Demystifying the balance of probabilities and the rule in Briginshaw

- Tuesday, October 22, 2013


What relevance does the 1938 divorce case Briginshaw versus Briginshaw have, seven decades after the fact, to workplace investigations in the 21st century? Find out in a two part series on WISE Workplace’s blogs.

Briginshaw v Briginshaw comes up a lot where workplace investigations concern matters which could involve criminal or other moral wrong doing; especially in the context of whether the “standard of the evidence” is sufficient, on the balance of probabilities, to substantiate the allegations.

What were the facts of Briginshaw?
Briginshaw was a divorce case in the days before no-fault divorce. The applicant husband sought a divorce and had to prove “grounds”. In this case, he claimed his wife had committed adultery.

But the only evidence the husband could produce was Mrs Briginshaw's admission that she had kissed the co-respondent, and hearsay evidence that the co-respondent had told a friend of Mr Briginshaw's sister in confidence, that he and Mrs Briginshaw had sexual intercourse. The judge refused to grant a divorce, because he was not satisfied “beyond a reasonable doubt” that the wife had committed adultery.

The husband then appealed on the basis, amongst other things, that the judge had maintained wrongly that the husband had to prove his wife's adultery beyond reasonable doubt.  On appeal, the High Court of Australia decision set a precedent about the standard of proof required in civil cases of this nature.

The High Court decision
The High Court held that although the criminal standard of proof did not apply, a finding of adultery would have grave consequences for the wife; “a loss of status” (remember of course that this case was heard in 1938!). So the evidence against her had to be closely scrutinized to ensure it was clear and compelling. On that test, the High Court held that the evidence lacked cogency and they rejected the husband's application.

On the issue of the civil standard of proof, Judge Dixon held (in a frequently cited statement):

Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

In cases such as this, Judge Dixon maintained that that the standard of proof should not be satisfied by “inexact proofs, indefinite testimony, or indirect references.”

Whilst the facts of Briginshaw are somewhat outdated given the introduction of no-fault divorce in 1975, its principles have withstood the test of time and are now enacted in state and federal legislation (see for example section 140(2) of the Evidence Act 1995 (Cth)).

What about workplace investigations and the standard of evidence?
Whilst the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying civil rules of evidence.

This is because workplace investigation findings usually form the basis of subsequent employer decisions concerning the employee(s) under investigation; such as terminating his or her employment contract.

If the employee disputes this decision, he or she may seek to legally challenge it. This type of challenge is a civil action (as opposed to a criminal one) and will ultimately be determined according to the rules of evidence that apply to civil matters.

If investigators use the same rules a court or tribunal, it is likely that the factual findings will be similar and withstand scrutiny. This practice gives employers a sound basis to rely on the investigation findings to make any subsequent decisions.

Check back with Harriet Stacey’s WISE Workplace blog next week to find out about how Briginshaw vs Briginshaw affects the balance of probabilities and some interesting case studies.


Investigation reports – Ten Key Ingredients for successful reports into workplace issues.

- Tuesday, September 10, 2013
 

Whether you contract an external investigator or conduct an investigation yourself, you need to record the process, document the evidence you gathered and articulate the evaluation you applied to make the findings. The Investigation Report needs to provide the decision-maker with all the relevant information to make fast, reliable decisions that won’t lead them into a court room without passing “GO”.

Effective decision making - as a result of any investigation process - depends on the quality of the investigative work and how it’s effectively communicated to the decision maker.

Whilst there is no one, perfect report design that fits all cases, developing a standardised report format can be helpful. This enables you to keep all relevant information in the same spot, so the reader will know where to find things relevant to their decision.

Having a range of two or three different report formats gives you the flexibility to fit most cases into a standardised layout.

Key points to remember as the writer:

