How to Write a Robust Workplace Investigation Report

Vince Scopelliti - Wednesday, September 05, 2018

At the conclusion of a workplace investigation, the investigator has the challenging task of pulling together all relevant material into a cohesive report. The style of report that is chosen will be firmly linked to the purpose of the investigation, keeping in mind the requirements of the readers and users of the document. 

Investigators need to consider closely the manner in which findings are made and how best to share findings with key parties in a clear and appropriate manner. The outcome of a workplace investigation and report might well be that mediation and/or other processes are indicated as next steps. The tasks of drafting, writing and communicating a workplace investigation report are all crucial parts of the process.

whAT IS THE PURPOSE OF THE REPORT?

Any investigation report must provide a clear and unbiased summary of the process and outcomes of an investigation. This is a document that leaves nothing to guesswork when it comes to describing the background, methodology, parties involved, timeline of events, policies and findings that have arisen across the entire timespan of the investigative process. 

It can be tempting for an organisation to decide during an investigation not to obtain a report, and to keep any outcomes 'informal'. However, if there are adverse outcomes for one or more parties, a transparent report will be the best way to prevent any future claims of unfair process. 

the style of report

No two investigation reports will have exactly the same style, the author, allegations, organisation type and specific circumstances all lend a unique nature to a report. Yet some common themes can be found in all high-quality investigations. 

Firstly, the report should be written in professional plain English. A variety of readers should be able to interpret the report - without recourse to a thesaurus! In-house descriptors and acronyms can be used, but these must first be defined or form part of a comprehensive glossary. Clear contents and a logical progression from index and executive summary through to scope, methodology, evidence, discussion, findings and recommendations will also assist any audience to understand the document. 

making findings

All findings made in an investigation report must be supported by the facts. If the facts are established, the investigator needs to determine what policy and/or law have been breached by the conduct. Once these elements are established, they must be communicated effectively and clearly in the written report. 

As with the report's overall style, findings should be logical. The report cannot simply list evidence then move to findings. Careful and reasoned explanation is needed of both the process of analysis and the deliberations undertaken by the investigator. 

This includes explaining what and why certain weighting was given to particular parts of the evidence, or why an interviewee might have been persuasive or unpersuasive on a particular point. Making clear findings is often harder than it might at first appear. Similarly, clearly reflecting the author's final thoughts in a clear and concise manner, making the report user friendly for all readers, is a challenging yet essential part of making defensible findings. 

Informing Parties

One issue to consider closely is how the outcomes of the investigation, contained in the report, will be communicated to the participants. Given that witnesses have provided evidence in confidence, their privacy needs to be protected. 

Other questions which need to be considered when sharing the outcome of an investigation with parties include:

  • Could safety be in issue by the release of particular data?
  • Is the presence of a support person necessary?
  • Should the report be presented to all parties together at a meeting? 

While a report must be clear and comprehensive in all of the matters that formed part of the process, consideration should be given to the use, delivery and description of information provided during the workplace investigation. 

Moving on from a workplace investigation

A common recommendation is for parties involved in a workplace investigation to participate in mediation in relation to one or more issues. This is often the case where emotions have stalled effective interactions at work, or where a 'he said - she said' situation makes it impossible to make a clear finding on issues of fact.

It is important to establish if all issues warrant mediation, or if only a few can realistically be dealt with in this way. Who should conduct the mediation is an interesting topic in itself - and one for future discussion. Effective mediation can create resolution of the issues and, ideally, improve workplace relationships. Yet if such discussions fall through, it is important that the report itself will withstand any future scrutiny or review.

If you need assistance with conducting an investigation, contact WISE now or enrol in our popular and effective 'Conducting Workplace Investigations' training course.

Analysing Evidence: The Key Step of Workplace Investigations

Vince Scopelliti - Wednesday, August 15, 2018

One of the most challenging and important tasks undertaken by a workplace investigator is the analysis of the evidence that has been gathered during the course of the investigation. 

Key questions to consider include: What evidence should be contained in the investigation report? How do I analyse what I have gathered? How does this connect with the findings I make in the investigation report? 

Here's how to effectively and transparently analyse the evidence.

WHAT evidence should be included? 

