Complaints Management Under the NDIS

Vince Scopelliti - Wednesday, August 09, 2017

The National Disability Insurance Scheme (NDIS) was introduced in mid-2013 to facilitate a support system for disabled Australians. In many ways, this has begun to streamline and simplify the process whereby many thousands of Australians under the age of 65, who have sustained a permanent and residual disability, are able to access healthcare services. But what happens when the system goes wrong and complaints need to be made about behaviour occurring within the purview of the scheme?  

REGULATORY FUNCTIONS OF THE NDIS

Broadly, the NDIS is governed by the National Disability Insurance Scheme Act 2013 (Cth). It is administered by the National Disability Insurance Agency (NDIA), which holds all funds in a single pool, manages funds, administers access and approves the payment of support packages. The NDIA Board, which is advised by the National Disability Insurance Scheme Independent Advisor Council, ensures the strategic direction and general performance of the NDIA. 

The NDIS Quality and Safeguarding Framework has been set up to ensure a nationally uniform approach as to how participants of the scheme will be assisted and supported. 

The NDIS Complaints Commissioner, the NDIS Registrar and the Senior Practitioner hold important roles in the complaints process under the NDIS.

Providers who wish to operate within the NDIS must:

  • Comply with all state and federal laws
  • Participate with the NDIS Code of Conduct
  • Engage in the NDIS Resolution Process

mandatory reporting regime

In NSW, the Disability Inclusion Act 2014 requires mandatory reporting for serious incidents of abuse or neglect of the disabled in the supported group accommodation setting. If this is suspected, an investigation must take place. 

Any such serious incidents must be reported to the NSW Ombudsman within 30 days of the incident occurring. 

In Victoria, The Department of Health and Human Services has developed a new Client Incident Management System (CIMS) to improve the safety and wellbeing of clients. In addition, they have recently established a Reportable Conduct Scheme (RCS) under the Child Wellbeing and Safety Act 2005 to improve on how organisations prevent and respond to allegations of abuse. This came into effect on 1 July 2017. 

According to the NDIS Quality and Safeguarding Framework (released 9 December 2016), once the NDIS has been rolled out and takes effect, registered providers must notify all 'serious incidents' to the NDIS Complaints Commissioner.

These include: 

  • Fraud-related incidents
  • Alleged physical or sexual assault by an employee against a resident or scheme participant, or by one participant against another while both are in the care of a provider
  • Obvious neglect
  • Serious unexplained injury
  • The death of a scheme participant (This must be notified regardless of how the participant died)
  • Unauthorised use of restrictive practices

It is particularly important for employers to monitor staff to ensure that they are compliant with their obligations under the NDIS, and other legal frameworks.

How the ndis complaints procedure works

Generally speaking, any complaints regarding providers of NDIS-funded support systems go directly to the Commissioner, who triages cases and makes an assessment of who should deal further with the complaint. 

The Commissioner will also:

  • Investigate serious incident reports
  • Review breaches of the NDIS Code of Conduct

In order to undertake this role, the Commissioner has commensurate powers of investigation and information-sharing with appropriate industry bodies. 

In the event that the Commissioner does not wish to hear a matter, the NDIS Registrar is empowered to hear matters related to non-compliance of requisite standards by providers under the NDIS. 

Finally, the Senior Practitioner is entitled to hear matters relating to:  

  • Inappropriate or unauthorised use of a restrictive practice
  • Unmet disability support needs. 
The Commissioner is also entitled to refer matters to such external agencies as considered necessary, including the police, the Australian Health Practitioners Regulatory Agency (AHPRA) or other relevant regulatory bodies. 

Individual participants of the NDIS who are self-managed can make complaints about providers directly to the Commissioner. This complaint mechanism can be utilised even if the provider is not directly registered with the NDIS. Further, complaints may be made to other industry bodies, such as AHPRA or industry-specific organisations. 

The ability to make a complaint is also not limited to recipients of services under the NDIS - any person can make a complaint about an action taken by a NDIS provider. 

