Protecting Against Unwanted Sexual Advances at Work

- Monday, August 25, 2014

Protecting Against Unwanted Sexual Advances at Work

The definition of a workplace might seem relatively simple – the office, the work site, the place where you carry out your duties of employment. Yet a recent finding of the Full Federal Court has affirmed one judge’s ruling that the workplace can quite often extend beyond the four walls concept. It follows (as the majority of judges in this case recognised) that unlawful behaviour such as sexual harassment can occur within unconventional ‘workplace’ circumstances and venues.

Can a nearby pub be a ‘workplace’?

The case in question – Vergara v Ewin – involved unwanted sexual advances from a male contractor towards a female supervisor. Some of these occurred in the regular workplace, while other behaviour took place in venues that might ordinarily be considered off-site. One such place was a pub called the Waterside Hotel, in Melbourne’s CBD. The respondent stated that she moved a discussion about the unwanted advances out of the ‘regular’ office to the nearby pub, in order to feel safe with the applicant. She and the applicant had been alone at the office, and she wanted to continue the work-related discussion near other people. This became one of the harassment sites.

A question arose as to whether the Waterside Hotel could realistically be considered a workplace under s28B of the Sexual Discrimination Act, as in force in 2009. Firstly, the parties were found to be ‘workplace participants’ for the purposes of the Act, although the appellant was a contractor.

From there, the full court found that the pub was indeed a workplace in accordance with s28B(7): “A place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.”

In continuing to discuss the workplace harassment question, the parties were found to be carrying on the necessary work-related function while at the hotel.

Important lessons to be learned

The decision in this case raises important points for all workplace participants, whether they are employees or contractors. Unfortunately the scourge of sexual harassment continues to exist, and it is important to think through the potential situations that you may find yourself in if you are managing unwanted sexual advances from a colleague. Following a few simple guidelines can help you to protect yourself:

    • Be clear
    • Avoid alcohol
    • Avoid being alone
    • Report your concerns
Be clear

In this case, while the court agreed that the purpose of the meeting in the Waterside Hotel was to discuss the harassment, clearly this wasn’t understood by the applicant. If you choose to address unwanted sexual advances with the person involved, be careful that your actions can’t be taken as a green light. Keep the discussion at the office, keep it professional, and make sure you are within sight of your colleagues during the discussion.

Alcohol and sexual harassment are not a good mix

Work drinks are a common form of team bonding in many work places, but it’s wise to understand the increased risks of alcohol consumption in terms of lowering inhibitions. Thinking of letting your hair down with your workmates once you’ve moved discussions to the local pub? It certainly might pay to think twice about this.

Being alone means being vulnerable

Make sure you don’t find yourself in a situation where you are alone with the person who is making unwanted advances toward you. The presence of another colleague is often enough to deter harassment.

Report the situation

Even if you want to handle the situation yourself initially, it’s important to report your concerns to a third party, and make it known to the person involved that you have done so.

It pays to take heed of the dangers that can present themselves, both in the ordinary office setting and wherever ‘workplace participants’ are carrying out work ‘functions’. .

Education and vigilance

Employers must also continue to be vigilant in maintaining a safe environment for all people under their occupational control. Just confining the focus of anti-harassment measures to the four walls of your office environment might not be sufficient. Considering the growing fluidity of employment, all engagements between participants both on and off-site have the potential to create unfortunate scenarios. .

Education is essential – whether engaging employees, temps or contractors, employers should ensure that a zero-tolerance approach towards sexual harassment and other misconduct is conveyed from day one. Training, regular updates and modelling best practices can all assist in developing workplaces where safety and respect are core objectives. Off or on-site, this case demonstrates the significant problems that arise where unfortunate behaviour occurs between colleagues

How to Handle Workplace Bullying

- Tuesday, July 29, 2014

How to Handle Workplace Bullying

Is bullying a problem in your workplace? According to a regulation impact statement produced by Safe Work Australia, the prevalence of bullying in Australian workplaces is between 3.5 and 21%. The cost of bullying to businesses in terms of lost productivity and absenteeism amounts to millions of dollars every year, and being a victim of bullying can affect the physical and mental health of employees.