There is a simple answer to this question: ALL relevant evidence collected in the course of the workplace investigation will need to form part of the analysis, the findings and the final report. The act of leaving evidence out without explanation can - intentionally or otherwise - indicate a lack of thoroughness or even worse a prejudgement about a fact in issue. A piece of evidence might ultimately prove to be of little consequence, but this should be at least acknowledged and noted. So if in doubt don't leave it out. 

Exculpatory and inculpatory evidence

One way to begin marshalling material is to consider if the evidence is exculpatory or inculpatory. If we think of the allegation in question - let's say sexual harassment in the workplace - we can begin to analyse the evidence in terms of those items that most likely indicate that the conduct occurred, and those that point to the opposite conclusion. 

Evidence that indicates or tends to indicate that something occurred is known as inculpatory evidence. Conversely if evidence vindicates or tends to clear the alleged harasser of the wrongdoing, then this is known as exculpatory evidence. 

It is unlikely that you will have two neat piles from the start! However, this formal approach to organising the evidence can assist in creating a logical report that withstands future scrutiny. 

Analysis of the evidence

For each piece of evidence examined, investigators need to determine how strong or weak it is in the overall context of the investigation. Strong evidence will be consistent, reliable and in terms of witness statements, believable, probable and credible. 

Considering that a workplace investigation often reflects strong emotions and internal allegiances within the organisation, it is important to make an objective assessment of the reliability of statements made and items presented. Investigators will be on the lookout for statements that might be self-serving, or made a long time after the event in questions, for example.

Other factors to consider will be internal anomalies in statements or possible collusion between witnesses. An element of triangulation of the data will be required - the investigator is looking to detect where dubious connections indicate a weakness in evidence, or conversely where consistent evidence is noticeable across a number of different sources, including documentary evidence. 

It is important to compare and contrast evidence from different sources: Which parts of the evidence consistently support the view that the events in question occurred and which indicate that it did not occur. Once this is done, the weight or value of each part of the evidence can be assessed.    

writing up the analysis

Those new to workplace investigations can sometimes become daunted by the task of reporting on findings made. It is important to be clear about the methodology, about the manner in which the evidence was handled and how you have arrived at your findings. 

Take a methodical approach, which will assist your own thinking as well as allow any reader a logical progression through the document. Some organisations will require the report to be set out in a particular manner and it is important to ascertain if this is the case. 

Above all - make your findings clear. If your finding is that an event occurred, then state this clearly. It will be necessary to explain why you consider certain claims to be substantiated or where there is insufficient evidence to draw a conclusion on a contended point. This document could well be used in a number of forums including court and tribunal proceedings. It should be a reflection of the fact that the workplace investigation was fair, that all relevant evidence was considered and included, and that findings are based upon well-balanced evidentiary analysis. 

A workplace investigation is a systematic process for establishing facts and circumstances surrounding a complaint or allegation. If you need assistance with conducting an investigation, or would like support in analysing your evidence gathered, WISE provides both supported and full 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.

How to Deal with Bullying in Hospital Environments

Vince Scopelliti - Wednesday, June 06, 2018

Hospitals - very few people like them, yet many of us will be a resident at one time or another. Even though hospitals can be sources of great joy, places where babies are born, miracles happen and lives are saved, they also represent sickness, injury, death, and some pretty ordinary food! 

The people who work in them - the doctors, surgeons, nurses, aides, assistants, administrators and catering staff - perform difficult work in an extremely stressful environment. Imagine the potential consequences when the added stressor of workplace bullying is added to the mix.

Factors which facilitate bullying in this environment 

Hospitals and the healthcare sector remain a particularly hierarchical environment - carers need to get sign-off from nurses before passing out certain medications, nurses confirm recommended treatments with doctors, doctors and surgeons rely on their own pecking order. 

This hierarchy, and the importance of culture and following rules, automatically puts certain workers in a subordinate position relative to others.

Lateral violence, verbal, physical and psychological bullying among peers, can also be an issue in the health services. 

Combined with the stress of having to deal with time-critical emergencies, becoming involved in physically and mentally straining situations and dealing with the trauma of patients suffering, hospitals are the perfect breeding ground for hostility, anger and frustration.

