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

A Perplexing Problem: Protecting Children Overseas

- 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

- 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?

- 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.


Procedural Fairness its history and Central Tenet

- Wednesday, September 07, 2016


Procedural fairness (or ‘natural justice’ as it is otherwise known) has ancient origins, dating back to the Greek philosopher, Plato and Roman philosopher, Seneca 1  It applies in situations where there is a decision to be made which could have an adverse outcome on the rights, interests or legitimate expectations of a person. Historically this concept applied to formal legal decision-making processes, but these principles also apply to administrative decision-making processes carried out by government officials and agencies and have spread into all applications of employee related decisions including the application of the Fair Work Act and Work Health and Safety Legislation.  Procedural fairness is observed for individuals and organisations in all levels of government complaint management being observed in commissions of inquiry and Ombudsman investigations. 

Since the House of Lords decision in Ridge v Baldwin 2 , a case concerning the decision of a police authority to dismiss an employee, common law jurisdictions accepted that principles of procedural fairness apply to government decisions affecting employment. 

In Australia it has become standard best practice to apply principles of procedural fairness to workplace investigations into employee misconduct, particularly where a likely outcome of the process is dismissal or demotion of the employee. 3

In Lohse v Arthur, the Court described procedural fairness as a flexible and practical obligation to adopt fair proceduresappropriate to and adapted to the circumstances of the case – in essence this means that the employee under investigation be given a ‘fair go'. 

In practice procedurally fair workplace investigations reflect the following principles (which are discussed in detail in the following Part): 

1. A fair hearing 
2. Independent and unbiased decision makers 
3. A decision based on evidence

Indeed, the FWA stipulates that for those organizations covered by the FWA 4 , when considering whether dismissals are unfair, the concept of a ‘fair go all round’ is a paramount consideration. 5  Under section 387 of the FWA, some of the criteria to be taken into account in determining whether a dismissal was harsh, unjust or unreasonable reflect common law principles of procedural fairness, thereby underscoring the importance of these principles. 

How to implement the principles of procedural fairness in your workplace practices and investigation procedures is explained in detail during our investigation training courses.  Visit our website for more information here
 
AUTHOR: Alison Page, Legal Council | WISE Workplace
-- 

1 See Creyke, Robin and McMillan, John. 2009. Control of Government Action Text, Cases and Commentary Second Edition, Lexis Nexis Butterworths pages 683, 689 citing Callinan J in Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam (2003) 214 CLR 1

[1964] AC 40
 
3 See for example Jarratt v Commissioner for Police [2005] HCA 50
 
4 According to the Federal Government website, https://www.fairwork.gov.au/ most Australian workplaces are covered by the FWA. Those that aren’t are covered by their state system. Those not covered include:
  • employees employed by state government and local governments (unless their employer has a registered agreement in the national system)
  • many employees employed in Western Australia.

5 See FWA section 381(2) which refers to Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR(NSW) 95

 

Mitigating Factors and Dismissal - What is Relevant?

- Wednesday, March 16, 2016
Mitigating Factors and Dismissal - What is Relevant?

If you’ve ever conducted a disciplinary interview with an employee, you may have asked them if there are things they’d like you to take into account when making your decision about how to handle the matter.  

These are often referred to as ‘mitigating factors’, and are an important part of the disciplinary process. But we find employers can be uncertain about the concept, and what is relevant. 

And rightly so – mitigating factors are fluid, changing and evolving depending on the circumstances of a matter.

the Legislative basis for mitigating factors

The Fair Work Act sets out the criteria for the Fair Work Commission (FWC) to consider whether a dismissal is harsh, unjust or unreasonable, including whether there was:

  • A valid reason.
  • Procedural fairness.
  • Opportunity for the employee to be represented. 

It also requires that the FWC consider “any other matters that [it] thinks relevant.” 

This is the provision under which the FWC will consider mitigating factors – any background circumstances that might explain the conduct or reduce the severity of the penalty for the employee.

It is a deliberately vague provision, as mitigating factors could include just about anything, depending on the circumstances of the individual. 

Employers must consider these factors

Because the FWC must consider mitigating factors when determining an application for unfair dismissal, it follows that employers must also consider mitigating factors when making disciplinary decisions, including whether to terminate employment. 

This also serves as a reminder to employers that when deciding whether to terminate employment, all of the employee’s circumstances need to be taken into account to arrive at a “reasonable” decision. It is especially important to ask the employee whether there are any matters that they would like to be taken into account.