A separate complaint process is required if a scheme participant is concerned about decisions made by the NDIA (as opposed to inappropriate behaviour being engaged in by a service provider). 

WHAT ARE PROVIDERS REQUIRED TO DO?

It is a requirement for NDIS providers to have in place an effective internal complaints management scheme, and they must commit to maintaining a detailed schedule of complaints received and responses proffered, specifically in order to assist the Commissioner if necessary. 

Employees who report inappropriate behaviour or otherwise raise concerns about their workplace to the Commissioner are entitled to whistleblower protections as enshrined in the relevant legislation.

WHAT HAPPENS IF A PROVIDER ISN'T COMPLIANT? 

In the event that employers or providers of NDIS-related services are not complying with the applicable Code of Conduct, the Commissioner, or the Registrar can step in to review the provider's adequacy. 

In addition to assessing providers against adherence to the Code of Conduct, the Commissioner will consider whether providers have duly complied with mandatory reporting requirements, or have otherwise had complaints made against them. 

If either the Registrar or the Commissioner determines that a breach has occurred, the provider may be required to undergo additional education and training, operate subject to various conditions, or in the worst circumstances, be excluded from participation in the NDIS. 

It is essential for providers of services under the NDIS to have a strong complaints management focus in order to ensure ongoing compliance with the requirements of the NDIS and NDIA. If your organisation has received a complaint of disability abuse or other concerns relating to your management and implementation of the NDIS, and you require assistance with a workplace investigation, contact us

Investigating Allegations of Abuse in Care in Aged Care Facilities

Vince Scopelliti - Wednesday, August 02, 2017

Aged care providers have been in the media spotlight in recent weeks. While some are alleged to have financially exploited the elderly others are alleged to have provided a substandard level of care. Research conducted by Curtin University in 2015 suggests that some 167,000 older Australians may be subject to abuse annually.

Like many other types of domestic or sexual violence, it is also likely that elder abuse is significantly under-reported, so the true scope of abuse may be far greater.

what is elder abuse?

According to the World Health Organisation, elder abuse is 'a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.' The perpetrators of elder abuse can include children, spouses, friends and neighbours, or staff at care facilities where the victims reside. 

There are many different forms of elder abuse, including:   

  • Physical Abuse - Inflicting physical pain, injury or impairment. Can include forcibly restraining or inappropriately requiring the consumption of drugs. 
  • Emotional or Psychological Abuse - especially through intimidation, humiliation, mockery, isolating, ignoring, or menacing the elderly person. In a care facility, this could include repeatedly and intentionally ignoring calls for assistance. 
  • Sexual Abuse - apart from the obvious, this can include forcing the elderly to watch pornographic material, or even forcing them to take their clothes off without legitimate reasons. 
  • Neglect or Abandonment - failing to provide a requisite standard of care. 
  • Financial Abuse - includes outright theft, coercing elderly people into handing over funds or altering wills. Of particular concern are situations where carers are granted enduring powers of attorney, which enable the holder to undertake all legal actions that the person otherwise would be entitled to. Enduring guardianships relate to the right to make medical or health-related decisions on behalf of another person. 
  • Healthcare Fraud - such as billing for services which have not been provided, or intentionally over/under-medicating for a self-interested reason such as 'kickbacks' from pharmaceutical providers.

what are the signs?

Potential signs of the various types of elder abuse include:

  • A bad or unusual relationship between a care provider and recipient. 
  • Unexplained injuries
  • Insistence by the caregiver that the victim is never attended to without them being present.
  • Behaviour mimicking dementia (even when the victim does not suffer from this condition), which may suggest an emotional regression due to ongoing abuse. 
  • Ongoing poor hygiene and living conditions.
  • Significant financial withdrawals being made from the victim's accounts, or noticeable and inexplicable generosity by the suspected victim towards a specific caregiver. 

Of course, this is not an exhaustive list. Care providers and employers should ensure that any behavioural or physical changes in their clients are observed and monitored, particularly sudden ones, which occur without explanation. 