Prevalence of bullying

Bullying in the healthcare sector is an under-recognised but pervasive problem. Hospitals often have scant or limited resources and staff are under significant pressure, which may contribute to the prevalence of workplace bullying.

The Australasian College for Emergency Medicine surveyed its members in 2017 and found 34% had experienced bullying, 16.1% had experienced harassment and just over six percent had been victims of sexual harassment. A landmark 2015 report commissioned by the Royal Australasian College of Surgeons showed that almost half of all surgeons had experienced bullying, discrimination or sexual harassment. 

The Victorian Auditor General Office, in its 2016 report to the Victorian Parliament, 'Bullying and Harassment in the Health Sector', stated 

"The Health Sector is unable to demonstrate that it has effective controls in place to prevent or reduce inappropriate behaviour, including bullying and harassment. Key controls that would effectively reduce this risk to employee health and safety are either inadequately implemented, missing or poorly coordinated." 

However, by its very nature, bullying in this type of workplace can be particularly difficult to detect and manage. 

Consequences of bullying

The potential consequences of bullying are significant. In addition to litigation arising from the bullying and costs associated with worker's compensation or other payouts, a number of issues can arise. These include:

  • High turnover amongst dissatisfied staff
  • Presenteeism - where staff turn up at work, but are unhappy or stressed and perform inadequately, which is particularly dangerous in a hospital environment. 
  • Increased absenteeism
  • A poorly functioning team environment that can adversely affect staff and patients.      

are there solutions to bullying in high-stress environments?  

Key strategies to help solve the problem include:

  • A focus on workplace culture, including by conducting regular cultural audits. 
  • Encouraging a 'mentor' or 'buddy' system (in consultation with unions where appropriate), or otherwise provide a supportive environment whereby staff are encouraged to vent or ask for assistance with any matters they are struggling with. 
  • Facilitating easy access for staff to obtain confidential counselling, or advice services. 
  • Fostering an environment where staff feel comfortable raising concerns and complaints with their peers and management.
  • Having clear zero tolerance policies regarding workplace bullying and harassment, which are easily accessible to all staff
  • Ensure that this zero tolerance policy, is demonstrated by senior management, so there is a top down recognition of adherence to the policy from all staff. 
  • Staff need to be regularly reminded of the consequences of any poor behaviour in the workplace and this should be reinforced during staff meetings.  

Bullying or harassment - in any workplace - is simply unacceptable. Many incidents of bullying or harassment may be unreported for fear of reprisals. All staff should be encouraged to report any incident. 

If your organisation needs any assistance in this area please contact WISE to arrange a no-obligation appointment or otherwise contact us to discuss how we may assist you. Our services include investigation, training, provision of a whistleblower facility (which can be tailored to suit your reporting needs), and review of policies

When Workplace Relationships Go Wrong

Vince Scopelliti - Wednesday, May 30, 2018

Given how much time employees spend at work every week, it is hardly surprising that romantic relationships develop in the workplace. 

But what happens when a romance is inappropriate, or attraction crosses the line into sexual harassment?

inappropriate vs unlawful

While there is nothing illegal about a workplace relationship between two consenting adults, in some circumstances it can be inappropriate, for example a romance between a manager and a subordinate. 

There is also a significant difference between mutual and enacted sexual attraction, and unlawful conduct such as unwanted sexual advances, sexual harassment or even abuse or assault. Sexual harassment is unlawful under both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 2010 (Vic). Sexual abuse and/or assault is a criminal offence.

the issues and consequences

Workplace relationships can become problematic, particularly in situations where a relationship involves two employees, one of whom oversees the other's performance, management or appraisal. 

Other co-workers may feel aggrieved by a real or perceived bias involving any decisions made by the more senior worker involved in the relationship. Team morale can suffer if one member is seen to be treated more favourably than the rest when it comes to performance appraisals, the allocation of work and promotional opportunities. 

Partly for this reason, employers may be tempted to dismiss employees who have not disclosed the nature of their romantic relationships. The legality of any such dismissal is questionable - however, previous decisions of the Fair Work Commission have suggested that employees may be dismissed in cases where employees are untruthful when they are challenged about the existence of workplace relationships. 

