First Cab off the Rank? Interviewing Respondents

Jill McMahon - Monday, November 23, 2015
Interviewing Respondents in Workplace Investigations

Even the simplest of workplace investigations can be a tricky balancing act. You need to consider how to investigate the matter, collect evidence and adhere to various laws, all the while having regard to employee welfare and the needs of your organisation. 

Strategy is a key element of a successful investigation. One important question to consider, especially when investigating a complaint, is when to interview the respondent. 
Investigation fundamentals
At its core, the purpose of a workplace investigation is to establish the facts of the incident or issue. 

Investigation plans are essential, and because every circumstance is unique, every investigation must have its own specially formulated plan. But every plan must have three common threads:

  1. Procedural fairness
  2. Gathering as much evidence as possible
  3. Ensuring that all relevant issues have been properly explored

Having regard to these three issues when planning the investigation necessarily involves a consideration of when to interview the respondent. There is no “one size fits all” answer, but there are a number of considerations that may help you make a decision about your approach.

Advantages of interviewing the respondent first

Interviewing the respondent at the start of an investigation has a number of advantages. 

For example, when an allegation is made, procedural fairness requires that an investigation is conducted in a timely manner. If the respondent admits the allegation straight away, the matter can be dealt with quickly and perhaps without involving other parties. 

This increases efficiency and minimises stress on the respondent and complainant. It also cuts down on management time spent investigating, and there is a greater chance of confidentiality being preserved because fewer parties are involved. 

In the course of an investigation, there will often be more than one interpretation about what has happened. There may be motivating factors of which you, or other witnesses, are unaware. 

Putting allegations to a respondent at the outset may provide new avenues for investigation that would otherwise have been unknown to you. For example, the respondent may have been provoked by another person. 

Interviewing a respondent at the beginning is a good way of getting all the cards on the table so that you can fully comprehend the issues and refine your investigation plan.

Disadvantages of interviewing the respondent first

Putting allegations to a respondent must be done in a way that does not undermine procedural fairness. One of the difficulties of interviewing the respondent first is that you are putting forward unfounded allegations. So special consideration must be given to the manner in which the allegations are presented. 

Putting forward unfounded allegations risks the respondent becoming upset or uncooperative, and may also make it difficult to narrow the key issues to be investigated. These things may increase the time it takes to investigate the matter. 

Another problem is that the employer is putting forward allegations without being aware of all the circumstances leading to the alleged conduct. This may undermine the investigation process – if new information later comes to light, the respondent has not had an opportunity to address it. This puts the reliability of the investigation under threat for lack of procedural fairness.

The employer could recall the respondent at a later stage in the investigation, but in the interests of fairness to the respondent and cost efficiency to the business, it is always a better course to interview each person just once. 

Another issue is the potential conduct of the respondent after being interviewed. If the allegations are denied, there may be a risk that evidence is tampered with or destroyed, or witnesses are colluded with or threatened. If you have already collected the evidence, there is less risk of this happening. 

The need for a strategy

When it comes to the timing of interviewing a respondent, there is no uniform answer for every situation. The best approach is to design a strategy to fit the circumstances. This is just one of the reasons why workplace investigations can be complicated and difficult. With experience comes increased knowledge, which is why workplace consultants are invaluable in navigating you and your organisation through the process.

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WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
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It's not always Black and White…...

- Monday, June 22, 2015
Think Employee Behaviour is Black and White?
Think Employee Behaviour is Black and White?
Sometimes, workplace incidents can seem straightforward to an employer – an employee has done something wrong, and action should be taken. But two recent cases before the Fair Work Commission (FWC) demonstrate the importance of properly investigating a matter and relying on sound evidence before taking action against an employee, and making sure that the action is an appropriate response.
Allegations of theft, and disproportionate action
In Amiatu and Others v Toll Ipec Pty Ltd, three employees took action against Toll for unfair dismissal. They came across an open box containing Toll safety uniforms. Surveillance cameras filmed them removing some of the uniforms and putting them on. They then went about their work. The following day, they worked their usual shifts, wearing the uniforms.