If you suspect bullying is a problem in your workplace, it’s important that the problem is addressed, but how do you tackle it without making things worse or aggravating the situation further? Here are a few suggestions to help you handle workplace bullying in your organisation.
Make sure you have all the information

Before you jump in to try to resolve the situation, it’s important to make sure that you have a complete understanding of the issues involved. It’s a good idea to speak to other co-workers who may have witnessed the alleged bullying and find out whether there are any underlying problems which may have contributed to the situation.

If you try to take further measures without having an accurate picture of what is happening, you could end up causing further conflict and making the situation worse. If you have a personal relationship or work closely with either of the parties involved, it may be worth taking a step back and asking HR or even an external investigator to help you.

Before taking further action you will need to evaluate whether the behaviour can be defined as bullying or whether it falls under a different category such as sexual harassment or discrimination. Sexual harassment and other forms of discrimination require a different disciplinary approach to bullying.

Minimise the risk of continued harm

Once you have evaluated the situation, the next step is to take short-term measures to prevent the behaviour continuing. It may take a while to come to a full resolution so in the meantime you may want to consider reassigning tasks, granting leave or taking steps to ensure that the parties involved have minimal or no contact.

Decide whether the matter can be resolved

If the bullying isn’t too serious, it may be possible to resolve the matter internally with a no-blame conciliatory approach or disciplinary measures for the person found to be doing the bullying. In more serious cases, you may need to conduct an in-depth investigation, especially if someone could potentially lose their job over bullying allegations. .

If you decide on a resolution, it’s important to make sure the person being bullied is happy with the outcome. They may wish to deal with the situation themselves first by asking the person doing the bullying to stop, and you can offer them support in this.

As an employer, it’s important that any actions taken are well documented. If your management and employees haven’t undergone specific workplace bullying training it is well worth considering. Anyone who may have to deal with bullying incidents should be aware of the legislation surrounding workplace bullying before they escalate an issue or take action themselves.

When Should You Report Workplace Bullying?

- Tuesday, July 22, 2014

When Should You Report Workplace Bullying?

Workplace bullying can be toxic to organisations and can have a long-term physical and emotional impact on victims. If someone you know is being bullied at work, it’s important to know when to report it.

Workplace bullying is defined as repeated and unreasonable behaviour which is directed towards an individual or a group of workers, and creates a risk to their health and safety.

Every situation is different when it comes to workplace bullying, and it can be difficult to know how serious it is. If there is an immediate risk of physical harm to an employee, then workplace bullying should definitely be reported. In less serious cases, whether or not to report the bullying to a manager or supervisor can depend on how comfortable the victim is talking to their supervisor, and whether they are concerned about repercussions.

When determining whether or not to report bullying to a supervisor, it’s important to decide if the behaviour is classed as bullying, or if it falls under another category like reasonable management direction or discrimination.

Here are some examples of workplace bullying that should be reported:

                • Repeated hurtful remarks about a person’s standard of work or them as a person, including comments about their ethnicity, sexual orientation, economic background or other factors.
                • Repeatedly excluding someone or stopping them taking part in activities related to work..
                • Giving someone pointless tasks which have nothing to do with their job.
                • Deliberately changing someone’s work hours or schedule to make it more difficult for them to do their work.
                • Deliberately overloading someone with work they can’t possibly get done in the required timeframe or with the available resources.
                • Physical bullying including pushing, kicking, grabbing or any other physical contact which is unwanted and repeated.
                • Threats of physical harm against a person.

Some activities which aren’t categorised as bullying include:

      • Reasonable management direction. .
      • Disciplinary action which is reasonable and in keeping with organisational policies and procedures.
      • Other forms of harassment including sexual harassment and discrimination. These should still be reported, but will be dealt with differently from workplace bullying.