Employees may also make unwanted advances to other employees, as a result of innocently misinterpreting signs of perceived sexual interest. While there's nothing wrong with a co-worker asking a colleague out on a date or making an advance, there is a problem if the 'advancer' fails to accept and move on from any rebuff. 

The potential for negative fallout when a relationship ends is also a key concern for most employers. This is particularly the case if one party wants the relationship to continue while the other party wants to move on - ongoing attention may tip over into sexual harassment. 

According to the Australian Human Rights Commission, sexual harassment is 'any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual'.

From an employer's perspective, if sexual misconduct occurs in the workplace (or at employer-sanctioned events such as Christmas parties or other functions) then the business may well be vicariously liable.

There is certainly potential for litigation or unwanted media attention and brand damage as a consequence of sexual misconduct or an inappropriate relationship.    

what can an employer do to minimise the fallout? 

From a risk mitigation perspective, employers should ensure that they have adequately drafted and communicated workplace policies.

At a minimum, these policies should include: 

  • Clear guidelines on the permissibility of relationships between co-workers and when such relationships should be disclosed; 
  • Procedures for what should happen when such a relationship is disclosed, for example when a change in reporting structure is required;
  • A clause addressing conflict of interest and perceived bias (especially when relationships occur between senior and junior staff);
  • A clause defining sexual misconduct, highlighting the definition of sexual harassment and what kind of behaviour will not be tolerated in the workplace. 
  • Workplace policies that promote awareness of all gender related issues, including sexual harassment. 

It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment or perceptions of conflict of interest. 

Employers should ensure that they address all complaints of sexual harassment with care. If you have had complaints regarding sexual harassment, or are concerned about potential bias, WISE provides full and supported investigation services

Issues with Intoxicated or Hungover Staff? What to do

Vince Scopelliti - Wednesday, May 23, 2018

Most adults like to indulge in the use of alcohol from time to time. Some even like to partake a little more frequently - which is generally not problematic, in the privacy of one's own home and social sphere.

But occasionally problems with alcohol or even drug consumption can creep into the workplace, with staff under the influence while at work or under performing because of the after-effects. 

Employers have an OHS duty of care to all employees so they need to ensure that alcohol in the workplace does not give rise to safety risks. Employees also have a duty of care to themselves. Let's take a look at how employers can manage alcohol and drug-related issues in the workplace.

underlying factors and potential consequences

Alcohol and drug-related problems can occur in any workplace, across different industries. They can arise due to any number of factors, including personal issues experienced by the employee, stress, ongoing addiction, or poor workplace culture, to name a few. 

The potential consequences of alcohol or drug consumption - whether recreational or prescription - include the risk of injuries sustained by other staff and customers, absenteeism, lost production or general lack of competence, and a reliance on rehabilitation or workers compensation. 

The cost of these problems to business varies, however 1 in 10 workers say they have experienced the negative effects of a co-worker's misuse of alcohol.   

identifying alcohol or drug-related risks

One of the best ways to avoid difficulties with drugs and alcohol in the workplace is to identify potential risks and develop workplace policies that address these. 

These are some of the factors to consider when determining the level of risk facing your business:

  • Are your workers engaged in a high-stress environment? 
  • Is the operation of heavy machinery, vehicles or other equipment a requirement of your business?
  • Are there legislative or safety requirements to ensure that anybody operating this equipment is free from the influence of substances? 
  • Do staff potentially have access to illegal or significant amounts of pharmaceutical drugs, whether for their own consumption or for resale?

implementing a workplace drug and alcohol policy

At a minimum, your workplace policies should spell out:

  • Whether your company has a zero-tolerance policy for any types of drug or alcohol consumption;
  • Whether staff are required to declare reliance on specific pharmaceutical medications;
  • If random drug or alcohol testing is undertaken in the workplace; 
  • What expectations are placed on drug and alcohol consumption at work-related functions;
  • What the potential consequences of intoxication in the workplace could be

It is important to note that Section 12 of the Fair Work Act defines "serious misconduct" to include an employee being intoxicated at work. It would therefore be reasonable to dismiss an employee under those circumstances. 