When Toll management became aware that the workers had taken the uniforms, it interviewed each of the workers and then spoke with the union delegate. Toll intended to terminate their employment for theft, and report the matter to the police. The union delegate persuaded Toll to allow the employees to resign, and convinced the employees to do so, despite their protests. The employees subsequently brought an action for unfair dismissal against Toll. 

The FWC found that they had been coerced into resignation by the threat of police involvement and poor future work prospects. The FWC also found that there had been no intention by the workers to steal the uniforms. They wore the uniforms in full view of other Toll staff and were also probably aware of the surveillance camera. They believed they had done nothing wrong, and had not made any attempts to cover up their actions. At worst, they had made an error in judgment by not following proper procedures to acquire the uniforms. Reprimands or warnings would have been more appropriate disciplinary action, the FWC found. 

Toll had failed to prove that theft had occurred. 

The FWC was also concerned that the union had so strongly encouraged the employees to resign when they had done nothing wrong. This effectively deprived them of adequate representation.

Although the FWC found no further significant issues with the investigation process, it would have been prudent for Toll to have conducted further interviews with each employee, with their representatives present, before any decisions were made about termination of employment and police involvement. 

The FWC found that the workers’ employment had been unfairly terminated and ordered their reinstatement.

The need for a proper investigation and sound evidence

In the case of Elton v Acupuncture Australia Pty Ltd, the FWC found that there was insufficient evidence to justify the termination of Ms Elton’s employment. 

Ms Elton worked for the employer (AA) in sales. Another employee had reported that she was behaving in a suspicious manner, printing out sales reports, rushing to the printer to collect them and then putting them in her handbag. AA looked into the matter, and found that a number of invoices had been deleted from the accounts system. AA terminated Ms Elton’s employment for engaging in “corporate theft and fraud involving cash, credit card, paypal and direct deposit.” It also accused her of acting with two former employees, and threatened to report the matter to the police.

Ms Elton denied the allegations and took action for unfair dismissal. The FWC accepted her explanation that she was printing out the reports to monitor her own performance. It also accepted that deleting invoices was a standard practice for cancelled orders, and that anyone could have done so. 

The FWC held that there was no evidence to suggest that Ms Elton had acted with the former employees, and that AA had failed to produce any evidence to support its claims of theft and fraud. Nor had AA made a police report. According to the findings, there were also issues with the investigation process, particularly that Ms Elton was not given a proper opportunity to respond to the allegations. Without warning, she was called to a meeting and the allegations were put to her. No documents were shown to her, either to justify the allegations or to seek her explanation. 

The FWC found that Elton had been unfairly dismissed. AA later appealed and the Full Bench of the FWC upheld the decision.
Implications for employers
These decisions demonstrate the need for employers to proceed with great care during investigations, especially ensuring that procedural fairness is adhered to every step of the way. Employers must also carefully assess the evidence against the allegations to ensure that there is enough proof to warrant disciplinary action. This can be challenging if the employer is very involved in the matter, as it can become difficult to make an impartial assessment .An experienced workplace investigator can be of great assistance in these situations, and it’s always a good idea to seek advice before a decision is made to terminate or discipline an employee.
NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates
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Want to Audio Record Interviews But Not Sure How?

- Tuesday, December 16, 2014
audio recording
Want to Audio Record Interviews But Not Sure How?

When you are called upon to investigate a workplace issue, the desire to get a clear and accurate picture of the problem is understandably strong. Recording the interviews seems like a good idea – you’ll have a word-for-word transcript and be able to concentrate more on the conversation. Yet it is important to consider a number of factors. Firstly – what are the legal issues around audio recording, secrecy and permission? Secondly, what sort of introduction is suitable to an investigative audio recording? And in terms of the resulting transcript, which kinds of requests are likely to arise? Recalling that procedural fairness must be at the heart of all workplace investigations, it certainly pays to do your homework before audio recording an interview.