If you are concerned about bullying in your workplace, it may be worth having a confidential discussion with a supervisor, or a health and safety officer, to determine whether further action should be taken.

Whatever the circumstances, it’s important that workplace bullying or intimidation doesn’t continue, as this can have serious repercussions for the wellbeing of the victims and other employees who may be exposed to the behaviour. It can result in an unhappy and unproductive workplace for all employees, not just the direct victims of bullying.

Bullying Claim Ended After Employee Dismissal

- Tuesday, June 24, 2014

Bullying Claim Ended After Employee Dismissal

A recent attempt by a former employee to take action against ANZ bank for bullying has been dismissed due to the fact that the employee is no longer working for the bank. According to the deputy president of the Fair Work Commission, the employee had no reasonable prospects of success so continuation of the case was considered unnecessary.

This dismissal was based on the fact that for a bullying claim to be dealt with in court there needs to be a risk that the employee would continue to be bullied at work in the future. As this particular employee was no longer working for the employer, the risk of future bullying had been removed and therefore there were no grounds for further action on the part of the Fair Work Commission.
Reasons for dismissal not relevant to bullying claims

The employee involved has opposed the move, stating that his dismissal from the organisation which took place while he was on paid parental leave, was invalid. He also claimed that he had been the subject of adverse action on the part of ANZ for making an anti-bullying application. In addition to this, there were a number of arguments made by the employee in support of his claims of an invalid dismissal and unfair treatment.

As the employee didn’t claim any breach of contract on the part of ANZ or refuse to accept the dismissal, the matter was considered not to have any bearing on the original bullying claims. According to the ruling, the employment contract was terminated, the employee accepted this termination and therefore bullying was not likely to be a problem in the future.

The matter being decided by the bullying case was considered to be unrelated to whether or not the dismissal was lawful or fair and this was treated as a matter to be dealt with separately at some point in the future. If, after the matter of the dismissal has been dealt with and the employee is reinstated, he will have the option of bringing a fresh anti-bullying claim to court.

No reasonable chance of success

When making the ruling, the deputy president stated that there was no reasonable prospect of success to the employee from continuing the claim. There is a provision in the Fair Work Act that action can be ceased if there is no chance that it will be successful. The deputy president noted that although at the beginning, when the application was made, there was a chance of success, the circumstances had changed and there was no longer any reasonable prospect of success.

In this case, success was taken to mean an order to stop bullying being issued against ANZ bank. As the employee was no longer working there, an order wouldn’t be able to be issued and therefore, even if the employee had a valid claim, there was no reasonable prospect of success.

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

Why Do the Rules of Evidence Matter in Workplace Investigations

- Tuesday, May 20, 2014

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

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

The importance of relevance

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

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

What happened vs what can be proved to have happened

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

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

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

Written by Vince Scopelliti from WISE Workplace  Melbourne office

No harassment no unfair dismissal - ruling clears Energy Australia

- Tuesday, April 01, 2014

On March 25th, an application against Energy Australia made by a former director of corporate affairs was dismissed at the Federal Court by Justice Julie Ann Dodds-Streeton. Former Energy Australia employee Kate Shea claimed that she had been made redundant in 2012 as retribution for sexual harassment complaints made previously and this was found not to have been the case.

Justice Dodds-Streeton stated that Energy Australia had sound business reasons for making the redundancy and Ms Shea’s claims had no reasonable basis and were made for personal gain rather than in good faith.

The allegations

The claims that were previously made against Energy Australia included allegations that managing director Richard McIndoe was previously involved in sexual harassment against a female employee at a party in 2006. Ms Shea also claimed that she had been the victim of sexual harassment in 2010 by then chief financial officer Kevin Holmes and that Energy Australia had a corporate culture in which sexual harassment was condoned.

