentially be criminal implications, other serious outcomes, or adverse findings, it is crucial that an investigation report have regard to a legal concept known as the rule of Briginshaw v Briginshaw

This means that the decision maker must be satisfied that the seriousness of allegations is weighed up against the potential consequences of adverse actions or findings. This highlights the importance of putting only relevant matters into an investigation report. 

how should an investigation report be set out?

From a practical perspective, it makes sense to stick to a fairly rigid structure in drafting every investigation report - particularly because this regime will enhance the objectivity of any finished report. 

This structure should include:  

  • An executive summary - so that the key findings and recommendations are immediately clear and identifiable. In many cases this is the only part read by outsiders, so it is essentially that the key information is contained in the summary in the 'punchiest' way possible.
  • A methodology - in order for the reader to understand what process the author went through to complete the report. 
  • An identification of the standard of proof against which the report has been drafted and the allegations have been assessed. Outside of the criminal world, the civil standard is assessed according to the balance of probabilities: that is, whether it is more likely than not that a certain behaviour or alleged fact took place as claimed. 
  • Key evidence being relied upon in relation to each allegation/particular. 
  • An analysis of the evidence that supports any findings made. 
  • Other issues which may be relevant to the investigation itself or the ultimate determination. 
  • If appropriate, recommendations for future conduct.

What is the role of evidence in investigation reports?

Items of evidence which should be contained in an investigation report include:

  • Witness statements and/or transcripts of interviews
  • Physical evidence such as photographs of injuries or the debris of a broken item.
  • Documentary evidence such as incident reports or contemporaneous file notes.
  • Electronic evidence including emails, text messages and CCTV footage.
  • Expert reports such as medical reports
  • Other documentary support evidence such as rosters, timesheets, fuel cards, behaviour support plans, client profiles etc. 

Crucially, the evidence should be relevant and sufficient to support any findings.

Relevance may be determined by employing the following assessment, as set out in the decision of Robinson v Goodman [2013] FAC 893

a) What facts are disputed, and what the collated evidence tends to prove or disprove.

b) Whether the evidence provided might be indicative of the fact that person will tend to behave in a certain way. When relying on so-called tendency evidence, it is essential that the potential consequences of claiming that somebody has a tendency to behave a certain way are weighed up against the potentially damaging suggestion that a person's past behaviour should dictate whether they have acted in that way again.

Although workplaces are entitled to maintain confidentiality over investigation reports, in most cases, there are certainly circumstances where the reports may be ordered to be handed over to the complainant or the other party. 

This was the case in the decision of Bartolo v Doutta Galla Aged Services (July 2014), where the Federal Circuit Court ordered the waiver of legal professional privilege over investigation reports completed by external lawyers. 

The court's decision to produce the reports was due to the fact that an employee had been dismissed on the basis of information set out in the investigation reports. It was therefore clearly incontestable that the report was not relevant to the outcome complained of by the former worker.  

potential consequences of a poorly drafted investigation report

Given that an employee's life can be significantly affected by the conclusions drawn in investigation reports, there is high potential for outcomes to be referred for legal proceedings. 

As this is a likely possible outcome, it is important to make sure that any workplace investigations are determined according to the minimum standard on which the court will rely. That is, satisfying the court on the balance of probabilities that a reasonable person would consider it more likely than not that events occurred as described by the complainant or the worker. 

Properly prepared investigation reports are very similar to briefs of evidence prepared by counsel during court proceedings, and can be complicated and challenging documents to create. WISE Workplace provides training designed to assist you with the conduct of workplace investigations and drafting reliable reports. Our team can also conduct investigations for you. Contact us today. 

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

facts of the case

Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

  • Making fun of a resident
  • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
  • Continuing to drink tea with another co-worker while residents were calling for help.
  • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

decision of the commission

In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

  • Ms Tavassoli had been constructively dismissed
  • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

Legality of secret recordings

Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

  • Is notified in writing, before the intended surveillance, that it will take place.
  • The surveillance devices are clearly visible.
  • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

The Key message FOR EMPLOYERS

The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace

How Can HR Support Staff During a Workplace Investigation?

- Wednesday, June 28, 2017

Where a complaint has been made by one staff member against another, and a workplace investigation takes place, all kinds of emotions can be running high. 

People participating in a workplace investigation, whether as complainants, respondents or even witnesses, can suffer symptoms of mental health issues such as depression and anxiety, as well as emotional distress. 

Respondents in particular can feel abandoned and cold-shouldered, especially in cases where HR departments decide to take a 'hands-off' approach while the investigation is being conducted. If a respondent is also suspended from work during the process, they may also feel prejudged and already declared guilty. 

In light of this, it's extremely important that employers ensure that investigations are handled fairly and impartially, and that all participants are supported. 

Here's how HR can help support participants throughout a workplace investigation.

THROUGH TRANSPARENCY AND COMMUNICATION

First and foremost, effective communication and transparency are vital from the outset. A failure to communicate can worsen distress and lead to participants thinking the worst. 