Permission issues 

In many cases, interviewees will be quite happy to give permission for you to record the conversation. Others might be fairly reluctant or actually refuse to give recording permission at all. Knowing these variations, it might be tempting to simply record your discussions without permission. This is of course quite possible technologically. 

But is it legal? In Australia, the laws on improper and/or unlawful surveillance differ across jurisdictions, and it is important to understand the stance taken in your state or territory. In many cases, permission will be implied if the person is told of the recording and does not overtly object. Yet if permission is refused and a recording is nevertheless made – or is made in secret without any discussion – the material will almost certainly have been obtained unlawfully. Such recordings may nevertheless still be admissible in the federal jurisdiction (including the FWC) in accordance with the Evidence Act 1995 Cth. Admissibility will hinge upon elements such as whether or not the conversation was ‘private’, the probative value of the evidence, and the level of impropriety involved in the secret recording. 

Important introductions 

Once the tape is rolling (or device is capturing!) your first crucial task is to make introductions that are clear, welcoming and comprehensive. Everybody in the room should be given the opportunity to return your greeting, and state their name and work title for the record. You can also give a brief run-down of the purpose of the interview, giving participants a chance to ask any questions about the process. 

As well as helping everybody to find their bearings, such general chat can serve to ease everybody into the interview as they work out who’s who. And a further benefit will be the accurate identification of voices by the person typing the transcript. In the bid for accuracy, it is vital that the transcript represents a true record of ‘who said what’. If a subsequent transcript of the conversation reveals that the interviewee was uncertain, confused or pressured in any way, then the probative value of the material in future proceedings might be markedly reduced. Providing open, informative and clear introductions will help to ensure that procedural fairness is evident at all times within the workplace interview. 

Transcript uses 

After the workplace interview, the audio recording will be converted to a typed transcription. Request that the interviewee read and sign the transcript to confirm accuracy. But what if a person refuses to sign? Such a situation can arise for a number of reasons, not least of which can be that they are upset and shaken at having talked through the workplace issues. Yet, if we think logically – the entire discussion is there in aural form and can be accessed at future times, such as in court. This is why a transcript is in many ways superior to a statement from the interviewer constructed from written notes; arguments can be made that the interviewee was misrepresented in cases where only notes were taken. 

Be aware also that an interviewee might ask for a copy of the transcript. It is best to explain that, because the employer is coordinating the investigation, it is up to them to decide on what investigation materials might be given out. Importantly, privacy issues will be relevant. For example if a worker goes back to the office waving a transcript with people and incidents named therein, the investigation’s overall viability could be cast in doubt. 

Obtaining an audio recording of a workplace interview is an excellent idea. Accuracy will generally be high, assisting clarity throughout the investigation and beyond. Keep in mind best practice for recording permissions, introductions and transcript uses though – consideration of these variables will help to ensure that the overall quality of your interview is greatly enhanced.

Considering Cognitive Interviewing or Conversation Management?

- Tuesday, November 25, 2014
interview techniques
Considering Cognitive Interviewing or Conversation Management?

In carrying out workplace investigations, even the most seasoned investigators can grapple with selecting the right questioning techniques to use in particular circumstances. Choices can depend upon such variables as the nature of the alleged workplace problem, the character and cognitive make-up of each witness, and the amount of background information available to the investigator. In this article, we take a look at two valuable interviewing techniques: cognitive interviewing and conversation management. It can be demonstrated that proper use of these techniques will markedly heighten the quality and accuracy of the information collected. And such an outcome of course has significant repercussions for the standard of evidence that can be effectively incorporated into future actions.  