The importance of this was highlighted in the recent decision of the FWC in Mary-Jane Anders v The Hutchins School.
A real world example
Anders was a maths teacher and an academic administrator, employed by the school. She reported struggling with her workload and not long afterwards suffered a breakdown and took leave. After returning to work, she again broke down and took further leave. 

In the meantime, the school had removed her from her administrative role. She took issue with the allocation of classes that she was to teach. 

Her relationship with the school’s leadership broke down, and some of her colleagues refused to work with her. She used social media and emails to colleagues to vent her concerns.

The school’s deputy head terminated her employment following an investigation, citing a total breakdown in the employment relationship. Anders claimed unfair dismissal in the FWC.

The FWC made findings about bias, but also found that there were some significant mitigating factors which the school ought to have taken into account when investigating the matter. These included:

  • Anders’ previous good employment record. 
  • Her mental illness diagnosis.
  • Her husband’s critical illness at the time when allegations were first raised with her.
  • The school’s failure to address earlier problems in the relationships between Anders and some of her colleagues.

In light of these factors, the FWC found that, even though Anders’ emails and social media comments were poorly judged, the termination of her employment was harsh and there was no valid reason for dismissal. 

But even so, because her relationship with the school was so broken down, the FWC awarded compensation instead of reinstatement. 

The need to take mitigating into account

This decision is a reminder to employers of the importance of taking into account any mitigating factors. If an employee’s conduct is out of line or serious enough for termination to be considered, employers should do everything possible to get to the bottom of the matter. 

In our experience, the more thoroughly employers try to understand an employee’s conduct, the more likely the employer’s investigation will be seen as fair and reasonable. For further information about mitigating factors and how to address them, WISE Workplace can help. We’re just a phone call away. 

Undercurrents of Bias can Drown an Investigation

- Wednesday, February 24, 2016
Undercurrents of Bias can Drown an Investigation
In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer.   

One of the most regular complaints we hear from people who have been the subject of an investigation is that the investigator was biased and the decision was predetermined, and they had no chance of a fair hearing.  

It doesn’t really matter whether bias is real, it is the perception of bias that undermines the investigation process and can keep employers working with ‘problem’ employees through various court processes for years. You heard right - YEARS! 

There may be many sound reasons for using in-house staff to conduct investigations. These include: 
  • Keeping the costs down. 
  • Having someone familiar with the culture and work practices of the organisation. 
  • Knowing the individuals.   
So long as the person you use has the required skills in collecting evidence there shouldn’t be a problem, right?  

Wrong! – the issue over bias can become the dangerous undertow that makes all those cost savings irrelevant when you are embroiled in a protracted court case.  

What happened in Anders

Anders was employed by the school, located near Hobart, as an academic administrator (AA) and maths teacher.  

In 2013, Anders said that she was snowed under with her AA duties. She was also diagnosed with anxiety and depression, and took extended leave. At the end of 2013, the school removed her from the AA role. 

Anders disputed this decision by application to the Fair Work Commission (FWC). An outcome was negotiated, but Anders maintained her protests about the decision. 

Following her return to work, Anders had some further episodes of depression and anxiety, which again caused her to take leave. 

During this period, Anders’ relationship with the school’s management and other staff became problematic. It was alleged that she: 

  • Took issue at not being allocated a particular maths subject to teach, saying that “the gloves [were] off.”
  • Made some social media posts about her employment issues which caused the school to caution her about inappropriate use of the platform.
  • Sent emails to colleagues about her dispute with the school.
  • Expressed mistrust in the school’s headmaster and deputy headmaster and would not communicate with them.
  • Had such a difficult relationship with other teachers in the faculty that they had refused to work with her. 
  • Claimed that she had been discriminated against on the basis of her mental illness. 
  • Showed discourteous and disrespectful behaviour towards her colleagues. 

Deputy Headmaster Alan Jones investigated the matter. He put the allegations to Anders in writing and she was asked to attend a meeting and was invited to have representation present. Following the meeting, Jones interviewed other witnesses.  

Jones decided to terminate Anders’ employment, having found that most of the allegations against her were substantiated. He wrote to her saying that there was a total breakdown in the employment relationship, making her continued employment at the school impossible.  

Anders made a claim for unfair dismissal in the FWC. 

The FWC decision

The FWC found that while Anders’ behaviour may have indicated a lack of wisdom, it did not constitute a breakdown of the employment relationship. 

Because Jones was investigating the matter, the FWC said that he was in effect investigating an allegation against himself as Anders had allegedly declared that she did not trust the headmaster or deputy headmaster of the school. 

