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?

Harriet Witchell - 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

Harriet Witchell - 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

A Perplexing Problem: Protecting Children Overseas

Harriet Witchell - Thursday, April 20, 2017


Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach.

Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

Documents provided to the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children?

WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients. The work remains some of the most challenging to investigate. Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

  1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency

  2. Have clearly articulated Child Protection Standards and Guidelines

  3. Have clearly articulated procedures for dealing with complaints

  4. Understand the criminal law in the country of service delivery

  5. Understand the employee relationship between the funding body and the service providers on the ground

  6. Know your legal obligations under your primary funding agency agreement

  7. Respond quickly to complaints

  8. Conduct a risk assessment and take protective action if necessary

  9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain

  10. Seek specialist help when complaints are serious or complex to investigate.

WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts. Our unique Investigating Abuse in Care course provides valuable skills in how to assess complaints, reporting obligations, drafting allegations, interviewing victims and respondents, making decisions and maintaining procedural fairness. Book now for courses in May 2017.

Building Rapport in Investigative Interviews

Harriet Witchell - Wednesday, April 12, 2017


All workplaces are at risk of allegations of bullying, harassment, discrimination or other claims of misconduct or inappropriate dealings. As such, all employers must be prepared to conduct investigative interviews to determine the veracity and accuracy of any allegations made against or by one or more of their employees.

Apart from properly eliciting the facts, perhaps the most important thing in conducting such interviews is ensuring that there is sufficient rapport between the interviewer and the interviewee. This connection can result in more information being obtained from the interviewee, and also help ensure that more truthful answers are provided.

So what are our top tips on achieving this?

1. TAILOR YOUR APPROACH

There is no "one size fits all" approach when it comes to building rapport in investigative interviews, it's about tailoring the approach to suit the particular circumstances and the interviewee.

For example, there is probably little point running through a standard set of formal questions when interviewing children. Similarly, an employee who claims to be the victim of workplace bullying is unlikely to want to make idle small talk about how the company's netball team is faring in the local comp.

2. ASK QUESTIONS IN THE RIGHT WAY

It is crucial that interviewers are competent and know which questioning techniques to use in which situation in order to put the interviewee at ease and obtain quality information.

For example, taking the interviewee back in time to when the incident occurred can help with recall, while asking open-ended questions can assist in obtaining more detailed explanations.

3. MAKE THE INTERVIEWEE COMFORTABLE

One of the most important aspects of building rapport is to make sure the interviewee is relaxed. Ensure that there is adequate privacy for the interview to take place away from the prying eyes and ears of co-workers, and offer comfortable seating and beverages. It is essential to create a sense of trust in the interviewee, by making them comfortable, conveying an impression of competence and expertise, and by actively listening to them. If this occurs, the interviewee is more likely to feel comfortable divulging information.

4. MIRROR THE INTERVIEWEE TO BOND WITH THEM

A tip frequently utilised by law enforcement officials in conducting investigative interviews is to mirror the interviewee. This involves actively listening to what the interviewee is saying and "mirroring" or reflecting their mental state and emotions, such as expressing frustration about the way in which they have been treated, demonstrating understanding and validation of their feelings, and acknowledging that their experiences are significant and potentially very destabilising.

Mirroring is also closely aligned with the principle of reciprocity, which suggests that interviewees will respond in a way which matches the interviewer's attitude towards and interaction with them. An empathetic or obviously interested interviewer will doubtlessly elicit more information than one with an aggressive or unpleasant style.

It is particularly important to find factors of commonality and shared experiences if there is a power imbalance between the interviewer and the interviewee (such as a relationship of employer and employee or an external workplace investigator who is effectively a stranger). This can be as simple as discussing recent weather events, the traffic or sporting teams.

OBTAINING PROFESSIONAL ASSISTANCE

Conducting investigative interviews generally can be challenging. For more tips on how to undertake interviews in the workplace, participate in one of our upcoming advanced training courses on conducting investigations.

Alternatively, if you prefer to obtain expert assistance from the get-go, Wise Workplace provides full investigation services. Contact us today to find out how we can help with your workplace investigations.

Bullying: What's the Role of Leadership?

Harriet Witchell - Wednesday, April 05, 2017


Workplace bullying is somewhat of a scourge in modern society. Broadly categorised by Reach Out Australia as any behaviour which is physically, mentally or socially threatening and takes place in the employment context, it can have an enormous impact on staff effectiveness, employee retention, the number and type of worker's compensation claims and, of course, employee happiness.

Legally, employers have a responsibility to ensure that all workplaces are safe for their staff, including preventing workplace bullying. So what are the key things business leaders should be doing to tackle this problem?

1. PREVENTION IS THE BEST CURE

Perhaps the easiest way to deal with workplace bullying is to try and ensure that it does not happen. As suggested by Safework Australia, workplace bullying can best be prevented by the leadership team identifying potential risk factors within the organisation for bullying.

In addition to ensuring that new staff, wherever possible, are likely to mesh with other employees and not experience personality clashes, this process should also involve regular consultation with employees as to their levels of job satisfaction and the quality of interaction with co-workers, conducting exit interviews with departing employees, obtaining regular feedback and ensuring that there are detailed incident reports recording complaints and other potential instances of workplace bullying behaviour.

Being aware of possible triggers for workplace bullying can also be an effective strategy, for example, awareness of the various leadership styles in the organisation. Ensuring adequate communication between management and employees and requesting forthright feedback on work styles and interactions can help to reduce the risk of workplace bullying significantly.