Cognitive interviewing – a massage for the memory 

In the early 1990s, psychologists Fisher and Giselman began to assist law enforcement officers to more effectively interview witnesses. Prior to this, the standard interview technique in police work was producing mixed results. It seemed that a fairly rigid investigation plan with conversation killers such as closed-ended queries and leading questions tended to taint the information gleaned. Utilising a number of techniques from psychological practice, the cognitive interviewing technique began to be introduced during witness questioning. Central to this was the desire to spark the memory in a way that would generate the most detailed and accurate data. 

Reinstating the context and enabling visualisation techniques can assist witnesses to recall past events. Simple strategies such as allowing the witness to close their eyes, draw a sketch, or think about their emotional state at the time the events occurred all aid memory recall. “Tell me everything that happened” may seem basic, but unless we explain the conversational rules at the start of an interview, we can’t expect a witness to automatically give us this information. Asking for the witness to go backwards in time also has the proven ability to jog the memory. Consciously going through key events in reverse order can have a sharpening effect on the memory, as the witness must set aside any rote story and concentrate more closely upon the details. Cognitive interviewing is all about finding open and creative ways to generate better recall. 

Conversation management – the careful testing of doubts 

One challenge for any workplace investigator is when open-ended techniques such as cognitive interviewing don’t appear to be working on a witness. Sometimes, despite utilising all available resources to heighten recall, hardly any useful information will be obtained. In such instances, conversation management can prove an effective way to reduce blocks and gaps that might occur in the interview. The existence of these frustrations – known as resistance – can tempt the workplace investigator to simply presume guilt. Surely, if a witness keeps resisting certain questions or appears to have gaps and inconsistencies during the interview, then they have something to hide? Or must be somehow dodgy? 

The danger in jumping to such conclusions is that the quality of the evidence drawn from the investigation might be irrevocably tainted by presumptive questioning. And the Briginshaw principle reminds us that evidentiary quality will be a key determinant of whether the balance of probabilities has been met. The beauty of the conversation management method is that it can assist in shedding light upon any doubts, in a way that is fair and respectful of the witness. The model combines open-ended questions with a framework for probing detail, enabling thorough examination of the account. It is important to bear in mind that gaps, oddities and behaviour changes might in fact be related to something other than deception, such as cultural differences, or trauma related to the incident. Conversation management provides research-backed techniques for getting to the bottom of any unclear or uncertain material.  

Widening our investigative toolkit

These two techniques – cognitive interviewing and conversation management – provide two different yet equally valuable tools for investigators to draw upon when conducting a workplace investigation. With no two humans alike, we will inevitably hit a brick wall or two when conducting our interviews in the workplace. Yet it pays to have a clear investigation plan for dealing with such eventualities, rather than winging it. If a witness becomes visibly confused, flustered or appears extremely uncomfortable in the process, then pushing on regardless might elicit low-quality material. With these and other proven questioning techniques in our investigative toolkit, we can certainly feel better equipped to delve into the vagaries of witness accounts. 

 WISE Workplace provides investigative interview training for HR managers and workplace investigators. Dates for 2015 are out now. 

Shades of Grey: Raunchy Material and the Lessons from Shea

- Tuesday, October 21, 2014
Lessons from Shea
Shades of Grey: Raunchy Material and the Lessons From Shea

In the recent costs hearing for Shea v EnergyAustralia Services Pty Ltd, Federal Court Justice Jessup helpfully took the opportunity to summarise the findings of Justice Dodds-Streeton regarding the original unfair dismissal proceedings. There, Ms Shea had unsuccessfully sought relief against alleged adverse action on the part of her employer. 

In a bad light

 Ms Shea’s accusations were substantial and relied upon various sources of information for purported corroboration. In his findings against the applicant, Justice Jessup spoke with evident disapproval regarding both the quality and the means of acquisition of Ms Shea’s evidence. Of particular note, sexually explicit text messages between two staff members had been retrieved forensically by Ms Shea as purported proof of sexual harassment in the workplace. His Honour stated that Ms Shea’s methods of obtaining both the phone and text messages ‘did not show her in a good light’, aligning with the substantive trial judgement as to the ‘irregular’ nature of the acquisition [57-58]. 

