Guarding the Vulnerable: Reporting Obligations in Focus

Vince Scopelliti - Wednesday, July 25, 2018

With the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse, Australian organisations are now on notice in relation to their ongoing child protection reporting obligations.

Mandatory reporting of particular conduct or convictions is a strong means of ensuring that those who care for the most vulnerable in our community, do not slip through the regulatory net.

We examine the nature and extent of these obligations, as an ongoing reminder of the importance of safeguarding children and other vulnerable individuals within organisational contexts.

Different states, different rules 

One of the difficulties that has hampered a national response to child abuse and neglect is that due to Australia being a federation of States, there can be slight differences in the reporting requirements between State jurisdictions. This leads to the possibility of uneven treatment between organisations that are mandated to report alleged child abuse.

As a result, employers should be vigilant in adhering to the reporting obligations applicable to all organisational operations, both between and across State lines. Effectively identifying and reporting the types of behaviour that require mandatory notification is an ongoing challenge across Australia - but certainly a battle that is worth continuing, considering what is at stake.

This article focuses on reporting obligations in NSW. 

Reportable conduct

Under s 25A of the NSW Ombudsman Act 1974, the nature of reportable conduct is clearly set out. Alleged conduct by an employee or prescribed volunteer that involves child sexual assault or misconduct, child abuse and/or neglect must be reported to the Ombudsman as soon as practicable by all agencies covered by the Act.

An employer's knowledge of an employee's prior conviction for reportable conduct must also be brought to the notice of the Ombudsman. Less well-known conduct such as grooming and crossing boundaries by an assailant are also covered, and employers should take care to understand the breadth of the behaviours in question.

Mandatory reporting

Under the legislation, it is mandatory for employers within three organisational types to report any alleged notifiable conduct.

These organisations are defined in the Act as designated government agencies, all other public authorities, and designated non-government agencies (such as schools, childcare centres, out-of-school-hours services and agencies providing substitute residential care).

The latter group provides examples only, and employers should examine closely whether their organisation is, in all likelihood, an entity that falls under this third grouping. Businesses or agencies who are uncertain about their reporting obligations should seek immediate professional advice regarding their status under the Act.

when do obligations arise

It is not necessary for employers to have firm evidence about notifiable conduct prior to contacting the Ombudsman. Any allegation of reportable conduct should be notified as soon as the information comes to hand. Waiting until a clearer picture or more facts can be established before reporting is not advised. There is much more risk in 'waiting it out' than there is in making a premature notification: the safety and wellbeing of children must of course be placed front-and-centre in all deliberations by employers.

Who to report to?

The Ombudsman provides information and reporting advice for NSW employers in relation to mandatory notification of alleged child abuse. If any doubt remains at all in specific circumstances, it is essential that employers seek advice on the extent and nature of their obligations. For those employees who are not at the higher rungs of an organisation, it can certainly be difficult to ascertain who to tell if child abuse or neglect is suspected. Depending upon the circumstances, involvement of Police or the Office of the Children's Guardian might be necessary alongside those mechanisms mandated by the Ombudsman.

internal processes

It is not always the case that business owners or senior management will be aware of child-related reportable conduct that requires immediate notification. For this reason, it is essential that appropriate procedures are put in place to ensure that all employees are aware of mandatory reporting obligations.

Training on the practical requirements for reporting an employee or volunteer should be regularly provided and updated. Child safety is necessarily an organisation-wide issue and time can be essential if an individual finds themselves in a situation where abuse is suspected.

WISE provides Investigating Abuse in Care training which is specifically developed for organisations dealing with vulnerable clients. This is designed to meet the needs of investigators of child abuse in line with the recommendations of the Royal Commission into Institutional Response to Child Sexual Abuse. Alternatively, we are highly experienced at investigating reportable conduct matters, through our investigation services.


Managing Complaints - How To Find The Positive

Vince Scopelliti - Wednesday, June 13, 2018

When an employee complaint alleging workplace discrimination or harassment is lodged, it is usually seen as a negative moment in the life of the organisation.