An investigation was undertaken relating to Ms Shea’s complaints in 2011 and the results found that although Mr Holmes had made contact with her he had not sexually harassed her. After the investigation, Ms Shea sent a letter to Mr McIndoe accusing him, along with the CFO and the company’s HR director of concealing evidence and working to cover up a culture of sexual harassment within the organisation.

The letter is said to have contained a number of demands including one for a financial settlement, and threats that if the demands weren’t met in a specific time frame the letter would be sent to Energy Australia’s parent company in Hong Kong, CLP Holdings Limited. Ms Shea received a sum of $133,000 and returned to work in October 2011. She and her personal assistant were made redundant four months later after a company restructure.

The outcome

Justice Dodds-Streeton noted that Section 341 of the Fair Work Act 2009 has not yet been thoroughly tested from a judicial standpoint, and that there are still a number of significant aspects which are left unaddressed. Although there is no requirement for complaints made against a company to be justified or for an accusation to be true or proven, there is still a requirement for claims to be reasonable and genuinely held by the complainant. According to Justice Dodds-Streeton, the claims made by Ms Shea weren’t made in good faith but purely from the motivation of financial gain. The judge stated that she wasn’t convinced that Ms Shea had any real belief that her former colleagues’ conduct amounted to sexual harassment and this was apparent in her conduct as a witness.

The judge also determined that complaints made against an organisation need to be underpinned by a right or an entitlement. In Ms Shea’s case, there wasn’t enough of a connection between the alleged misconduct of Mr McIndoe against another female employee and the employment of Ms Shea.

Ms Shea had been seeking reinstatement and lost earnings which would have amounted to around $6M. The judge ruled out reinstatement, due to the fact that the trust required for an employee/employer relationship was gone. Energy Australia and the employees involved were cleared of any allegations of harassment and misconduct and the redundancy was found to have been made for sound business rather than personal reasons.

Public Service Misconduct: Hiring an External Investigator

- Tuesday, March 11, 2014

Allegations of misconduct can have a serious effect on employees and your agency’s public image. All employees who work for the Australian Public Service (APS) are required to abide by the APS code of conduct. If it is alleged that an employee has breached the terms of the APS code of conduct the agency they work for can either choose to investigate the matter themselves through their in house human resources department or they can engage the services of an external investigator.

Using an external investigator has a number of advantages but it’s important to be aware of some of potential pitfalls too. Here is a brief guide to help you select the best external investigator for your circumstances and avoid the repercussions of making the wrong choice.

The benefits of using an external investigator
In some circumstances it is simply more appropriate to opt for an external investigator over using in house personnel to investigate allegations of misconduct. These circumstances can include:

  • Where the agency is small and doesn’t have sufficient in house resources available to thoroughly investigate the matter.
  • Investigations requiring specialist expertise is required which can’t be supplied through in house staff.
  • When it’s unlikely that current employees of the agency will be able to conduct an unbiased or independent investigation.
  • Situations where there is a need for the agency to use a third party to maintain public confidence in the outcome of an investigation.

There are plenty of benefits to using an external investigator and many public service agencies choose to bring in a third party when they are investigating allegations of misconduct.

What should you look for in an investigator?
When looking for an external investigator it’s important to find the right individual or team, particularly if the allegations are serious or require specialist knowledge and experience. Here are some of the skills and attributes that make a good investigator:

  • Familiarity with the employment framework of the public service, including the Public Service Act and other relevant legislation.
  • A strong understanding of the Fair Work Act 2009 and its requirements.
  • Good interpersonal and verbal communication skills and the ability to put people at ease when conducting interviews.
  • Strong written communication skills and experience producing written reports which clearly present the evidence on both sides and discuss the reasoning process involved in any decisions.
  • Sound analytical skills and good judgement.
  • Awareness of the elements of administrative decision making including procedures for weighing up evidence and the need for a fair and balanced process.
  • Experience conducting administrative investigations and weighing conflicting evidence to find out the truth.