In terms of the Aged Care Act 1997, Section 63-1AA the definition of a mandatory reportable incident for persons in residential care include unlawful sexual contact and unreasonable use of force on a resident. 

Providers are required to report to the Department of Health and the Police within 24 hours if they have any suspicion or allegation of reportable assault. 

For person receiving home or flexible care, reportable incidents to the Department of Health include financial abuse. This does not extend to residents in aged care facilities, however, residents' financial abuse still needs to be reported to the Police. 

common risk factors for elder abuse

In the context of care facilities, the greatest risk factors for elder abuse include: 

  • Poor staff training or lack of awareness about what type of treatment is expected to be provided. 
  • Unhappy working conditions, contributing to staff feeling that they need to 'lash out' at clients.
  • Excessive responsibilities and inadequate levels of support. 
  • Inappropriately vetted staff, including those with substance abuse issues. 
  • Inadequate policies and procedures related to the protection of vulnerable people and a lack of staff awareness of these policies. 
  • Inadequate complaint handling mechanisms. 

Residents who may be particularly likely to become victims of elder abuse include those who are physically or mentally frail, or those who may be perceived as being very unpleasant to work with - causing care workers to demonstrate inappropriate frustration or aggression.   

How to prevent the risk of ELDER ABUSE

Apart from remaining vigilant about the potential risk factors and apparent signs of elder abuse, care facilities must ensure that:

  • All resident and staff concerns are appropriately listened to and noted. 
  • All staff have have undergone criminal checks.
  • Intervention occurs immediately when elder abuse is suspected and workplace investigations are thorough and swift. 
  • All staff are appropriately trained in the relevant policies and procedures and how to recognise and prevent elder abuse.  

COMPLICATIONS ARISING FROM THE AGEING MEMORY

Mild memory loss and a slowing down of thinking is a natural part of ageing. But while many elderly people are still capable of managing their own affairs, others who have serious conditions such as dementia may lose the capacity to do so.

In some cases, the simple fact that a person has an ageing memory may mean that they are treated as though they do not have any capacity to make decisions for themselves, and are thus at greater risk of elder abuse. 

In the context of patients with dementia or other serious memory loss issues, any complaints they raise may be discounted out of hand as being fabricated. However, when coupled with other signs of potential elder abuse, they should be investigated. 

Complications can also arise around eyewitness memory and conducting interviews in workplace investigations. In such cases, cognitive interviewing techniques can be helpful. 

This may include allowing a witness to draw a sketch or use visualisation techniques, asking them to explain everything that occurred, taking them over events in reverse order, and asking them about how they were feeling at the time of the event can all assist in memory recall. 

Conducting investigations into elder abuse in care contexts can be challenging. The WISE Workplace team is experienced in conducting independent, competent and unbiased investigations into reportable conduct and abuse complaints in care settings. Contact us to discuss your needs, and how we can help. 

Natural Justice - Privacy and Reliance on Covert Workplace Surveillance

Vince Scopelliti - Wednesday, July 26, 2017

In a recent decision of the Fair Work Commission (FWC), a nurse has been reinstated following her termination in circumstances where covert video surveillance was the 'sole foundation' of allegations against her. The FWC also found that her employer's human resources department acted incorrectly and inappropriately in the circumstances surrounding her dismissal.

facts of the case

Ms Tavassoli, an Iranian refugee, was employed as a nurse at a Bupa Aged Care Australia Pty Ltd nursing home located in Mosman, NSW. 

In Tavassoli v Bupa Aged Care Mosman [2017] FWC 3200, she claimed that she had been constructively dismissed after being falsely accused of serious misconduct by her employer. 

A colleague of Ms Tavassoli's had secretly recorded her on a personal mobile phone, which allegedly showed Ms Tavassoli:    

  • Making fun of a resident
  • Singing select, mocking lyrics from a musical including "Anything you can do, I can do better."
  • Continuing to drink tea with another co-worker while residents were calling for help.
  • Laughingly telling a colleague that she was lucky to have swapped a shift during which two patients passed away. 

Ms Tavassoli's colleague took the footage to the facility's acting general manager and care manager. 