However, it is possible for an employer to view this as a positive phenomenon, rather than a sign of complete failure. This is because well-handled complaints can illuminate hidden corporate weaknesses, as well as any lurking issues affecting staff morale or motivation. Such information can become a valuable catalyst for positive change across the broader business - a win-win for internal and external stakeholders alike.

Best-practice in complaints handling is dependent upon a structured complaints process that includes two key ingredients: the quality of investigation process and the structure of the complaints process itself.

1. A thorough high-quality workplace investigation is an essential tool in the management of internal complaints, including allegations of discrimination and harassment.

2. The structural framework of internal complaints policies and procedures will necessarily be clear, accessible and well-publicised. A well-managed complaint can be a good news story not only for the people involved, but for the broader success of the business.

INVESTIGATING DISCRIMINATION AND HARASSMENT 

When an employee complains that they have been the subject of discrimination or harassment, it is highly likely that there will be differing opinions and perspectives as to whether or not this is actually the case.

As a result, best-practice workplace investigation requires fair, open and even-handed treatment of all who are involved in the investigative process. Further, it is important for investigators to move at a reasonable and logical pace, first making preliminary enquiries before deciding on any next steps.

But what does a good investigation mean on the ground? One key concept is procedural fairness. This means that parties involved are equally able to access the process, to be heard in a substantive way and to be given a fair opportunity to understand and respond adequately to any claims made against them. Under procedural fairness parties have the right to an impartial decision-maker and to having a support person present during their interview. Professional investigators must be seen to be unbiased in every phase of the workplace investigation.

Added to this, a high-quality workplace investigation will ensure that all relevant and reliable evidence has been carefully obtained, anaylsed and included appropriately in the final report. There can be no room for short cuts or preferential treatment in workplace investigations.       

Robust complaints policies and procedures

Employers, investigators, complainants and witnesses alike should ideally all have access to a durable set of internal policies and procedures covering common areas of complaint.

A strong policy document detailing how and to whom to make a complaint should be accessible, user-friendly and up-to-date. The policy should also direct the reader to one or more procedures that need to be followed in the event that an alleged instance of harassment or discrimination has occurred. This is often a time of great stress, and instructions to complainants should be clear and helpful.

Internal policies and procedures that are complicated, badly written or tucked away in a dusty filing cabinet are of little-to-no assistance to the individual seeking to make a complaint.

This is why good investigations and good complaints policies go hand-in-hand: even the best investigator will struggle to keep things fair if complaints policies are convoluted or absent, or if procedures leading up to the investigation are sub-optimal.

Perhaps most importantly, managers and employees should be trained in practically accessing and using these documents, at all stages being assured that complaints are taken seriously and are indeed welcomed by the organisation.

Step by step pathways

A sound complaints process begins with employees first being made aware of a useable and fair pathway for their grievance. A good internal complaints system will work step-by-step through a logical process. This means initially providing clear and succinct information on the nature of common complaints, some definitions where appropriate, the bigger picture of the complaints process and - perhaps most importantly - who to speak with in the first instance about the particular concern.

An internal complaint is a golden opportunity for employers to gain important information about people and workplaces. For this reason, the internal complaints system should be presented in a simple, cordial and helpful format.

Problems arise every day that require the existence of an effective complaints and investigations pathway. Thankfully many complaints can be quickly and easily resolved. However, if you need to undertake investigations or a review of your HR policies, and want to ensure you are conducting it with best practice, our training is developed by investigators for investigators. Contact WISE today to find out more.

Failing to Involve HR and Other Investigation Mistakes

Vince Scopelliti - Wednesday, May 16, 2018

Being able to conduct a competent workplace investigation is essential for employers, especially when allegations of bullying, misconduct or inappropriate office behaviour are made. 

Mistakes made during an investigation may result in serious consequences, including legal action. 

Let's take a look at the basics of an investigation, and some key mistakes to avoid.

WHy are workplace investigations necessary?

Workplace investigations are used to establish whether conduct or incidents occurred as alleged by the complainant, and to ensure that appropriate action is taken. 