Allegations of misconduct, if proven, can lead to serious consequences for the employees involved and could affect their ability to work in the future as well as having a significant impact on them financially. It’s important that any investigations are conducted in a fair and unbiased manner to ensure that everyone is treated fairly and in accordance with employment law.

What are the risks of hiring the wrong investigator?
When an external investigator lacks the experience or expertise to handle an investigation appropriately it could lead to a decision being challenged in court and ultimately set aside. This can lead to a waste of time and resources for the agency involved and could make it more difficult for them to effectively enforce behavioural and conduct standards for employees in the future.

If you have made the decision to hire an external investigator for your public service agency make sure you choose a firm or individual with the skills and capabilities of carrying out a thorough unbiased investigation which complies with legal requirements.

WISE Workplace is on the Australian Taxation Office panel and has a long history of providing investigation services to Commonwealth agencies. All our investigators hold private security licenses and a minimum of Certificate IV qualifications in government investigations. Wise Workplace also provides nationally recognized training in government investigations, and is recognized as a national expert in investigating allegations of misconduct, bullying and harassment.

Contact us today to find out how we can help you with your investigation. The more rapidly and effectively you can deal with allegations of misconduct in the workplace, the sooner your organisation can move forward.
 

Workplace Bullying or Reasonable Management Action? - In Milan...

- Wednesday, March 05, 2014

As the sun rose over Sydney this morning, I got the news - WISE is going to Milan!

I will be presenting a paper at the 9th International Conference on Workplace Bullying and Harassment in Milan, Italy, on 16 June 2014. Below is the abstract I submitted and that got accepted;

WORKPLACE BULLYING OR REASONABLE MANAGEMENT ACTION? CASE ANALYSIS OF EXTERNALLY INVESTIGATED COMPLAINTS OF WORKPLACE BULLYING IN AUSTRALIA.
Author:  Stacey, Harriet.  WISE Workplace. Sydney, NSW, Australia

On 1 January 2014 The Fair Work Commission in Australia adopted a new jurisdiction over workplace bullying. Unifying the definition of workplace bullying at the national level the legislation is consistent with the Commonwealth Safe Work Regulatory agency ‘Safe Work”. Under this legislation workplace bullying is defined as ‘repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’. Specifically excluded from the definition of Workplace Bullying is behaviour, which constitutes reasonable management action. Determining when conduct is ‘reasonable management action’ or bullying is a key issue in the investigation of workplace bullying complaints and critical to minimising the risks of psychological injury in the workplace.

Employers struggle with early recognition of employees who are at risk of bullying through the inappropriate application of performance management strategies from those difficult employees who do not comply with reasonable requests or meet performance measures.

WISE Workplace is a private organisation that investigates complaints of bullying in government, not for profit and private organisations. Pulling from a sample of cases investigated by WISE Workplace over the two-year period of 2011 to 2013 this paper compares two cases of alleged bullying involving performance management and reasonable management action.

Case one involves an employee who experienced bullying over an 18-month period by her line manager. The target complained of threats to terminate her position; intimidating comments about whom she could speak to; unreasonable work expectations; delay in approving leave; failing to approve her performance plan. The target experienced long lasting/permanent psychological injury as a result of the bullying behaviour. The case was investigated and the bullying complaints substantiated.

Case two involves an employee who also alleged bullying over a 2 year period by her line manager. The target complained of a failure to approve leave; lack of procedural fairness in the investigation of complaints about her performance; phoning her whilst on sick leave; failing to be impartial in work allocation; making upsetting comments;  the allegations were found to be unsubstantiated on the basis of reasonable management action.

The paper details the two cases and compares and contrasts the circumstances of each case, how the employees were handled by their organisations in response to their complaints, the way the performance management was undertaken and details lessons to be learnt about identifying genuine cases of alleged workplace bullying early to avoid psychological injury developing or progressing.

Presenting author: Stacey Harriet e-mail: harriet@wiseworkplace.com.au

 

Investigator bias : How to avoid the mistakes of Qantas

- Tuesday, February 25, 2014

 

Keiko Adachi v Qantas Airways Limited 12 Feb 2014. [2014] FWC 518.