Unseemly acts 

But the inadmissibility of the texts – and the resultant forensic report – was not the only issue in question. Justice Jessup quoted with approval the original finding of Justice Dodds-Streeton – the text messages represented nothing more than ‘a private exchange between consenting adult sexual partners’ [quoted at 56]. Further, this private nature actually placed a duty of confidentiality upon any readers of the texts. 

Thus, not only was the material found to have been obtained abnormally, usage of the forensic report was both irrelevant to the workplace issue at hand, and malicious in nature. His Honour went even further in his disapproval, noting the ‘unseemly manner’ in which the phone was obtained, with a very obvious agenda in play to cause ‘embarrassment and humiliation’ to the other party [59]. 

Eyes on the court

In administrative proceedings, the rules of evidence don’t formally apply. So there is a sense in mediations, conciliations and reviews that parties can place it all on the table in order to find resolution. The idea here is that people can often experience a greater sense of procedural fairness in a less formal environment. Yet Shea reminds us of the considerable pitfalls that can occur in court proceedings when undetected irregularities have coloured earlier processes – inadvertently or otherwise. It is crucial that internal and external workplace investigators establish quality control mechanisms throughout all stages of information collection. Keeping any future court proceedings front of mind can assist investigators in overcoming the kinds of evidentiary taints that befell the applicant in Shea.   

Quality counts 

And where certain key material can only be collected in an unusual manner, corroboration of the information obtained can assist in enhancing overall quality and future admissibility. Potential evidence should be free of irregularity, irrelevance, confidentiality breaches and/or personal agendas. Certainly, administrative processes won’t require the stringent attention to rules of evidence that apply in court. Yet the ‘juiciest’ piece of information brought out at in an administrative forum might well become the trial stage’s most useless piece of scurrilous and ultimately inadmissible evidence. Worse – if found to be obtained for personal or ‘unseemly’ reasons, a hefty costs ruling is certainly a possibility for the parties involved.

How to Interview Witnesses in Workplace Investigations

- Tuesday, June 10, 2014

How to Interview Witnesses in Workplace Investigations

Interviewing witnesses is a crucial part of any workplace investigation but it can sometimes be difficult to extract reliable evidence. According to the rules of evidence, hearsay, opinions and assumptions are not admissible in court and you should avoid using unsound evidence to make a decision on allegations of misconduct in the workplace.

There are a number of potential issues that investigators should be aware of when they are interviewing witnesses in relation to a workplace matter. Here are a few guidelines to help you make sure you get the most accurate and relevant information when interviewing witnesses.

Seek explanations for assumptions

When interviewing it’s important to probe any offhand statements or assumptions that the witness may state. Asking why they believe something happened can reveal useful information or direct evidence and also can indicate weaknesses in the evidence. As memories can fade over time, it’s important that you gather as much information and explanation for the different behaviour as possible. If it is revisited at a later date, the witness may have forgotten the details

Take a wider view

Make sure you look at and ask about all the background circumstances which surrounded the alleged incident. This can often provide useful context for the allegations and any resultant behaviour on the part of either party. In many cases an apparently straightforward issue can be indicative of a wider problem and taking the background circumstances into consideration can give investigators valuable insight.

Learn the signs of avoidance

Often if someone has something to hide, they will avoid answering a question directly. As an interviewer, knowing the signs of avoidance can alert you to the fact that someone is trying to hide information. Ensure that your interviewee tells you what did happen rather than what should have happened or what ‘would have’ happened under different circumstances.

Interviewing witnesses for a workplace investigation can take patience but it is important that any evidence which is used to make a final decision complies with the rules of evidence. If there is a dispute over the final outcome of an investigation and the matter goes to court, any evidence or witness statements that aren’t admissible won’t be taken into consideration. This could lead to a reversal of any decisions made and extensive legal costs.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

What is Admissible Evidence

- Monday, May 26, 2014

What is Admissible Evidence

When you are conducting a workplace investigation it’s essential that for any allegations to be upheld, there is evidence to prove them. Whatever evidence is used should be compliant with the rules of evidence – this is known as admissible evidence. Using admissible evidence ensures that if the matter is later disputed and ends up at court, it is much less likely you will face legal costs and/or a reversal of any decisions made.