Investigations are necessary when:

  • An employee may have engaged in behaviour which could result in disciplinary action or termination;
  • Complaints or reports of inappropriate conduct are received;
  • Allegations have been made by one staff member against another - such as claims of workplace bullying, harassment or unreasonable performance management.
  • There is evidence of breaches of safety provisions or other procedures.
  • There are allegations of child abuse. 

what does an investigation involve?

An investigation involves the unbiased gathering and evaluation of relevant and objective evidence, for example by interviewing witnesses and involved parties, reviewing documentary evidence, and or doing a site inspection. 

The conduct, once it established that it occurred, is then measured against the organisation's policies and procedures, Code of Conduct, regulations or legislation, to determine whether a breach has occurred.

what are some key investigation mistakes?

Significant mistakes which can occur during an investigation include:

  • Failing to consider all the relevant evidence - for example, by failing to interview all relevant parties, not asking appropriate questions or failing to document all information collected;
  • Appointing the wrong investigator - for example, by appointing an investigator who is not seen to be independent or who lacks experience in conducting workplace investigations; 
  • Not reporting a complaint to Human Resources and a failure to seek advice;
  • Not allowing the participants procedural fairness by failing to inform them accurately of the complaint against them, failing to give them adequate time to prepare a response or failing to inform them of their right to have a support person present. 
  • Failing to anticipate all the potential risks that could arise during an investigation
  • Failing to provide appropriate notification to all the relevant parties; and
  • Breaching privacy obligations 

so, who should investigate?

The appropriate person to investigate is often determined by the nature of the complaint or allegation - depending on the situation, it may be appropriate to have a senior manager or a member of the Human Resources department review an allegation. 

Avoid actual, perceived or potential conflicts of interest. The investigator must be a neutral party, not someone who is closely connected to the matter, who has had prior involvement in it, who has a direct interest in the outcome or may be a witness in the matter.

When determining who to appoint as an investigator, it is also crucial to assess who has the right level of experience and appropriate skills. 

This was highlighted in a High Court case involving Patrick Stevedores, where an HR manager was appointed to conduct a serious misconduct investigation. However, her lack of experience meant that she failed to gather crucial evidence supporting the dismissal of an employee - who was ultimately found to have been unfairly dismissed.

Should an external or internal investigator be appointed?

In some circumstances, it may not be appropriate to investigate a complaint in-house. Some reasons to appoint an external investigator include; 

  • Internal staff may lack the required skills or knowledge;
  • There is insufficient internal capacity to focus on an investigation; 
  • Allegations have been made against a senior employee, who in other circumstances may be the one tasked with an investigation; 
  • There are concerns an internal investigator may be perceived as being biased and a higher level of neutrality and objectivity is required.
  • The issues raised are complex and/or involve a large number of people in the organisation or significant external oversight. 

If the allegation involves an internal procedure or a matter involving particular expertise (such as a medical incident occurring in a hospital) then it may be more appropriate to engage an internal investigator, or have both external and internal investigators working together. 

Risks of an investigation being conducted incorrectly

There are many situations in which a poor workplace investigation can have serious consequenced for a business. It can lead to adverse legal action - such as in the Patrick Stevedores case. It can also result in serious mental health implications for staff who are unfairly treated during the investigative process, with a subsequent increase in resignations or terminations. It can also result in failure to meet legal or procedural requirements set by external oversight bodies. 

Lesson for employers

When making decisions in relation to workplace investigations, employers should:

  • Ensure that employees are aware of existing internal policies about harassment and discrimination and conduct regular training in these areas;
  • Have a regular system for updating and reviewing policies and procedures, including complaints procedures;
  • Select an appropriate and impartial investigator;
  • Respond promptly and undertake enquiries in relation to each complaint or allegation to determine whether a formal investigation is required;
  • Evaluate all facts with a view to reaching an adequately reasoned conclusion in the circumstances of an allegation;
  • Inform the parties involved of the outcome of the investigation.  

Are you concerned about a lack of knowledge or the risk of making mistakes in your workplace investigations? WISE Workplace is able to offer both full and supported investigation services. In addition, we can train your staff in how to conduct effective workplace investigations.