In response, the very next morning, the general manager took Ms Tavassoli, off-site for a disciplinary hearing. Despite pulling Ms Tavassoli out of a training session the general manager did not inform her what allegations had been made against her, and caused her to wait for two hours before the meeting actually took place. 

During that time, Ms Tavassoli thought about what accusations may have been made against her and became concerned that she would be accused of theft after a patient had gifted her with some beer. Accordingly, Ms Tavassoli drafted a resignation letter. 

When the meeting finally took place, Ms Tavassoli was accused of various types of misconduct. Although she didn't fully understand the accusations against her, Ms Tavassoli tendered her resignation, providing four weeks' notice. However, the general manager advised her that the resignation would be effective immediately, and requested that Ms Tavassoli amend the resignation letter to remove the reference to a four-week notice period. 

Ms Tavassoli attempted to withdraw her resignation only two days later but was denied this right. 

decision of the commission

In deciding to order that Ms Tavassoli be reinstated to her former position, Commissioner Riordan determined that:

  • Ms Tavassoli had been constructively dismissed
  • The general manager acted without due procedural fairness when he refused to permit Ms Tavassoli to withdraw her resignation and return to her former position. 

A particular factor taken into account by Commissioner Riordan was that Bupa is a large organisation, with considerable resources. As a result, he concluded that the human resources department should have followed appropriate processes in dealing with Ms Tavassoli, and crucially should have shown Ms Tavassoli the video evidence collected against her. This was heightened by the employer's knowledge that Ms Tavassoli's English skills were poor. 

The decision not to show the footage was considered to deny Ms Tavassoli the right to know what case she had to answer. Indeed, Commissioner Riordan went so far as to suggest that the human resources department failed in their obligations to Ms Tavassoli and committed 'a form of entrapment' by not showing her exactly what information had been gathered against her. 

He found that the employer had made a determination of Ms Tavassoli's guilt immediately upon seeing the footage, and had failed to undertake any proper investigation as to the circumstances surrounding the behaviour. 

Commissioner Riordan further noted that, by requesting that Ms Tavassoli amend the terms contained in her resignation letter, the general manager effectively 'took over' the termination, which supported a finding of constructive dismissal. 

He was also highly critical of Ms Tavassoli's colleague who had taken the recordings, but accepted that the Commission did not have any rights to proceed against the colleague.

Against this background, Commissioner Riordan ordered that Ms Tavassoli be returned to her former role. 

Legality of secret recordings

Perhaps the most crucial factor in Commissioner Riordan's decision was his concern that the video recordings breached the Workplace Video Surveillance Act 1998 (NSW)

According to the Act, any surveillance conducted by an employer in the workplace is considered 'covert' unless the employee:  

  • Is notified in writing, before the intended surveillance, that it will take place.
  • The surveillance devices are clearly visible.
  • Signs are clearly noticeable at each entrance which point out that employees may be recorded in the workplace. 

Even though the employer did not take the footage in this case - with the recordings instead being made by a colleague of Ms Tavassoli - the fact that the employer relied upon the footage to discipline Ms Tavassoli was considered by Commissioner Riordan to be a sufficient breach of her privacy to run afoul of the Act. 

The Key message FOR EMPLOYERS

The takeaway message for employers here is twofold. Firstly, it is always essential that employees have the opportunity to respond, in detail, to allegations which are made against them, as well as being presented all the evidence which is being relied upon to support the allegations. Secondly, employers must be careful not to rely upon inappropriately obtained evidence which contravenes privacy legislation or any other relevant laws. Employers must comply with any applicable surveillance laws when relying on such evidence.   

Should you require an external workplace investigation into allegations of misconduct, contact WISE Workplace

Performance Management to Avoid Bullying Complaints

Vince Scopelliti - Wednesday, July 19, 2017

Staff who are subject to increased employer supervision or performance management may feel that they are being personally victimised, attacked or even bullied.