Records and documentary evidence

To be admissible, evidence has to be the “best that the nature of the case will allow.” When it comes to submitting documentation or electronic records, original documents are required unless there is a compelling reason for the absence of an original. Copies of documents, especially if they have been stored on a computer or other electronic form may not be given as much credence as originals as they could have potentially been altered or tampered with. Where possible it’s important to keep copies of original documents in case they are needed in future.

Witness statements and assumptions

Direct evidence from witnesses should be based only on what the witness saw, heard, felt, smelt or tasted. Opinions and thoughts are not considered admissible evidence unless the person involved is considered a credible expert. As well as avoiding opinions when gathering direct evidence from witnesses, it’s important to avoid assumptions, either on your part or on the part of the person you are interviewing.

Assumptions often stem from drawing a conclusion about a person or situation based on what someone thinks has happened. Unfortunately assumptions are often inaccurate and if used as the basis of a decision could lead to repercussions. When interviewing witnesses it’s important to seek clarification and explanations for any assumptions they make. If they can’t provide direct evidence to support an assumption there is a strong chance it won’t be considered admissible evidence.

Inadmissible evidence, even though it can’t be used in court, can still serve a purpose. In some cases inadmissible evidence can lead to the uncovering of admissible evidence and in other cases it can add context and understanding to admissible evidence which might not make sense on its own.

All workplaces should be aware of the need to preserve direct evidence such as original copies of performance reviews, incident reports and disciplinary interviews. If you are investigating a workplace matter and interviewing witnesses it’s important to understand the difference between admissible evidence and assumptions or opinions so you can ensure that the information gained is accurate and likely to hold up in court.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

Why Do the Rules of Evidence Matter in Workplace Investigations

- Tuesday, May 20, 2014

The rules of evidence are a set of guidelines which are commonly used to decide what types of evidence are admissible in court and what can be used to prove or disprove an allegation. As workplace investigations do on occasion end up in court it’s important that any evidence used to decide a claim is based on sound legal principles and will hold up if tested by the legal system.

Terminating or otherwise penalising an employee or manager without adequate evidence can lead to very serious legal proceedings and extensive costs for your organisation. By ensuring that any investigations you undertake are compliant with legal considerations you have the best chance of protecting yourself as well as your employees or managers and ensuring a fair and reasonable outcome for everyone.

The importance of relevance

Relevance is a fundamental consideration when it comes to assessing the evidence for any investigation, whether it is a minor matter or something more complex. For evidence to comply with the rules and to be admissible in court there must be a logical connection between the facts which are at issue and the documentation or statements used to determine them.

It can be easy to be swayed by irrelevant facts, especially if you have a personal relationship with the parties involved. If you are dealing with a manager or employee who is generally known as a ‘difficult’ person it can be hard not to let knowledge or information about previous unrelated behaviour affect your assessment of a particular incident which you may be investigating.

What happened vs what can be proved to have happened

When gathering evidence or deciding any workplace matter it’s important to be aware that there is a difference between what happened and what can be proved to have happened. Even though something may be ‘common knowledge’ if there is no evidence to prove it, then according to the rules of evidence, it didn’t happen.

As an investigator it’s essential not to confuse what ‘everyone knows’ happened with what can actually be proven and documented to have happened. This is where the evidence gathering part comes in. Any conclusions you come to at the end of your investigation need to be based on what can be proved to have happened, even if everyone knows this is not what actually happened. .

Applying the principles of the rules of evidence to every investigation can help protect your organisation and safeguard your employees. .

Written by Vince Scopelliti from WISE Workplace  Melbourne office