Improving Your Investigative Interviewing Skills

Vince Scopelliti - Wednesday, March 21, 2018

To any outsider, the job of investigative interviewing seems fairly straightforward - questions are asked and then answers are provided. Yet as we know, the job of interviewing parties in the course of a workplace investigation can be anything but simple. 

For example, the investigative interviewer must ensure procedural fairness at every step along the investigative pathway. And this raises other questions, such as can the venue of the interview impact upon fairness? Why is building rapport a key element of investigative interviews? Should I audio record?

With challenges and variables scattered throughout most investigations, it is necessary for interviewers to be skilled in the core techniques required for fair and productive outcomes. A good workplace investigator never stops refining the skills of the trade.

THE interviewing basics

Procedural fairness requires an investigative interviewer to approach the task with transparency, objectivity and care. For example, any notable bias in the way questions are asked could taint the results of the investigation. It is also essential for the interviewer to explain clearly to the witness the 'what, why and how' of the interview process before questioning begins.

Building rapport is an essential skill when conducting an effective investigative interview. Rapport is the connection created to ensure an understanding of a person's thoughts and feelings, so that effective communication can take place. 

An interviewer might offer a choice of seating, pour some water, ask about the weather outside - just as examples. The right words and actions will be gleaned from the individual characteristics of the witness. Such simple and polite techniques at the commencement of the interview can go a long way towards allaying fears and creating a more comfortable space for questioning. 

Similarly, choosing the right venue can have a surprising effect on the overall atmosphere and quality of proceedings. Questions one might ask oneself as an interviewer include: Is it appropriate to speak with this particular witness on-site? Will we have sufficient privacy? Is there a basic level of comfort? An inappropriate venue for the investigative interview can cause unnecessary distractions and discomfort; neither of which assist in producing high-quality evidence. 

to audio record the interview or not? 

One key issue to consider is this - will you record the interview or take a statement, or simply take notes? An audio recording has obvious advantages, such as providing a word-by-word account of the interview. It is, however, vital to research any particular legal requirements within your state or territory about the need to obtain consent from the interviewee to record the conversation. An audio recording of the investigative interview should demonstrate a strong and professional structure to the interview, as well as a fair approach taken to the witness. When and how to record an investigative interview can be a tricky variable to consider, and at times might require expert advice.

the peace-ful investigative interview

In the 1990's, a selection of British law enforcement officers came together in order to find a better approach to investigative interviews. They identified the need for a strong but flexible alternative to current questioning techniques. The PEACE model of interviewing was born, and it has proven invaluable to investigative interviewers. 

Five key concepts make up the acronym:

P - preparation and planning - Do you have a good list of potential questions and a thorough understanding of the scope of the investigation?

E - engage and explain - Have you built rapport, explained all procedural issues to the interviewee and provided an opportunity for questions?

A - account, clarify and challenge - Have you allowed the witness to answer responses fully, without bias or suggestion? Have you sought to clarify concerns and challenged any discrepancies in a professional manner?

C - closure - Did the witness have an opportunity to ask, clarify and add further to the interview where appropriate? And if so, have you explained any next steps and thanked them for their time?

E - evaluation - In listening to or reading back the interview, how would you evaluate the substance, quality and fairness of the process? 

The PEACE model is a great tool for mapping out key aspects of an investigative interview, thus ensuring that nothing is missed in your witness statements. 

suggestibility and free recall

Psychologists consider that every person will have a particular level of suggestibility, which can change across their lifespan. Suggestibility is the extent to which we can be persuaded to 'fill in' our memory through the suggestions of another. Children for example are particularly vulnerable to such prompting in an interview setting. 

Psychological concepts such as free recall demonstrate that memory can be affected by factors such as the timing and positioning of details as they are laid down as memories. Investigative interviewers need to take great care not to ask questions in a way that might sway or alter the facts as provided. 

Conducting investigative interviews is almost always a challenge. For more tips on how to effectively undertake interviews, purchase our book Investigative Interviewing: A Guide for Workplace Investigators, or alternatively, we provide on-site training in investigative interviewing, which can be tailored to the needs of your organisation.   