If you don’t want your investigation failing because you’ve stumbled into the sticky trap of “investigator bias”, take note of these lessons from Qantas in a ruling by the Fair Work Commission early this month. 

The FWC found in favour of the aggrieved stewardess, Keiko Adachi and declared that her dismissal by Qantas for gross misconduct was “harsh, unjust and unreasonable”.

An apparently simple altercation between Ms Adachi and her line manager over her “fitness to fly”, led to her dismissal for gross misconduct, just weeks before she would obtain her award for 25 years’ service.

Prior to the incident, which took place in February 2013, Ms Adachi had made complaints of bullying about her manager (the details were not included in the judgment) and had signed off sick for work-related stress.

On her return to work, her doctor issued a medical certificate declaring she was fit for flying duties, but not fit for ground duties. When Ms Adachi reported for a flight on the 17 February 2013, she presented the medical certificate and said she was “fit to fly”. However the certificate stated that she was only fit for “suitable duties” and not “full duties”, which is a stipulation of the Qantas “return to work” policy.  

Her manager, John El Khoury, said she could not fly that night, and would need to get a new certificate. Ms Adachi asked for the certificate back, but her request was refused. So Adachi took the certificate off the table and in the ensuing tussle between her and her manager, the certificate was ripped and scrunched.

Immediately afterwards, Ms Adachi reported the incident to the police, while the manager reported it to his supervisor. Qantas appointed a more senior manager to investigate the complaint lodged by Mr El Khoury. He found that Ms Adachi’s conduct had breached the Qantas code and warranted her dismissal.

The FWC criticised the investigation, stating it was “flawed” because the investigator had a close working relationship with Mr El Khoury and was unable to view his account of the incident as anything other than highly credible.

As you would expect, the versions provided by the two key participants were divergent; both admitted to a tussle over the certificate but disagreed who initiated it and who was responsible.

The investigator needed further evidence provided by other witnesses to corroborate events.

The first witness stated in an email that he saw the tussle and supported the complaint of Mr El Khoury.  But when the gravity of the situation was explained, he changed his evidence, stating he had not seen or heard what he initially claimed.

The investigator then sought evidence from another 12 witnesses, none of whom could provide any evidence that supported Mr El Khoury’s version. Despite this, the investigator showed a clear preference for Mr El Khoury’s evidence, discounting the evidence of the retracted witness and the other 12 employees.

This situation is commonly referred to as “investigator bias” .

So what can we learn from this case?  If you are an internal investigator; how do you stop yourself from forming a view based on your knowledge or opinion of one of the witnesses?

The answer is that it is very hard. In many institutions and businesses, internal investigators have offices in separate locations in company headquarters, and choose not to socialise extensively with the rest of the employees they are tasked to oversee.

Secondly, it is not necessary to interview all witnesses, but it is vital that the investigator canvass a fair distribution of witnesses to provide him/ her with a rounded view of events.

Despite the need for investigations to be conducted without delay, they should not be rushed – rushing people to respond when they may be on stress-related leave or when the investigator is not fully prepared, can lead to lack of procedural fairness.

When evidence is withdrawn, it is also vital that a full explanation is provided, so that the investigator can assess the real, underlying cause of the retraction; was the witness mistaken or were they targeted?  

Finally, in this case, the investigator failed to identify the complex nature of the IR landscape by contacting a worker whilst on stress leave for bullying,  failing to consider prior complaints of bullying lodged by the worker against her managers, the impact of a WorkCover investigation, and a police investigation and a perceived lack of procedural fairness provided to the respondent.

The case highlights:

  • The risks involved in using untrained internal staff to conduct investigations that may result in dismissal proceedings.  

Organisations should consider using qualified ‘investigators’ to gather and analyse the evidence prior to making decision about disciplinary action.  Where you use an external contractor always check that they have the necessary license and insurance.