Decide on being transparent from the beginning. This involves taking the complaint seriously, listening to all sides, and making sure all participants know how the complaint will be handled. It's also important to check back that they have understood what was said and address any misunderstandings (something that can easily happen when emotions and tensions are high!)   

SETTING OUT THE PROCESS

It's important to get to work quickly, appoint an investigator, and make decisions regarding the scope of the investigation, the timeframe, and actions to be taken after completion. However, do be prepared for the process possibly taking longer than anticipated. 

Once you've decided on the process, make sure to keep everyone informed of how the investigation will be conducted and what they can expect, and aim to keep communication lines open throughout. Also reassure the respondent that they are not in any way being prejudged, even if they have been suspended for a time during the investigation. 

APPOINTING A SUPPORT PERSON

Participants need to know they have someone to go to for emotional support, who can also explain the process and answer any questions they may have. 

One thing to note here is that employees may not necessarily show their emotions at work and this could lead you to think they are fine and don't need assistance, when in fact the opposite is true. 

Appoint a support person whose role it is to regularly check up on the person and provide support without taking sides. 

CONDUCTING INTERVIEWS WITH RESPECT 

Interviews need to be conducted fairly and withe respect and non-partiality. 

It's important to avoid acting like an interrogator; your job is to uncover the facts and truth of the matter and not to extract a 'confession'. This means all participants should be treated with respect and empathy, and given breaks during interviews if required. 

OFFERING POST-INVESTIGATION SUPPORT

An investigation can affect everyone and can reduce morale and trust in a workplace. It may in some cases even lead to employees seeking work elsewhere after feeling demoralised by the whole experience. 

In a case where the respondent has been restored to duty, it may be hard for them to simply go back to 'business as usual'. The same may also apply to complainers, particularly if the investigation did not go the way they wanted. 

Be prepared for it to take some time for trust and morale to be restored, and offer mentoring and support after the process to anyone who needs it. Be proactive in rebuilding trust and positive relationships. 

Lastly, we can provide expert assistance with workplace investigations. Feel free to contact us for more information.  

Witness Statements Protected in Australia Post FOI Bid

- Wednesday, April 26, 2017


A recent decision of the Australian Information Commissioner has confirmed that certain categories of internal documents cannot generally be forced to be the subject of a disclosure process.

The decision, which was handed down by Commissioner Tim Pilgrim on April 5, 2017, arose from a refusal by Australia Post to produce documents to a former employee, identified for the purpose of the proceedings as "LC".

LC had complained to his former employer that he had heard two managers making "derogatory comments" about him, and reported that he had heard from an HR officer that the managers would be disciplined for their actions. Accordingly, LC issued a Freedom of Information (FOI) request seeking documents pertaining to Australia Post's investigations, with a view to identifying what disciplinary action would be taken.

aUSTRALIA POST CLAIMS DOCUMENTS EXEMPT

However, the requested documents were not produced by Australia Post, which claimed that the materials were exempt from production under sections 47E(c) and 47F of the Freedom of Information Act 1982 (Cth).

Section 47E(c) of the Act provides that documents are not required to be produced if they would or could "have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency". Meanwhile, section 47F states that documents need not be produced if they would unreasonably reveal personal information about any person, including a deceased person.

LC requested a review of the FOI decision. However, Commissioner Pilgrim agreed with Australia Post's refusal to produce the documents, in accordance with the "management functions" exemption set out in section 47E(c).

RELEASE OF DOCUMENTS WOULD 'IMPEDE INVESTIGATIONS'

In these circumstances, the documents related to both managing and assessing personnel because they related to complaints by employees and associated disciplinary proceedings.

Specifically, Commissioner Pilgrim found that documents including witness statements and counselling or disciplinary action documents directly related to the management functions of an organisation, and accordingly could "reasonably be expected to have a substantial adverse effect" on those functions.

In particular, Commissioner Pilgrim concluded that permitting the release of these documents would impede the proper progress of investigations, because there was a very reasonable prospect that it would put people off making complaints or providing honest witness statements during enquiries, particularly over concerns of "backlash" from co-workers and supervisors or senior employees.

Having regard to the nature of Australia Post's business, Commissioner Pilgrim also found that public interest dictated that Australia Post and other government organisations should be able to protect the integrity of their code of conduct complaint processes.

THE WIDER IMPACT ON WORKPLACE INVESTIGATIONS

The recent decision in LC and Australia Post highlights the importance of employers being able to maintain the integrity, privacy and confidentiality of their internal disciplinary processes. In particular, witnesses and complainants can be reassured that anything they divulge and which is recorded during the provision of interviews cannot be easily disclosed on the basis of FOI requests.

Make sure that your internal documentation and disciplinary processes are protected, private and accurate. The majority of unfair dismissal claims are due to lack of process and procedural fairness. Fix the process and reduce time and money spent in court with the Workplace Investigation Tool Kit. You can find more information about it here