Inside the Fair Work Commission: How it Operates

Vince Scopelliti - Wednesday, March 14, 2018

Most employers and employees are likely have at least some contact with the Fair Work Commission (FWC) during their working lives. 

This might be as simple as obtaining information about award conditions and employee rights, or as contentious as appearing before the FWC in a workplace dispute or unfair dismissal matter.

So how does the Fair Work Commission work?

The basics of the fwc

The FWC is the national workplace relations tribunal. Created by the Federal Government, it is an independent body that oversees a range of employment-related matters.

Its members are independent office holders who are appointed by the Governor-General on the recommendation of the Federal Government. Members work in a panel system, which aims to ensure that matters are heard by members with specific expertise in the relevant area. 

The FWC is not to be confused with the Fair Work Ombudsman, whose role it is to enforce compliance with the Fair Work Act and associated legislation, as well as provide advice to employers and employees on industrial relations matters. Unlike the FWC, the Ombudsman cannot conduct investigations or hearings.

what matters does the fwc deal with?

The FWC has the right to make decisions on a wide range of employment issues, including:

  • Determining minimum wage and working conditions
  • Hearing disputes in relation to unfair dismissals or other disciplinary actions
  • Making decisions in relation to appropriate industrial action
  • Conducting and facilitating alternative resolution methods in relation to general workplace disputes and workplace protections  

When making decisions, the FWC is required to take into account factors such as:

  • The principles of equity and good conscience
  • An assessment of the merits of the case before it
  • Avoiding any type of discrimination in the workplace, whether that be sexual, religious, disability or age based, to name a few

how to get a matter heard before the fwc

In order for a matter to be heard by the FWC, an appropriate form needs to be submitted in accordance with the applicable Fair Work Commission Rules.

In certain circumstances, such as when conducting reviews into awards or wage reviews, the FWC is empowered to launch its own action. 

fairness a key focus of hearings

The FWC is obliged by legislation to facilitate reasonably swift actions, and operate informally - without resorting to complicated legal concepts which could make it difficult for the ordinary worker to participate in proceedings. 

One of the central tenets of the FWC requires that hearings be conducted impartially and fairly. During hearings, the members are required to determine the facts and make decisions based on the information put before them. Ultimately, the main purpose of a hearing is to facilitate dispute resolution between the parties. 

Can the FWC dismiss an application? 

An application may be dismissed outright by the FWC in circumstances where it is:

  • Frivolous or vexatious
  • Contrary to the applicable legislation
  • Doomed to fail
  • Clear that one of the parties has unreasonably failed to attend hearings or comply with orders or directions of the FWC. 

What the FWC can't do

Despite being a quasi-legal body, the FWC is not entitled to provide legal advice, or assistance.

It is also not permitted to act in a partisan fashion by representing any particular political party. It must focus on impartial and objective decision making.

Do you need assistance in dealing with the FWC?

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct across government, education, not-for-profit and private sectors. 

We are proud that none of our decisions have been challenged by the FWC. If you are looking for assistance to navigate the challenging issues of workplace misconduct, we provide investigation services and training - Contact WISE today.  

Conducting Workplace Investigations: What You Need to Know

Vince Scopelliti - Wednesday, January 31, 2018

Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time. 

Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings. 

So, what are the most important things you need to be aware of when conducting a workplace investigation?

understanding why an investigation is necessary

All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission. 

Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable. 

Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.

how can your human resources team support you?

If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation. 

Your HR team can facilitate a successful investigation by:

  • Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
  • Providing a clear timeline and outline of processes;
  • Ensuring that staff are aware of their rights to have support persons involved;
  • At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.  

fact finding vs formal investigation

Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis. 

A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.

The need for procedural fairness 

A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness - a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.

The key elements of procedural fairness include:

  • Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
  • Permitting a reasonable amount of time for the employee to respond to the allegations;
  • Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
  • Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
  • Ensuring that decisions effecting the employee are based on evidence. 

So what is involved in conducting a workplace investigation?