2. LISTEN TO THE ALLEGED VICTIM - AND THE ALLEGED PERPETRATOR

It is important for leaders to be empathetic and open when speaking with a claimed victim of workplace bullying. Remember that the person alleging bullying, whether this has actually taken place or not, is already harbouring strong negative feelings about the workplace, or at the very least certain people in the workplace.

A heavy-handed or suspicious approach by the employer is likely to further upset the employee and worsen the ongoing impact and consequences of the bullying. At the same time, a leader investigating a workplace bullying claim does not need to blindly accept everything put forward by the apparent victim.

Both the "bully" and the "victim" are the employer's responsibility, and both are therefore entitled to have their full version of events listened to and acted upon appropriately.

3. TAKE DETAILED CONTEMPORANEOUS NOTES 

In the worst case scenario, an employee's bullying allegations may become the subject of legal proceedings.

This means a record of conversations and interactions between senior staff and claimed victims of workplace bullying may become essential evidence. In any event, regardless of the possible outcome, it is always best practice to ensure that all conversations with management are properly recorded, not least to make sure that further claims of workplace bullying are not levelled against management!

4. ENSURE IMPARTIALITY 

Depending on the size and type of your workplace, ensuring that investigations are conducted impartially may be difficult. In certain cases, it may be more appropriate to engage external workplace investigators to review workplace bullying complaints.

However, if employers choose to keep investigations in-house, prejudgement of the ‘facts’ or a bias toward one side or the other must be avoided. Where possible, it can be helpful to task someone who doesn’t work directly with either party with the investigation.

Negotiating the many tricky aspects of investigating workplace bullying complaints can be very stressful. At Wise Workplace, we provide advanced training courses in conducting workplace investigations, to make you and your leadership team as self-sufficient as possible. Register for an upcoming course date now.

Unpacking the Concept of Reasonableness

- Wednesday, February 08, 2017


Across all Australian workplaces the phenomenon of bullying is without doubt a front-and-centre topic. And as a result, overt instances of bullying in the workplace now tend to be more readily identified than ever before. 

One challenging idea for all concerned however is this; is it possible that management action that is entirely reasonable could be misconstrued by a worker as an act of bullying? In both workers’ compensation matters and industrial relations more broadly, the linked concepts of ‘reasonable management action’ carried out in a ‘reasonable manner’ have certainly been difficult to pin down. 

We take this opportunity to explore the complex concept of reasonableness as it related specifically to management action and workplace bullying. 

Workplace bullying - the basics

When proposals arose to include bullying within Fair Work’s mandate, employers were understandably uncertain. ‘Bullying’ has a very broad and subjective interpretation among the general public; surely one person’s harmless banter could be another person’s bullying?

Yet when changes to the Fair Work Act were made and the commission explained the new initiative to stakeholders, it was clear that the definition under 789FD(1)contained certain helpful boundaries. Significantly, the unreasonable behaviour needed to be repeated and not just a one-off incident. Further, the activity needed to cause a demonstrable risk to workplace health and safety. The description of particular unacceptable behaviours – such as belittling, humiliating, spreading rumours and having unrealistic expectations – also went some way to assisting employers in the creation of sound anti-bullying mechanisms.

Reasonable management action…

Yet what about business-as-usual management? – for example when a worker needs constant reminders and oversight by management in order to fulfil their role? Could this type of standard management action actually be construed as ‘bullying’? 

The commission foresaw this potential for definitional constraints to disrupt the operational needs of many businesses. Consequently, garden-variety management action such as performance management, work monitoring, instruction, direction and disciplinary action are generally outside of the definition of bullying. These actions are simply the core of most management roles. However, the analysis doesn’t end there.

Carried out in a reasonable manner

A full understanding of the interplay between alleged bullying and reasonable management action requires that employers be aware of the crucial third element of the equation – was the reasonable management action carried out in a reasonable manner? This might seem like splitting definitional hairs, but it is this particular nuance that sometimes gets overlooked. Let’s take an example:

The employer receives notification of a bullying claim from the FWC, made against a manager by a worker. The action in question appears to be quite reasonable management action – let’s say a routine performance management process has been commenced. HR assisted with documentation and there was clear objective evidence of the worker’s underperformance. This was clearly – in and of itself – reasonable management action on the part of the manager.

However, what can lead to difficulties for any employer is when the management action is not carried out in a reasonable manner. If the manner is found to be oppressive, aggressive, belittling and/or with completely unrelenting expectations regarding outputs – then there is a high likelihood that a bullying claim can be substantiated. In other words, all the good work involved in reasonable management action can come undone if it is administered in a bullying manner.

Train for reasonable management action

Most employers have become adept at the creation of healthy and safe workplaces. Layout and resource issues are quickly dealt with and the corporate culture is usually a point of workplace pride. 

It pays however to ensure that the less-obvious hazards are still kept in focus. While employees might generally be monitored to prevent bullying issues, it is the manner in which managers carry on their tasks that also has ramifications for employers. 

Our consultants have over 10 years of experience in determining what is and what is not ‘reasonable management action’ so if you have a matter where you need clarification or an investigation, talk to one of our consultants for advice on 1300 580 685. 

If you think your managers could benefit from toolbox training on successful performance management, managing bullying complaints or ‘bullying, harassment and discrimination’ awareness, talk to one of our training consultants about our HR Pop-Up Professional Development initiatives and toolbox training.