It may be difficult to distinguish between reasonable performance management and bullying, especially when the worker involved is sensitive by nature, has personal stress factors, fails to acknowledge their own performance shortcomings or is emotionally reactive. This leads to an increased risk of bullying complaints when staff members are being performance managed. 

So how can employers use performance management steps to manage their staff to meet operational requirements without risking censure, criticism or complaints of workplace bullying?

When is performance management reasonable?

The following guidelines apply to reasonable performance management:

  • 'Reasonableness' should be judged objectively, rather than basing it on the worker's perception;
  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A particular course of action may still be 'reasonable action' even if all the separate steps, when seen in isolation, are not;
  • Consideration may be given to whether the management action was a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 

To guard against the perception of bullying, employers need to ensure that they: 

  • Provide clear instructions, information and training to all employees;
  • Establish that employees are aware of and understand the business' performance and disciplinary policies and procedures;
  • Take management action that is justified and follow a process that is procedurally fair and consistent;
  • Provide timely feedback to staff when the issues arise
  • Document all performance matters and disciplinary steps clearly. 

Even though the process is designed to be cooperative and consultative, employees may still object to performance management and complain that they are being bullied, victimised or harassed.

The Commonwealth at section 789FD Fair Work Act 2009, specifically states that an employer is not bullying their staff if they engage in 'reasonable management action carried out in a reasonable manner.'

In practice, reasonable management (as opposed to bullying) means that:

  • A course of action can be considered reasonable from an objective examination even if an individual step in the process is not.
  • Any action taken must be lawful and not 'irrational, absurd or ridiculous'
  • Management should ensure compliance with policies or procedures that are established and already in place. 

Regardless of how aggrieved the employee feels, or how they perceive their employers actions to be intended, a tribunal will consider the reasonableness of the performance management action objectively.  

WHAT IS A REASONABLE MANNER?

What is 'reasonable' is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. 

This may include consideration of:

  • The particular circumstances of the individual involved
  • Whether anything should have prompted a simple inquiry to uncover further circumstances
  • Whether established policies or procedures were followed, and
  • Whether any investigations were carried out in a timely manner. 

The Role of the performance improvement plan (pip)

When used to its maximum potential, a PIP can: 

  • Identify areas where individual employees are under performing or failing. 
  • Provide suggested methods whereby employees can improve their performance, whether to meet minimum required competency levels or, at the other end of the spectrum, or to assist employees to excel in their roles. 
  • Provide objective evidence in circumstances where an employee's performance is substandard and it is anticipated that their employment may eventually need to be terminated;
  • Help managers and employers observe patterns in employee behaviours and performance to identify factors contributing to poor performance. 

 It is important that PIPs are drafted in accordance with the organisation's workplace behaviour management policy. 

Managers should take the time to:

  • Determine the specific root cause of the poor performance;
  • Communicate with the employee in an open, clear and practical manner;
  • Focus on the problem, not the person; and
  • Set goals in consultation with the employee so that the employee knows what the specific concerns are and how to improve their performance. 

tHE three golden rules for employers

To guard against the increased risk of performance management bullying complaints, employers seeking to implement a performance management regime must ensure that:

1. Each employee has a clear, logical, objective and easily accessible position description according to which they can be measured (and self-measure). 

2. The employer's desired improvement outcomes are objective, have been explained to the employee, and are clearly understood. 

3. The employee is provided with employer, and where appropriate, peer support, and guidance to assist them in achieving the desired performance outcomes. 

Following the three golden rules can help employers avoid unfounded claims of workplace bullying when they are improving the effectiveness of their business through performance management procedures. 

Should you require a workplace investigation to determine whether management action has been reasonable or whether it constitutes bullying, contact WISE Workplace

Protecting Whistleblowers During Workplace Investigations

Vince Scopelliti - Wednesday, July 12, 2017

Feedback from employees is crucial to employers wanting to keep their finger on the pulse of a business. It is essential for management to be aware of risky behaviours occurring within a workplace, such as bullying, circumstances giving rise to easily preventable worker's compensation claims, failure to comply with regulations, corruption, or even criminal activities such as embezzlement, theft or fraud. In many circumstances, this information will only become available through the cooperation of whistleblowers. 