  1. Write the report for the purpose intended.  If the report is going to the CEO for a decision on misconduct or to the complainant, you should consider the reader and purpose in every word and sentence you write. If there is likely to be solicitors involved or people who don’t know the business, your background section will need to layout clearly the case’s environment, the nature of people’s roles and any industry-specific background required to understand the facts reported later in the report.
  2. Address the terms of reference; before starting your report, make sure your report will answer the questions asked in that document. Providing a copy of the TOR is critical to understanding the report.
  3. Clearly layout the methodology used to gather the information relied upon in the report. Do this early on, before the analysis of evidence.  At a minimum, this section should layout who you spoke to and who provided which documents. List and annex any electronic evidence or computer analysis and social media searches. 
  4. Write in short sentences, using simple language. If you can say something in five rather than nine words, do it. 
  5. Use easy-to-understand tables to present key findings, where relevant. 
  6. When presenting the evidence and your analysis, consider how the reader will understand this without repetition. If you have clear allegations, consider presenting only evidence relevant to each allegation, together with an analysis. Then lead the reader to the finding which should flow logically from the evidence. 
  7. Make sure you present all relevant evidence in the report. Investigator Bias could lead you to omit certain pieces of evidence to persuade the reader to agree with your finding. This is a sure way to end up in court, with poor decisions based on a deficient report. 
  8. Images and diagrams can communicate more than a thousand words. But make sure it’s clear what they represent, where they were taken, by whom, to ensure the basic chain of evidence is maintained.
  9. Summarising large volumes of digital data can be a challenge; whilst you can provide original digital evidence on external hard drives, some sort of summary document will allow the reader to determine if they need to review that evidence personally.
  10. Don’t neglect to reiterate definitions and legislation if relevant to your report’s findings. Don’t assume that every reader will have an accurate knowledge of the relevant law in each case; a refresher helps everyone and saves them having to look things up independently.

 

Lessons for employers about bullying dismissals

- Tuesday, August 27, 2013

A recent case determined by the Fair Work Commission provides some important lessons for employers about bullying dismissals. 

In Harris v Workpac Pty Ltd [2013] FWC 4111 the Commission found in favour of the applicant and determined that her dismissal for gross misconduct for bullying a co-worker was unfair.

Mrs Harris was dismissed on 20 December 2012 with five weeks pay for gross misconduct for bullying a co-worker.  She was dismissed after a co worker resigned and made complaints of persistent bullying and humiliation against Mrs Harris during an exit interview. 

The complaints were investigated although no evidence of the investigation or the decision making process was provided to the Commission. Similarly no evidence was provided by the co worker to support her claims of bullying, aside from a statement containing general comments of how the applicant made her feel.

Mrs Harris was notified by email of the allegations just a couple of hours before being interviewed and despite disputing the allegations, she was dismissed the same day for gross misconduct.

Significantly, despite the employer conducting a quick investigation and finding that the behaviour complained of had occurred over a prolonged period of time, the employer failed to provide any evidence about the investigation or their reasoning for dismissing Mrs Harris.

The complainant’s allegations were vague and disputed and the Commissioner cited a lack of evidence from either party as a barrier to his decision making.

The complainant stated she previously complained at the time of the incidents but the employer did not produce evidence that any action had been taken in relation to these earlier complaints, nor any evidence that the complaints were investigated following the resignation of the co worker.

The Commissioner stated:
"while the Commissioner does not and should not endorse the view that "anything goes" at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with vigour and related to incidents which occurred some time ago. In my view the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities not divine angels employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is "guilty of bullying" and "gross misconduct".

The Commission also criticised the employer for failing to take into account that the majority of incidents complained about occurred when Mrs Harris’ husband was in a coma and subsequently died.  The Commission stated that this was a period of recognised stress and should have been considered in the determination of the dismissal.

Lessons for employers to take away from this case include:
  • The importance of line managers responding to complaints at the time they occur;
  • The need for the complainant to particularise the complaints - general statements going only to the impact of the behaviour are insufficient;
  • Do not assume that the level of harm is directly proportionate to the poor behaviour. 
  • The need for employers to document the investigation AND the decision making process related to disciplinary action;
  • Take into account circumstances that may mitigate against the behaviour.

 

For guidance on responding to complaints WISE Workplace has prepared a free e-book:

Stepping out the process – Responding to workplace bullying

- Tuesday, August 13, 2013

Does your team know the difference between workplace bullying and reasonable management action?

Do your policies and procedures reflect the new draft Code of Practice for Preventing and Responding to Workplace Bullying?


When an employee makes a complaint of workplace bullying, will your staff know how to respond, come January 2014?

Ensure you are not on the back foot, trying to pick up the pieces, when the Fair Work Commission steps in to protect one of your employees from ongoing bullying.

There many ways of breaking down information into bite-sized, memorable pieces, such as “top 3 tips for….”, “five ways to….”

The draft Code of Practice for Preventing and Responding to Workplace Bullying has nine principles of responding, three levels of response and 10 steps in the investigative process to investigate workplace bullying:

1.  Receiving the complaint
2.  Interviewing the complainant/target
3.  Plan your response – notifications/plan/TOR
4.  Interview witnesses
5.  Collect other evidence
6.  Draft allegations to the respondent
7.  Interview the respondent
8.  Evaluate the evidence
9.  Make the decision on fact
10. Report the findings

WISE has produced an easy-to-read, desktop reference, to help you respond to workplace bullying.