The concern was that he could not be impartial. This, combined with Jones’ knowledge of Anders’ mental health issues, “did not provide a reasonable basis for Mr Jones to conclude that each of these allegations [was] proven.” 

The FWC found the termination was harsh as there was no valid reason, and ordered the school to pay compensation. 

not the only case

This issue is certainly not an isolated one. The case of Keiko v Qantas also involved an allegation of bias. The investigator in that case was criticised for accepting the account of a close work colleague rather than the weight of contrary evidence from many other witnesses. As in Anders, using an independent investigator would have circumvented this issue.

Keeping investigations independent and without bias is a central tenet to procedural fairness. While independent investigators are not immune from bias or indeed allegations of bias, it is important for employers to recognise when their in-house team is too close to a situation to effectively investigate without bias. 

If you have a problem that you want to discuss or think an independent investigator is the answer, talk to one of our case managers about how our workplace investigators may be able to help. 

The Year that Was: Lessons from 2015 Part 2

Jill McMahon - Monday, January 25, 2016
Lessons from 2015 Part 2

Here at Wise Workplace, we’ve been focused recently on reviewing the past in order to learn for the future. Last week’s blog, part 1 of our two-part series on lessons employers can take from 2015, highlighted some important case law around the themes of bullying and the definition of ‘at work’.  

In part 2, we take a look at important decisions in other areas of workplace law, including workplace culture and procedural fairness, and the implications for employers. 

Workplace culture and its impact

When it comes to workplace culture, alcohol seems to be a key feature – and an increasingly vexing issue for employers.

In the NSW District Court matter of Mitchell-Innes, a manager attended a conference still drunk from the night before. He disrupted part of the session and his employment was later terminated for gross misconduct. 

The court found that alcohol consumption was entrenched in the workplace culture, and this meant that the employee’s conduct was not serious enough to warrant termination of employment. 

Similarly, Keenan’s drunken behaviour during and after the office Christmas party led to the termination of his employment. 

Both cases found that misconduct would be harder to establish when there was a culture of drinking in the workplace, including after-hours functions. 

In Keenan, the FWC listed some steps of caution that a reasonable employer should take in trying to stop things getting out of hand, including ensuring that alcohol service is restricted, and employees are aware of employer expectations of behaviour. 

Overstepping the mark

2015 also saw cases of workers being unfairly punished for a third party overstepping the mark.

In Amiatu, employees were accused of theft. Their union representative persuaded the company to allow them to resign rather than be terminated. The employees later claimed they were coerced to resign because they feared police involvement. The FWC held that the union representative failed to act in the best interest of the workers, even though the employer had reasonably believed it had negotiated an outcome.

This is a reminder to employers to be careful about negotiating with employee representatives, especially when the employee is not present. 

In the case of BQY, systems designed to protect went too far. A female student teacher had allowed a former student to kiss her some time after she had finished her placement and after the boy had turned 18. She was subsequently refused a clearance to work with children by the Children’s Guardian, placing her teaching career in jeopardy. On review, it was found that she was not a threat to the safety of children, and she was granted the clearance. 

Procedural fairness and standard of proof

No workplace investigation is of value unless it is undertaken properly, so it is no surprise that procedural fairness featured prominently as a theme last year. 

In Amiatu, as well as the union overstepping the mark, the FWC found that the employer had not uncovered enough evidence to prove allegations of theft and had failed to objectively assess the matter. The Elton case concerned an employee’s alleged suspicious behaviour. The FWC found there was a reasonable explanation for the employee’s conduct, and the employer did not have enough evidence to support the allegations. 

Both cases are a reminder that evidence must be carefully assessed and all possible options and explanations considered. Engaging an independent investigator is often an excellent way to achieve this.

In Willis, there was some confusion about whether the employee was being performance managed or disciplined. The FWC found that employers must be clear about the process from the outset, and that any action taken against the employee must be a proportionate response to their conduct.  

The NSW Supreme Court case of Bartlett found that the employer could effectively set its own standard of proof, depending on the wording of the employment contract in question. It will be interesting to see how this decision is subsequently developed, as it seems a significant departure from the usual standard of ‘on the balance of probabilities’. 

A timely reminder

These employment law decisions of 2015 serve as a good reminder of the fundamentals for disciplinary matters or termination of employment: 

  • Investigate properly and fairly.
  • Maintain objectivity. 
  • Act within authority.
  • Foster a workplace culture that is safe and healthy for all.

Keeping these things in mind, we hope that our clients enjoy a happy and prosperous 2016!