In order to ensure that accurate information is conveyed, it is essential for businesses to make sure that potential whistleblowers are protected from persecution, ridicule or reprisals during the investigation. But how does this occur in practice?

WHAT IS A WHISTLEBLOWER?

A whistleblower is somebody who reports internal wrongdoing within an organisation, either to a senior member of the organisation or to an external authority, such as the police or the Australian Securities and Investment Commission (ASIC). 

Generally speaking, protection is afforded to those who are current employees, officers or even contractors who are engaged in providing goods or services to an organisation. 

Information which is provided to an employer by a whistleblower is considered a 'protected disclosure', which must remain confidential and which can only be passed on if specifically authorised by law or by the whistleblower. 

how are whistleblowers protected?

There are various sets of state-based legislation which provide different types of protection for whistleblowers operating in the public sector. However only in South Australia are those working in the private sector afforded similar protections. In SA, the Whistleblowers Protection Act steps in to protect people who provide information:
  • Which the genuinely believe is true.
  • Which can be considered to be in the 'public interest'.
  • Which is provided to an appropriate authority. 
Nationally, the Australian Standard AS 8004-2003 sets requirements for the implementation of whistleblowing schemes in private enterprises. Under these requirements, the identity of the whistleblower must not be disclosed unless specifically authorised by law, and the information provided must also be kept confidential. 

At federal level, the Commonwealth Corporations Act 2001 also provides specific protections for whistleblowers, which prohibits any action, including personal or professional retaliation, from being taken against a person who has disclosed wrongdoing. In the event that any such retribution occurs, the Act provides a civil right for whistleblowers to sue reinstatement of employment. 

Alternatively, if a whistleblower suffers any other loss as a result of their disclosure, they can claim compensation for damages suffered directly from the alleged wrongdoer. 

The Act stipulates that whistleblowers cannot be subjected to criminal prosecution or civil litigation because of their involvement in providing protected information.    

However in order to fall within the protections set out in Paragraph 1317AA of the Act, it is necessary for:
  • The whistleblower to provide their name.
  • There to be reasonable grounds to suspect a breach of the Act and the report is to be made in good faith.
  • The whistleblower to be a current employee or director (of course, this is problematic in circumstances where the person was recently sacked or otherwise resigned from their employment)
In June 2017, the federal government announced its intention to introduce legislation which updates and improves on whistleblower protections, including potentially incentivising whistleblowers with financial rewards for providing information which has resulted in successful prosecutions.   

HOW YOUR ORGANISATION CAN ASSIST WHISTLEBLOWERS

Although Australia has some legal provisions in place to ensure that whistleblowers are protected from reprisal or other involvement in litigation, there is still much more that can be done to encourage the reporting of wrongdoing observed within a company. 

If you are concerned that your workplace may not provide sufficient incentive to employees to report wrongdoing, or provides insufficient support to those who do reveal sensitive information, sign up to WISE Workplace's 24/7 whistleblower program, Grapevine. The program offers independent monitoring of complaints and assessments of appropriate methods of dealing with complaints, as well as advice on how best to advise your employees that they are entitled to whistleblower protections. 

Ensure that your organisation is strengthened internally by implementing a strong whistleblower policy to guarantee that all staff feel comfortable providing information relating to misconduct or inappropriate behaviour. 

Is Your Complaints Procedure Effective?

Vince Scopelliti - Wednesday, July 05, 2017

Risk management is an important aspect of running a successful business: Whether this takes the form of ensuring compliance with corporate governance programs, reducing instances of workplace fraud or financial misconduct, or eliminating bullying or other forms of harassment. 

Having a strong and coherent whistleblower program in place can help protect your organisation's interests in all of these situations. 

An ineffective complaints system could in fact be preventing your employees from raising any complaints. 

So what are the hallmarks of an effective whistleblower program?