The key elements of an effective investigation include:

1. Planning the Investigation

  • Adequate planning before the investigation starts, including considering any potential conflicts of interest;
  • The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
  • Preparing a list of interview questions for each witness;
  • Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
  • Notify all parties of there involvement, rights and obligations. 

2. Interviewing

  • Provide sufficient notice and make appropriate arrangements with all witnesses
  • Conducting formal interviews objectively and sensitively, having regard to the circumstances;
  • Checking that representation or support has been offered and outlining the investigation process and timeline;
  • Obtaining as much detailed evidence as possible

3. Analysing and Weighing the Evidence

  • Assessing the evidence with regard to reliability, consistency and credibility;
  • Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
  • Coming to a conclusion and making a finding, based on the evidence gathered. 

4. Facilitating a Resolution

  • This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling. 

When to ask for help

The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive. 

In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process. 

This could include situations where: 

  • Serious allegations are made and there is a potential risk of criminal or civil litigation;
  • Complaints are made against senior employees;
  • A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally; 
  • There is a need for legal privilege to cover the circumstances;
  • There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge. 

If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations. 

Does the NDIS Complaints System Have Enough Reach?

- Wednesday, March 08, 2017


For those vulnerable people across Australia living with disability, the introduction of the National Disability Insurance Scheme (NDIS) has been heralded as a much-needed security net. And for those caring for disabled individuals, the NDIS provides a framework for sustainable care arrangements. 
 
In many ways, the introduction of the NDIS is the ultimate ‘good news’ story. Essential services and funds for disabled individuals can now be accessed. Particularly, the types of care that exhausted families have provided around the clock can now be augmented by paid carers under the scheme. 

Yet such a vast and complex scheme necessarily requires safeguards against unfortunate phenomena that can arise in care environments, such as child abuse, elder abuse or other forms of abuse by carers. 

A responsive and effective complaints system is an essential adjunct to the NDIS, which will eventually sustain some 460,000 disabled Australians under the age of 65. As at February, 61,000 Australians have been brought into the scheme.

How the NDIS complaints system operates

The NDIS complaints system is intended to help participants in the scheme provide feedback, or make complaints about their own experiences or the system in general.   

There is some concern, however, that the complaints system is a somewhat toothless watchdog. Individuals suffering with a disability can lodge a formal complaint about a care provider, for example, but the care provider can at most be removed from the list of scheme-approved providers. There is no mechanism under the system for more significant sanctions.    

This may be appropriate in circumstances where the care provider has simply provided poor treatment or has an unpleasant manner or clash of personalities with the recipient of care, but falls far short of the mark in circumstances where, for example, there is abuse or unexplained injury.  

On such occasions, the scheme participant may have to look to other procedures to try and address any serious grievances.

What other mechanisms for complaint are available?

In NSW, if a person living with a disability in a residential facility suffers a reportable incident at the hands of a care service provider, that incident must be investigated and reported to the appropriate Ombudsman, in accordance with the Ombudsman Act 1974.

A reportable incident includes the commission of sexual offences or misconduct (including those committed in the presence of the person suffering the disability), assault, fraud or financial abuse, and ill-treatment or neglect by a carer. Unexplained injuries also fall within the same category of reportable incidents.  

However, this only covers those clients who are living in residential care – and misses the many participants of the NDIS who rely only on in-home services.  Similarly, there is no legislation which provides any requirement for a ‘suitability to work with disability services’ check, unlike the child protection legislation now effective in NSW, the ACT and Victoria. 

Those utilising aged care services are able to rely on national reporting schemes, but regrettably even a carer who has been conclusively found to be abusive or otherwise guilty of misconduct is not restricted from being able to obtain employment with another care service provider in the future.
 

Effectiveness of the system still uncertain

Given the potential risks of abuse within the system of allocating a carer to a disabled Australian, it is essential that the NDIS is paired with an effective and efficient complaint and resolution scheme. 

Ultimately, the current NDIS complaint service has significant room for growth before it can be considered to be effectively safeguarding the rights of disabled Australians. True improvement will play out most importantly by imposing greater penalties and consequences on carers who are found to have transgressed against their clients in any serious fashion. 