From the award-winning author, Harriet Stacey, this FREE eBook draws on the key points of the draft Code of Practice, covers the 10 steps of the investigation process and provides a SAMPLE REPORT for workplace bullying investigations.

Fraud and Corruption in the News

- Tuesday, August 06, 2013

 

Fraud and corruption were top of mind last week, and not just because the NSW’s Independent Commission Against Corruption handed down its findings in the Eddie Obeid investigation, while Greg Pearce, former NSW state Minister for the Illawarra, was stood down for corruption allegations.

At the same time, I joined some of the country’s top law enforcement and anti-corruption investigators at the Third Annual National Public Sector Fraud and Corruption Congress (hosted by Intrepid Minds) in Melbourne.

At the congress, the nation’s leaders in this field discussed recent cases of fraud, the challenges of public sector procurement, managing errant behaviour at a time of budget constraints and the new opportunities presented by social media.

One thing that stood out for me at the congress was the need for organisations to be alert to the early warning signs of corruption; their capacity to investigate even minor breaches of policy in a holistic fashion, and to ensure minor misdemeanours don't develop into major corruption networks.

An increasing number of professional standards officers are charged with employee misconduct in addition to corruption. The fact that Greg Rolph, APM, director of the NSW Police Professional Standards Command, observed at the conference, that he spends more time dealing with poor behaviour between police officers than cases of corrupt conduct, indicates a swing in this field.

Constant vigilance and action are required to manage fraud and corruption in our public service. Organisations can reduce their risk with these simple measures:

  • Identify those people or positions in the organisation with the opportunity/access to funds, banking and invoicing.
  • Review anti-fraud measures and accountability procedures. Ensure adequate procedures are in place.
  • Conduct audits to ensure procedures are followed throughout the organisation and regularly ask questions.
  • Educate staff and managers about appropriate and inappropriate spending.
  • When you find discrepancy, act. Nothing sends a clearer message about appropriate conduct than a case example.

How credible is this witness? The only way to know …

- Tuesday, July 23, 2013

As investigators we are often asked to assess the credibility of a witness: it’s the client question I most dislike.

As an investigator with a background in psychology and witness memory, I am far more interested in the reliability of their evidence. It is true, for example, that the drinking habits of a witness may have a bearing on their reliability in some circumstances. The frequency of their contact with police may also influence them in one direction or another.

But the question is hardly ever as simple as it seems. It’s not as if investigators have some special power to determine the reliability of a witness. The only way to come as close to possible to finding the answer is to conduct a thorough investigation.

An investigator needs to assess carefully the possible influences at work on a witness, including social and psychological factors. And there are potentially quite a few of them.

A recent discussion on LinkedIn produced this excellent list of issues to consider when determining the credibility of a witness. I thought it was worthy of sharing in this blog post.

The credibility of a witness is determined in part by:

  • the internal consistency of her/his testimony, and possible self-contradiction, 
  • whether it is true, 
  • the history/reputation/character of the witness, 
  • his/her motivation to lie, 
  • any relation of the witness to the respondent or defendant, 
  • any other conflicts of interest, 
  • whether the person is testifying without duress, 
  • whether the person makes statements against self-interest, 
  • falsifiability of statements, 
  • whether other witness testimony supports the witness's testimony, 
  • the witness's proximity to the alleged event in time and place, 
  • any cognitive impairments,
  • the language ability of the witness, 
  • correct orientation as to time/place/circumstance, 
  • differences and similarities to previous testimony, 
  • rote or repeated nature of testimony to other witness's testimony (which may speak to preparation or advice or coercion by a third party), 
  • is the level of detail provided appropriate to the nature of the circumstances,
  • corroboration of witness testimony,
  • biased statements by the witness.
(Marc Brenman – LinkedIn comments 10 July 2013, www.linkedin.com/pub/marc-brenman/2/93b/98/)

The point is this: assessing witness credibility involves an investigation, and the analysis of a lot of information - and that takes time and effort.

Investigating bullying: six common mistakes interviewers make

- Wednesday, July 03, 2013

The Fair Work Amendment Bill 2013 has just passed in the Senate, and come January 2014 HR managers will have to consider more carefully how their organisation responds to complaints of bullying.