Provide confidentiality and support

An effective complaints system should enable your business to identify hotspots, respond to critical incidents and communicate confidentially with reporters. It should also provide employees with a safe and secure environment to report misconduct, enable insightful management and the ability to bring about real cultural change, and reduce corporate risk. 

Perhaps the most crucial component of a successful complaints system is that complainants are guaranteed confidentiality and employer support throughout the whole process. This is particularly important as those who are considering blowing the whistle on co-workers or supervisors may be concerned about reprisals or the potential impact on their employment. 

This is especially likely to be the case in circumstances where the reported conduct involves sexual harassment, workplace bullying or criminal behaviour, such as fraud or theft. Employees considering making a complaint should be offered the opportunity to make anonymous complaints to reduce the fear of retaliation. 

The following statistic are particularly insightful: 

  • A third  of all reports made through whistleblower programs relate to bullying and harassment
  • 67% of people experiencing bullying or harassment do not report it
  • 42% do not report it for fear of negative consequences
  • 49% of misconduct is reported by employees. 

ESTABLISH CLEAR PROCEDURES AND GUIDELINES

It is crucial that reporting systems in your workplace are clearly identified and communicated to all staff. This includes making it clear to all employees how a complaint should be made (including an anonymous complaint), to whom, and what the follow-up process will be once a complaint has been lodged. 

This information should be readily available and easily accessible. 

DON'T MAKE EMPTY PROMISES

Once a whistleblower program is in place in your business, it is important for those utilising the service to feel that their complaints are being taken seriously and will be dealt with and responded to in an appropriate fashion.  

Privacy concerns and operational strategies may mean that complainants are not privy to all aspects of any ultimate disciplinary or punitive processes imposed on those against whom complaints are sustained. It is nonetheless important to confirm with the complainant that it has been duly and independently investigated, and that it has been resolved to the business' satisfaction.

CRACK DOWN ON REPRISALS

It is equally important for your organisation to have a strong and transparent policy to deal with reprisals or victimisation of whistleblowers. In some circumstances, even if confidentially is offered, only a little bit of logic may be required to deduce who made a complaint against another staff member. This maybe particularly relevant if your business is small or if the circumstances surrounding an allegation involve only a few people with detailed knowledge of the facts. 

If anyone involved seeks to retaliate either physically, verbally or by affecting the whistleblower's employment, it is crucial for your organisation to demonstrate a swift and clear zero-tolerance response.  

IMPLEMENTING A PROGRAM CAN BE CHALLENGING

Ensuring easy communication and the ability for staff to raise complaints where necessary, benefits all employees by improving an organisation's ability to deal with risks and increasing employee satisfaction. 

However, implementing an effective whistleblower program can be difficult, particularly in a smaller business with limited resources. It can also be a complicated task to provide a program that responds quickly and is impartial. 

At WISE Workplace, we offer an independent whistleblower hotline program that is ready to take complaints 24/7, provide assessments on the urgency of complaints, and offer expert advice on the dealing with complaints. Contact us to find out more.   

How to Interview Witnesses in Workplace Investigations

- Tuesday, June 10, 2014

How to Interview Witnesses in Workplace Investigations

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

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

Seek explanations for assumptions

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

Take a wider view

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

Learn the signs of avoidance

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

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

Written by Vince Scopelliti from WISE Workplace  Melbourne office

Small Businesses Not Immune to Large Payouts

- Tuesday, June 03, 2014

Small Businesses Not Immune to Large Payouts

A family-run photography business has been ordered to pay a former employee more than $235,000 in compensation and penalties in a constructive dismissal ruling by the Federal Circuit Court of Australia. The ruling, made on April 30 in Melbourne, imposed penalties on the former employers for discrimination and breaching the Fair Work Act, after they allegedly told a pregnant employee that she couldn’t work with clients because it was “not a good look.”

Unreasonable Demands

The employers were ordered to pay compensation of $174,097 plus additional penalties by Federal Circuit Judge Dominica Whelan, who described their conduct as serious. As well as repeatedly discriminating against the employee on the basis of her pregnancy, and refusing to consider letting her return in a part-time capacity after the birth of her child, they insisted that she work “all hours necessary” to assist the business. She was ordered to take long service leave before her child’s birth because her employers stated that customers wouldn’t want to see a pregnant woman working, and it would make them (the employers) look like “slave drivers”.