It is also worthwhile ensuring that HR and other executive employees have undergone training in identifying staff who are intoxicated in the workplace or have perhaps formed habits of dependence. 

how to approach a worker who is under the influence 

When staff members suspect that a colleague may be under the influence of drugs or alcohol, it is important to be extremely sensitive in approaching that person. The specific approach will, of necessity, be dictated by various factors, including:

  • The relevant industry;
  • The workplace culture and structure;
  • The employee's role and seniority; 
  • The personal circumstances of the employee;
  • Whether the occurrence is 'once off' of suggests a pattern of behaviour; 
  • The legal environment;
  • The duties and responsibilities of the employee.

An employee is likely to be more responsive if they are approached from the perspective of a safety concern rather than an accusation. This is particularly the case where the behaviour or intoxication may arise from physical injuries, acute distress or prescribed medication which the patient is reacting badly to. 

During the process of drafting a workplace policy relating to drug and alcohol consumption, management should consider appointing and training specific staff members whose role it is to approach employees who are suspected to be under the influence of substances. 

These staff members could include managers, counsellors, health and safety representatives or HR representatives. A chain of command should also be instituted so that staff who have been tasked with making initial contact have somebody else to turn to for assistance if their initial approach fails.

If an employer dismisses an employee for drug/alcohol abuse and ends up with a claim for unfair dismissal, then a good employer defence would include that they had a workplace policy and approach that not only included clear consequences but also emphasised that the employer views abuse as a health issue and therefore seeks to help the employee overcome their abuse (this would be in cases where abuse outside of work is affecting performance as opposed to being intoxicated or high at work). 

This can be done by having an Employee Assistance Program (provided by an external provider); having a mental health and wellbeing policy; and an 'RUOK' approach - whereby managers encourage a culture of everyone looking out for each other and literally asking, are you ok? After all, such welfare approaches are exhausted over a reasonable period of time an employer would be safe to move to disciplinary approaches. 

Employers may also need to assess whether the issue is widespread, ie. a workplace culture of abuse. If this is the case, then there maybe engrained cultural issues that need to be investigated and remedied.   

What can employers do?

Workplaces are encouraged to establish a workplace drug and alcohol policy and procedure that can be followed in the event of a drug or alcohol-related incident in the organisation. 

WISE can assist you in drafting these policies, or assessing your current policy, and training staff. Alternatively, we can provide investigative services for any incidents that have occurred in the workplace. 

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.

Identifying a Toxic Worker

Vince Scopelliti - Wednesday, May 09, 2018

Getting the mix of personalities in the workplace right can be extremely challenging. 

Creating a harmonious workplace is difficult at the best of times, and if a toxic personality is thrown into the equation, it can disturb the equilibrium of the workplace. 

Let's take a look at how you can identify and deal with a toxic worker in your organisation. 

what are the traits of a toxic worker?

Essentially, a toxic employee is one who puts their own needs above those of their co-workers, and negatively influences those around them. 

There is no central factor that necessarily determines whether somebody is a toxic worker. But according to a paper published by Harvard Business School, 'key' toxic personality traits include: 

  • Strong adherence to rules, causing inflexibility; 
  • Emphasis on achieving a greater output than other workers, leading to rivalry and friction;
  • Worse qualitative output of work compared with other colleagues; 
  • Overrated understanding of their own skills;
  • Self-centredness and a lack of self-awareness regarding their impact on others. 

 The paper also identified a number of other potential signs of a toxic personality:

  • Perfectionism - those who are hyper-sensitive to criticism; 
  • Emotionally over reactive "drama queens";
  • Sociopathic, remorseless behaviour;
  • Paranoia and a failure to trust others;
  • Gossiping and manipulating;
  • Passive aggression

impact of toxic personalities in the workplace

Having a worker with a combination of these personality traits can lead to significant issues for an organisation, including a loss of clients, worsening reputation, poor morale or all the above. 

Toxic workers can cause an increase in bullying and harassment complaints being received and unsafe work practices, which may result in physical or mental harm to other employees. 

This type of employee can also be "contagious". An unhappy or unpleasant co-worker can spark dissatisfaction amongst employees, and result in high staff turnover. 

sO can you avoid a toxic worker?