The primary source of information in any complaint is the people involved; the complainant, the accused and co-workers who may have witnessed the events or tried to manage them.  

Developing effective skills on how to ask the right questions for an investigative setting is critical to the accurate determination of bullying complaints.

Interviews conducted by HR managers are often too short to really get to the issues at hand. Managers who have had prior dealings with the complainants often assume they know the events that are involved, but in reality they are just another witness and should be considered just as critically as other witness statements.

An investigative interview is not the same as interviewing for selection or recruitment; critical differences can often trip up even experienced HR professionals.

Planning your investigation and preparing for every interview is critical to success. Too much preparation, however, and you run the risk of conducting an overly-controlled interview, which doesn’t allow for fluid and interactive conversation.

Here are six common pitfalls that HR professionals should avoid to ensure the integrity of the interview and, potentially, the whole investigation:

1. Leading an interviewee to give specific answers where a predetermined decision has already been made, commonly called “confirmation bias”

  • For example, a senior manager conducts their own “quick” investigation after an incident, and says: “You see, what we think really happened is …don’t you agree?” It’s more common than you might think!
2. Using personal characteristics or stereotypes to assess credibility, rather than assessing the reliability of an interviewee’s evidence
  • You’re told the person you’re about to interview is a “bit dodgy”. They’re red-eyed, shifting in their seat and sniffing frequently. You interpret that as a drug habit - and don’t attach much weight to their account – only to find they suffer acute hay-fever and witnessed the whole incident!
3. Failing to ask for specific details of an event:
  • “They yelled and swore at me  in front of everyone in the meeting!” If you don’t ask for specific words, they probably won’t tell you exactly what was said or what happened in detail. What was it that made the person feel intimidated?
4. Asking for irrelevant information
  • It can be easy to let an interview wander off topic and/or confuse an interviewee with irrelevant history between two parties. Sorting out the wheat from the chaff can be challenging, but if you want the evidence sometimes you have to listen to the chaff and sort it out later.
5. Failing to ask questions about inconsistencies in accounts;
  • Be alert to differences within an interviewee’s account. Questioning them about these may reveal critical information. Also note inconsistencies in accounts between interviewees, and use the opportunity of subsequent interviews to clarify.
6. Using affirming comments and gestures during an interview which can be interpreted as bias on the part of the investigator
  • “Thanks for confirming that. That’s great. I’m pleased we can now confirm what happened.” Such comments may persuade an interviewee that you believe their version of events causing issues later if no apparent action is taken.


Making administrative decisions stick: procedural fairness at work

- Wednesday, June 26, 2013

 

A starting point for any court of law when assessing the legitimacy of an administrative decision is fairness – procedural fairness

Now that Safe Work Australia has released the draft model code for bullying in the workplace, employers need to ensure that procedural fairness is at the heart of their response to bullying issues.

A fundamental concept of law is that whenever you make an administrative decision about an employee you need to ensure that the process was procedurally fair.

This applies uniformly to managing misconduct and performance management. Ensuring that actions are taken as a result of ‘reasonable management action’ involves abiding by these principles and sticking to your policies and procedures.

The case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation.

The NSW Industrial Relations Commission found that the investigation process was so infected by procedural deficiencies as to contaminate the process.

The three key principals of procedural fairness are:
  • The right to be heard
  • The right to an unbiased decision maker
  • The right to have the decision based on evidence
Achieving an unbiased decision can be difficult, the decision makers must not be biased, that is:
  • Actually
  • Potentially or,
  • Perceived as being

It is not enough to get in a second or third opinion to form a committee of decision makers. Bias is assessed using the principle of one biased all biased, rendering any such decisions as biased as if they were made alone. 

When assessing whether there is perceived or potential bias, the law uses the reasonable person test to make the assessment: would a reasonable person in full possession of the same information think there was a potential or perceive a bias?

Flaws found by the Industrial Relations Commission (NSWIRComm 51 ) included:
  • the relevant decision-maker admitted that she: (a) had a pre-determined view of the outcome of the investigation prior to its completion and (b) took irrelevant matters into consideration in making her decision,
  • the initial investigator had been involved in one of the alleged incidents and had previous disagreements with the employee under investigation,
  • two witnesses present at the alleged incidents were not interviewed,
  • there were unreasonable delays in the process,
  • the employee under investigation was not given details of the allegations against him until he was interviewed many months after the investigation process commenced.
Putting this into practice in workplace investigations or in performance management practices:
  • The right to be heard means making sure the employee has enough information to know what they have done wrong, and provide them with an opportunity to be interviewed and provide their side of events.
  • Ensuring an unbiased decision maker means removing decision makers, managers and investigators who have had prior dealings with the employee that could affect their view of the current case. Anyone with a conflict of interest in determining the case without bias should be distanced from the proceedings.
  • The right to have the decision based on evidence entails collecting all the available evidence within reason, and assessing that evidence without bias or favour. Knowing how to weight the reliability of different forms of evidence is critical in drawing the correct conclusions in law.