In addition to the unreasonable demands on her working hours, after learning of her pregnancy, the employers demanded that she agree to a new contract of employment linking her wages to unrealistic, never previously achieved sales targets. The photographer had worked for the business for 12 years, and during this time it had never been suggested that her wages should be linked to sales figures. The figures had never been reached in the history of the time she had worked there, and she believed that the expectation was unreasonable.

Verbal Abuse

The behaviour of the employers towards the employee was aggressive, and included verbally abusive language on a number of occasions. This increased when she refused to work additional hours and complained of discrimination. The arguments put forth by the employer stated that if they had constructively dismissed the employee, it was due to a combination of performance issues and the financial state of the business, and unrelated to her pregnancy. However, Judge Whelan was satisfied that the employee’s pregnancy was the sole cause, and not the reasons suggested by the employers.

A Warning for Small Business from the Bench

Although in this case the employee was able to seek legal redress against her former employer, the judge raised concerns about the rights of employees in small businesses as a whole. Although this employee had been able to pursue her case due to her education and the fact her husband had legal expertise, evidence was heard that another employee in the same business had been afraid to inform the business owners of her pregnancy when she resigned and felt unable to seek similar legal protections.

Part of the reason for awarding the large payout, as explained by the judge, was to act as a deterrent against other small businesses making unreasonable demands on their employees and discriminating against pregnant workers. Judge Whelan stated that society has to take a stand to protect the capacity for women to continue in employment during their pregnancy and to be able to continue their career after having a child.

Written by Vince Scopelliti from WISE Workplace  Melbourne office

What is Admissible Evidence

- Monday, May 26, 2014

What is Admissible Evidence

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

Records and documentary evidence

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

Witness statements and assumptions

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

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

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

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

Written by Vince Scopelliti from WISE Workplace  Melbourne office

WISE Workplace is expanding!

- Wednesday, November 27, 2013

We are pleased to announce our merger with LKA Group Pty Ltd, a national investigations company. The merger becomes official on 1 January 2014.  On that date our combined firm will begin conducting its practice under the same familiar name of WISE Workplace with offices in Sydney, ACT, Melbourne, Brisbane, Hobart and Perth.

Merging with LKA Group will allow us to expand our service offerings and coverage whilst we continue to provide our high quality services more reliably and economically to our clients across the whole country.

LKA Group shares the same values we do of quality, service and fairness. They have been involved in the delivery of investigation services for over 25 years and have a tradition for excellent customer service, extensive expertise, and strong management experience. Our new Managing Director, Vince Scopelliti is a qualified solicitor in Victoria and has an extensive background across the whole investigations, governance and risk industry. Coupled with a proven track record in business development Vince will bring a renewed focus on customer service to the company.

Our merged business will facilitate service quality improvements through access to leading edge technologies, stronger infrastructure, professional development and training opportunities for our investigators, and by providing an experienced management team for an improved customer experience and seamless delivery of our professional services.

Improvements to data security, and quality systems mean our larger organisation protects your interests by reducing the risks to you of failures in business continuity, and provides the dependability and confidence that comes from using a reputable consulting firm.

Our combined network of  specialist workplace investigators across the country enables our business to ensure you have access to a more diverse highly experienced and qualified practitioners in your specialist industry anywhere in the country whilst still being guaranteed of the quality stamp of WISE Workplace.

Our new management team will be:

Vincent Scopelliti  
Managing Director
72 Faraday Street
Carlton VIC 3053
vince@wiseworkplace.com.au

Harriet Stacey
Chief Executive Officer
Unit 4, Rowell Marine,
1 Queens Parade
Newport NSW 2106
harriet@wiseworkplace.com.au

Andrew Hedges  
Operations Manager
33 Montpelier Road
Bowen Hills QLD 4006
andrew@wiseworkplace.com.au