It can be extremely difficult to recognise some of these personality traits in an interview process. 

For this reason, it's important for human resources teams to not only have training in how to identify toxic staff, but also in how to deal with their performance if they have been hired. The emphasis during reasonable performance management steps need to focus not only on the employee's output, but also on the conduct issues observed. 

One of the strongest defences against toxic workers is a strong culture that focuses on employee wellbeing, openness and transparency and the avoidance of competition between staff. 

Conducting regular staff surveys and business "health checks" by touching base with your workers, finding out what motivates them and ensuring that they are satisfied in their relationships with co-workers can also keep your organisation protected from the influences of toxic employees. 

how wise can help

One solution to spotting a problem in your workplace is a cultural survey. If your organisation has a concern about a toxic worker, or staff are making complaints, we recommend conducting one of these surveys. If you would like assistance with this, contact WISE today!  

Why Forced Mediations are Doomed to Fail

Vince Scopelliti - Wednesday, May 02, 2018

Mediation can offer effective resolution of workplace disputes. It's a fair process that allows parties to be heard and encourages them to find a resolution both sides are satisfied with. 

Mediation should only be used when parties are willing to discuss their differences. In the case of a bullying complaint, an investigation is required in the first instance, to determine whether there is an active grievance or complaint afoot, causing one of the parties to feel unsafe in the workplace. 

Forcing an unwilling employee to the mediation table can lead to resentment and even legal action. 

How does mediation work?

In mediation, a third party facilitates an open discussion between two parties to help settle a dispute rather than going to court. Both sides are encouraged to reach an acceptable compromise. For employers, the idea is to resolve a dispute quickly and economically. 

while there are pros and cons for mediation, one positive is that a verdict is never 'handed down' but rather, the parties come to the decision together. It's an empowering process, giving the parties input into the outcome. 

The advantage of mediation is that disputes can be reexamined and reframed in order to find the appropriate solution. It's a flexible process that can be tailored to the needs of the players involved. 

A key aspect though, is that all parties need to act in good faith, and be open to discussion and negotiation. If mediation is forced upon an employee, they are likely to feel that the process isn't fair, leading to resentment, a difficult negotiation and disagreement with the outcome. 

Can an employer compel an employee to attend mediation?

While an employer can enforce mediation, and take disciplinary action if an employee fails to attend, there must be grounds to do so, and these grounds must be established. Without grounds, an employer may be left open to a claim of adverse action or victimisation. 

It's important in these situations, however, to carefully consider the reasons why the employee may not wish to be part of mediation. For example, they may fear a power imbalance or bias against them or may feel unsafe in their workplace, due to a bullying complaint which has not been addressed. 

Outlining the process: the role of the mediator

A mediator is appointed to facilitate the process. The mediator does not provide legal advice, nor do they offer legal counsel. A neutral third party, the mediator's role is not to make a decision, but to encourage the parties to come to their own, mutually agreed-upon resolution. 

In most cases, the mediator will make an opening statement and then give each party the opportunity to do the same. During this time, each party will share why they have agreed to the mediation and what they would like to achieve from it. This is not the time to air grievances. 

Just as a meeting is kept on track with an agenda, it's best to have a mediation meeting framework in place to ensure all steps are taken care of and all issues are dealt with accordingly. The agenda should be clearly spelt out and followed. The mediator will help determine what should and shouldn't be discussed and it's the mediator's role to keep the discussion on track. 

During the mediation, private sessions may also be helpful so parties can refresh and refuel. The mediator will meet with the individual parties one at a time to discuss how they are feeling. This process may be repeated if necessary. 

Once each agenda item has been addressed and discussed, a decision will be mutually agreed upon. The mediator will review, finalise and capture the agreement in writing. 

Approaching mediation

Asking an employee to mediate their grievance is a reasonable request - after all, restoring the peace between employees is important for business, and ensuring employees relations are happy and healthy is paramount. 

However, mediation will only work if the parties truly want to mediate. This means they want to come to an agreement together, and there's no possible reason why one party may be afraid or uncomfortable during the process. 

Forced mediation is not likely to be effective, as it is one-sided. 