As the NDIS matures as a scheme, it is to be hoped that many teething issues with the complaint management system will be ironed out naturally.  

However effective investigation of incidents relating to abuse as soon as they are reported or otherwise come to light will remain the most important safeguard of the rights of disabled Australians, along with general prevention of potential abuse or misconduct by carers through a strong governance and policy regime.   Contact us about our specialised Investigating Abuse in Care training courses.  

Should You PUKE? Deep Listening in Workplace Interviews

- Tuesday, December 02, 2014
Deep Listening
Should You PUKE? Deep Listening in Workplace Interviews

To the untrained, the skills needed to carry out effective interviews in a workplace investigation are simple – find a room, ask questions, then get the answers. Yet as any professional workplace investigator knows, the quantity and quality of information that you glean in any investigative interview can vary significantly depending upon the techniques that are used. The field of interview techniques is vast, and the excellent ‘free recall’ approach is just one of the methods that can be particularly useful to workplace investigators. Forensic psychologist Dr Becky Milne from the University of Portsmouth coined the term PUKE – Pure Unadulterated Knowledge Extraction – to highlight the essence of the free recall approach. As the terminology infers, this is a method of investigative interviewing which in many ways requires little or no questioning from the workplace investigator. Sound odd? Read on to learn more about the benefits of silence in the interview room. 

Setting the stage
An effective interview based upon PUKE – or free recall – requires an incredible amount of preparation beforehand. Milne herself states that the end goal of such a technique is essentially the no-question interview, where a witness simply tells their story. To set the scene for such hands-off elicitation of evidence, first ensure that the witness is comfortable and unlikely to be distracted. It’s amazing how thirst, no tissues, nerves or nature’s call can break the flow of a free recall interview setting! Adopt a demeanour that is professional but not overly formal, and explain the purpose for the interview. The information that you provide at this point can be crucial to the extraction of high-quality data and evidence throughout the substance of the interview. For example, summarise your knowledge to date, such as: “From what I understand, there seems to have been some sort of altercation in the lunchroom on Friday.” Then try to convey that there is no rush, and that you are looking forward to hearing their version of events. 

Total recall 
Humans like to talk. And professionals like to talk a lot! So the art of free recall or PUKE interviewing involves the workplace investigator actively redirecting that normal talkative energy into deep listening. Having set the scene, you can now take a couple of tacks. One is to keep your body language open and simply ask: “Can you tell me what you recall about the event?” A prequel to this is to first take the witness through a relaxation task, along the lines of “Close your eyes… picture the lunchroom in your mind. See all the details of the room. Recall last Friday, when you went in there. Now let me know what you experienced next” or similar. Once your witness is talking, there are a few excellent PUKE techniques to keep the flow going. Make sure that you maintain open body language as far as possible. You may be taking notes if a recording is not underway  – but do try to maintain non-confrontational eye contact. Interestingly, adult humans can feel uncomfortable simply talking without any prompting questions. Yet the more you can keep the witnesses narrative going without interruption, the better. Remember you want ‘Pure Unadulterated Knowledge Extraction’. Too many inquisitive questions can be just the adulteration that you don’t need! Try some encouraging gestures and nodding if the witness seems to have stalled. A simple “Yes?” or “And then…?” can help to move things along. 

Should you try PUKE-ing? 
Absolutely. In fact, adopting a well-constructed free recall interview can be the difference between a useful and a flawed workplace investigation report. Should the matter later go to court, the standard in Briginshaw comes fully into play. That is, the existence of enough low-quality evidence can mean that the balance of probabilities will not be met in some cases. Free recall interviewing reduces the chances of procedural fairness being hampered, in that the PUKEd information flows freely from the witness. It is so easy to have the appearance of bias and pre-judgement enter unwittingly into questioning, particularly if the witness has clammed up, or you have allowed your frustration to show. This might just be via a leading question: “At what time did you hit David in the lunch room?” Or, it might be through an inadvertent show of bias: “Well, three other workers seem to think that’s a bit silly – you?” There certainly is an art to conducting an investigative interview in the workplace context. By applying skills such as the free recall PUKE approach, the quality and consistency of workplace investigation interviews and reports can be vastly elevated.