Safe Work Australia Draft Code of Practice - Preventing and Responding to Workplace Bullying

Procedural Fairness: a practical guide for workplace investigators 

Five top tips on investigating workplace bullying

- Wednesday, June 19, 2013

New federal legislation passed this month means employers will need to pick up their game when managing complaints of workplace bullying.

Prevention is the best place to start. However, putting in place suitably qualified staff capable of conducting robust investigations and managing difficult cases is an essential strategy for any employer.

Previously, the investigation of workplace bullying involved managing the challenges of workers taking ‘sick leave’ and lodging a compensation claim for the stress caused by bullying at work.

Employers may also have had to navigate issues when HR became the subject of complaint when they assisted managers with performance management.

From 2014, however, HR policies and procedures will come under scrutiny directly by the Fair Work Commission, and staff will potentially have to handle prevention orders from the FWC.

This kind of oversight is not new to all business, but many will find this unfamiliar territory stressful. It will provide complainants with an extra level of control.

For the past 12 years, WISE Workplace has helped companies and government agencies manage investigations into bullying. Here are our top five tips for the successful management of these often difficult cases:

  1. Ensure procedural fairness is afforded to both complainant and respondent. This means allowing both parties to have their say.  More than just a procedural step, the key to procedural fairness is to ensure that this is done with an open mind and that key decisions are not made until ALL parties have been spoken to and supporting evidence gathered.
  2. Do not make assumptions based on your prior knowledge of parties involved. There are just as many frivolous, ill-conceived complaints as there are substantive ones - and some of the biggest bullies sit high up in an organisation.
  3. Do not allow staff to make ‘confidential’ complaints that may be about bullying. You have a legal responsibility to ensure that bullying behaviour does not go unchecked. If you receive complaints or whinges of behaviour that you consider could be bullying you will need to start an investigation regardless of the wishes of the complainant.
  4. Resist the temptation to perceive complainants as ‘difficult’ or disingenuous because they use or threaten external avenues for complaints. Lodging a workers compensation claim if you are harmed, lodging a complaint with the Fair Work Commission, a human rights commission, ombudsman or solicitor are all legitimate avenues for a victim of bullying. In extreme cases, victims may also legitimately report actions to the police. These things make the cases complex not implausible. 
  5. Make sure you understand the concept of the ‘reasonable person test’ when it comes to assessing management action and behaviour that may have a risk to health and safety.

Safe Work Australia has released the Draft Code of Practice - Preventing and Responding to Workplace Bullying for public consultation. Responses are invited until 15 July, 2013.

WISE Workplace offers training to HR professionals and managers on how to respond to workplace bullying, conducting investigations and making findings of fact. For more information you can call us on 1300 580 685.



WISE wins international book award!

- Wednesday, May 08, 2013

 

“Alison and I are thrilled to be a Bronze winner in the Business/Career/Sales category of the IPPY Independent Publisher Awards 2013, getting the recognition for the effort that has gone into the book is very satisfying”. Our book was selected from over 5000 international entries and the award ceremony will be held in New York at the end of May.

Writing Investigative Interviewing: A guide for Workplace Investigators was the brain child of Harriet Stacey,  “After conducting research in the area of investigative interviewing and training numerous police and other industry investigators I felt that there was a lack of advice for workplace investigators on how to conduct effective interviews. The book sought to make the amazing advances that research has made in this area accessible to practitioners and this award indicates that we have done that.”

Alison Page provided essential legal advice and edited the work to create a text that is legally correct, up to date and relevant for all investigators working in the industry.

Recognition should also go to Jill McMahon from Frankie and Boyd who provided excellent design and eye catching graphics for the book.

The Independent Publisher Book Awards were conceived in 1996 as a broad-based, unaffiliated awards program open to all members of the independent publishing industry. The awards are intended to bring increased recognition to the thousands of exemplary independent, university, and self-published titles produced each year, and reward those who exhibit the courage, innovation, and creativity to bring about change in the world of publishing.

Buy our book here...