When expert assistance is required

If the parties cannot find agreement on all agenda items, or there are behavioural concerns, it may be necessary to explore possible resolution options with an experienced external workplace mediator. 

If you need some support in how to conduct a mediation, need to engage a mediator, or would like to resolve a workplace conflict, contact WISE

Aged Care Investigations: A Guide for Reportable Assaults

Vince Scopelliti - Wednesday, April 18, 2018

The thought that some of the most vulnerable in our society - the elderly - might be at risk of harm in residential aged care facilities is abhorrent. But even with the best of intentions and the proper guidelines in place, there is still potential for abuse and assault to occur. 

Abuse allegations in an aged care setting are highly emotional and challenging for all involved, especially the victims and their families. 

When investigating these allegations, it is essential that procedural fairness and objectivity are paramount.

the two types of reportable assaults

The Aged Care Act 1997 (Cth) sets out the requirements for when approved providers of residential aged care must report matters involving their residents to the police. 

Section 63-1AA of the Act defines 'reportable assaults' as either unlawful sexual contact with or the unreasonable use of force on a resident of an aged care facility. 

Unlawful sexual contact considers situations where the resident does not or is unable to provide consent. In cases where residents have cognitive impairment, it is particularly important to ensure that all allegations are properly investigated.

Unreasonable force is intended to cover situations where elderly residents are treated roughly, causing physical injuries. Given the manual nature of handling aged care residents, it is accepted that occasionally 'innocent' or accidental injuries do occur - however, any physical injuries should be adequately reported.

wHO TO REPORT TO, AND WHEN

The Department of Health oversees aged care facilities generally. The Australian Aged Care Quality Agency (AACQA) is required to assess aged care facilities for ongoing compliance with accreditation standards and reporting responsibilities. 

The aged care provider is required to notify the federal government's Department of Health, either by completing a form or calling the hotline, within 24 hours of a suspected reportable assault. The police must be contacted within the same timeframe. A failure to comply with these reporting requirements may result in sanctions being imposed by the Department of Health. 

Given the serious nature of elder assault, even in circumstances where it is unlikely that a suspicion will be proven to be correct, an aged care provider must undertake the necessary reporting within the required timeframe. 

Staff members who notify their employers of potential assaults are protected in accordance with the Act. This means that their anonymity must be maintained and they are protected from potential reprisals by colleagues. 

the role of the aged care complaints commissioner

Complaints relating to the quality of aged care can also be directed to the Aged Care Complaints Commissioner. 

The Commissioner is tasked with resolving complaints, taking action on issues raised in complaints and helping to improve the quality of aged care. 

Making a complaint to the Commissioner may be a more appropriate avenue for individuals who do not work in an aged care facility, but who wish to report suspect behaviour, such as family members or other concerned residents. 

Other responsibilities for providers

Additional responsibilities imposed on aged care providers include:

  • Requiring staff to notify suspect assaults -  In practice, this means ensuring that staff have sufficient information available to understand their obligations to report, and the methods by which they can inform their employer (or the Department of Health directly if they are concerned about protecting their jobs). They must also ensure staff understand the potential consequences of providing false or misleading information. 
  • Record keeping - Aged care providers are required to keep detailed records relating to all suspected incidents involving reportable assaults. Specific details which need to be noted include the date the allegation was made, the circumstances giving rise to the allegation, and more information surrounding the notification. The records must be available for viewing by the Department of Health or the Quality Agency, if requested. 
  • Privacy - Aged care providers are required to balance their obligations under the Act with all requirements imposed by privacy legislation, including protecting the identities of their staff and residents. 

When is an assault not reportable?

In certain circumstances, assaults need not be reported. These are set out in the Federal Aged Care Act. Broadly speaking, an assault is not reportable if:

  • The alleged person who has committed the assault is a resident who suffers from cognitive or mental impairments (such as dementia, depression or similar conditions) which are likely to have contributed to the assault, and appropriate arrangements are put in place immediately to deal with that behaviour. 
  • The same incidents have already been reported. 

If you or your organisation is responsible for safeguarding the aged, WISE Workplace's Investigating Abuse in Care skills-based short course will assist you in investigating claims of abuse and reportable conduct, in line with the legislation applicable in your state.