Obtain cognitive interview strategies and learn how to PUKE by booking a place on one of our short courses. 2015 dates for our Conducting Workplace Investigations – Advanced and Investigative Interviewing courses are available now. 

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. 

How Do I Know Whether to Mediate or Investigate?

- Tuesday, November 11, 2014
mediate or investigate?
How Do I Know Whether to Mediate or Investigate?

The number and type of differing workplace problems is certainly considerable. It is no surprise then that the mechanisms for tackling these various grievances and disputes are similarly numerous. One common question that managers and workplace consultants face is how to choose between differing approaches to dispute resolution. In this article, we take the example of mediation versus investigation, and consider some of the variables that might come into play when deciding on the right path. 

Mediate the misunderstandings 

Often when a mediator (internal or external) is briefed about a problem between colleagues, the key term that crops up is tension. Roles, workspaces, workload division, and different communication styles are just some of the flash points that can cause dysfunction between colleagues and across work sites. The issue might involve two or more people, and more often than not there is roughly equal power between those involved. Mediation is often the go-to strategy for such workplace issues. Mediation aims to identify core problems, enhance understanding, and facilitate workable solutions for the participants to try. As a mediator, it is not within your scope to mandate any set outcomes. Yet it can certainly be helpful to use your knowledge of the situation and the workplace to make suggestions. Ideally though, the parties will have returned to a point of healthier communication and will be able to formulate outcomes and goals that are mutually beneficial. 

Investigate the irregularities 

On the other hand, a workplace investigation is based upon a different set of premises. Unlike mediation – which can often be about simmering disagreements – an investigation will most likely be appropriate where something has already allegedly gone wrong. Unlawful behaviour such as bullying or sexual harassment might have occurred, or suspicions might have started to mount regarding possible fraudulent activity. Rather than seeking to dispel relational and operational dysfunction such as would occur in mediation, the workplace investigator is often utilised to get to the bottom of potential wrongdoing. One or multiple staff members might be examined, depending upon the activity under investigation. Unlike mediation, only one person would attend an interview with the investigator at a time. Confidentiality is extremely important and investigators must be vigilant in ensuring procedural fairness at all times. 

What to watch in mediation

Mediation can be unsuitable in certain circumstances. For example, if an allegation of sexual harassment has been made by an administrative assistant against her line manager, then mediation would not be the appropriate forum for dispute resolution. There is a clear power differential in terms of the parties’ relative positions in the organisation. The openness and mutual contribution required for successful mediation is absent in this respect. Further, considering the alleged unlawful behaviour that has occurred in this instance, the employer has significant duties around the safety of the administrator, investigation of the allegations, and a duty to prevent any further harm or injury via re-traumatisation. Investigation would almost certainly be a preferable course of action. 

Unsuitable investigations

 A workplace investigation can also be an unsuitable option in certain circumstances. Take the situation where bickering and antagonism is occurring within a team, with a danger of escalating into workplace bullying. To start an investigation complete with closed-door interviews and confidentiality requirements would do little to dampen the team’s difficulties, and might in fact serve to inflame rumours and enmity. And if one person is questioned more than others, this might raise the very ire that the employer is hoping to dispel. In this case, an investigation is simply too heavy-handed an approach. Mediation between the key protagonists – facilitated in a way that allows feelings to be vented, issues to be examined, and is aimed at mutually agreeable solutions – is almost certainly the preferable approach in this instance. 

Surveying the scene

 In deciding whether mediation or an investigation will be suitable, it is important to take stock of the situation and the nature of the specific workplace problem. If it appears that wrongdoing has occurred and facts need to be examined and collated, a workplace investigation will often be the best choice. Where equal parties need a space to air grievances and to work towards solutions, mediation provides an appropriate space within which such conflict can be resolved. Always take enough time to accurately assess the scene, to ensure that your choice of approach is the best fit for that circumstance.

WISE Workplace provides certified mediators and fully licenced investigators to handle a range of workplace conflicts and complaints.