Confronting Misconduct: Insights from the Public Service

- Tuesday, December 09, 2014
Confronting Misconduct: Insights from the Public Service

The recent release of the 2013-14 Australian Public Service (APS) State of the Service report provides some interesting kernels of data around workplace misconduct, including corruption and bullying. In particular, the report paints quite a discomforting picture of misconduct being on the increase – despite everything that the APS strives for via its statutory code of conduct, values statement and codified employment principles. 

Employers beyond the public sector can take valuable lessons from the report regarding the insidious nature of workplace misconduct. Beyond issues of performance and discipline, activities such as bullying and corrupt practices can have significant impacts on workplace health, staff morale – and the bottom line. 

Workplace trends 

So what elements of workplace misconduct does the vast APS face? And is this just a government thing – or should all sectors actually take heed of these trends around misconduct? The key issues raised in Appendix 6 of the report include: 

  • Misconduct accounts for 1 in 3 queries brought to the APS Ethics Advisory Service. 
  • Finalised code of conduct investigations rose in the current reporting year by 15%, from 516 to 592 investigations.
  • Substantiated breaches also rose in the same period from 75% to 81%, with a broader 20% increase since 2011. 
  • Interestingly within reporting trends, the majority of people in the workplace reported misconduct through clearly established mechanisms, such as an ethics unit or designated person in HR. In other circumstances, they sought outside help, such as from helplines or police.   
  • A disturbing 17% of employees experienced harassment or bullying, with a further 21% witnessing these behaviours in the workplace. 
  • The number of victims feeling able to report such misconduct fell from 43% to 37%. As some consolation, the reporting by staff who witnessed the harassment or bullying of others rose over the year. 

Sizing up the problem

There are certainly some sobering numbers there: misconduct and investigations are up, as are substantiated breaches. Yet victims don’t appear to be confident in reporting breaches. It is noble – yet unfortunate – that a victim’s colleagues will often need to report misdeeds. One glimmer of hope from the report is that employees will tend to use clear mechanisms for reporting misconduct, if these are provided. 

This is important to keep in mind; make the path clear and misconduct will be addressed before problems grow and/ or become entrenched. 

Communicate the basics 

So what do we take from these figures? Firstly, it is crucial to develop good communication between management, HR and other staff about the rights and responsibilities of everyone in the workplace. This includes clear induction training on misconduct, intranet updates and seminars, and providing informal opportunities in teams to discuss both misconduct and reporting paths. And it is imperative to explain the meaning of specific terms such as misconduct, corruption and bullying to all employees – don’t expect their knowledge to be complete, simply as a result of common-sense. Trainers are regularly stunned by the divergence of opinion about what is and is not appropriate behaviour in the workplace! 

Provide a clear reporting path 

In terms of the best mechanisms for report misconduct and bullying – just remember one word: accessible. Thinking logically, if a stressed worker in in danger of sustaining a workplace psychological injury due to bullying… or the employer’s profits are fast dwindling through misappropriation… the last thing a victim or witness needs is a complex reporting path. And in the longer term, the health, safety, performance and productivity of any business will improve when misconduct has been headed off at the pass. Forget dense forms and lengthy chains of discussion – have one or two simple methods that staff can utilise when reporting. Above all, encourage and commend the actions of any staff member who comes forward. Regardless of outcome, it is important to have issues of potential misconduct brought up in a timely way. 

Lessons to learn 

The mammoth APS is an employer that necessarily keeps an eye on the scourge of workplace misconduct. As evidenced in the State of the Service report, misconduct is disappointingly on the rise. 

Employers of all sizes can certainly take lessons from these growing numbers, ensuring that processes and training to counter misconduct are appropriately designed and embedded across the business.

Should You PUKE? Deep Listening in Workplace Interviews

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

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

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

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

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

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

Considering Cognitive Interviewing or Conversation Management?

- Tuesday, November 25, 2014
interview techniques
Considering Cognitive Interviewing or Conversation Management?

In carrying out workplace investigations, even the most seasoned investigators can grapple with selecting the right questioning techniques to use in particular circumstances. Choices can depend upon such variables as the nature of the alleged workplace problem, the character and cognitive make-up of each witness, and the amount of background information available to the investigator. In this article, we take a look at two valuable interviewing techniques: cognitive interviewing and conversation management. It can be demonstrated that proper use of these techniques will markedly heighten the quality and accuracy of the information collected. And such an outcome of course has significant repercussions for the standard of evidence that can be effectively incorporated into future actions.  

Cognitive interviewing – a massage for the memory 

In the early 1990s, psychologists Fisher and Giselman began to assist law enforcement officers to more effectively interview witnesses. Prior to this, the standard interview technique in police work was producing mixed results. It seemed that a fairly rigid investigation plan with conversation killers such as closed-ended queries and leading questions tended to taint the information gleaned. Utilising a number of techniques from psychological practice, the cognitive interviewing technique began to be introduced during witness questioning. Central to this was the desire to spark the memory in a way that would generate the most detailed and accurate data. 

Reinstating the context and enabling visualisation techniques can assist witnesses to recall past events. Simple strategies such as allowing the witness to close their eyes, draw a sketch, or think about their emotional state at the time the events occurred all aid memory recall. “Tell me everything that happened” may seem basic, but unless we explain the conversational rules at the start of an interview, we can’t expect a witness to automatically give us this information. Asking for the witness to go backwards in time also has the proven ability to jog the memory. Consciously going through key events in reverse order can have a sharpening effect on the memory, as the witness must set aside any rote story and concentrate more closely upon the details. Cognitive interviewing is all about finding open and creative ways to generate better recall. 

Conversation management – the careful testing of doubts 

One challenge for any workplace investigator is when open-ended techniques such as cognitive interviewing don’t appear to be working on a witness. Sometimes, despite utilising all available resources to heighten recall, hardly any useful information will be obtained. In such instances, conversation management can prove an effective way to reduce blocks and gaps that might occur in the interview. The existence of these frustrations – known as resistance – can tempt the workplace investigator to simply presume guilt. Surely, if a witness keeps resisting certain questions or appears to have gaps and inconsistencies during the interview, then they have something to hide? Or must be somehow dodgy? 

The danger in jumping to such conclusions is that the quality of the evidence drawn from the investigation might be irrevocably tainted by presumptive questioning. And the Briginshaw principle reminds us that evidentiary quality will be a key determinant of whether the balance of probabilities has been met. The beauty of the conversation management method is that it can assist in shedding light upon any doubts, in a way that is fair and respectful of the witness. The model combines open-ended questions with a framework for probing detail, enabling thorough examination of the account. It is important to bear in mind that gaps, oddities and behaviour changes might in fact be related to something other than deception, such as cultural differences, or trauma related to the incident. Conversation management provides research-backed techniques for getting to the bottom of any unclear or uncertain material.  

Widening our investigative toolkit

These two techniques – cognitive interviewing and conversation management – provide two different yet equally valuable tools for investigators to draw upon when conducting a workplace investigation. With no two humans alike, we will inevitably hit a brick wall or two when conducting our interviews in the workplace. Yet it pays to have a clear investigation plan for dealing with such eventualities, rather than winging it. If a witness becomes visibly confused, flustered or appears extremely uncomfortable in the process, then pushing on regardless might elicit low-quality material. With these and other proven questioning techniques in our investigative toolkit, we can certainly feel better equipped to delve into the vagaries of witness accounts. 

 WISE Workplace provides investigative interview training for HR managers and workplace investigators. Dates for 2015 are out now. 

The Cost of Ignoring Verbal Reports of Sexual Harassment

- Tuesday, November 18, 2014
Verbal Reports
The Cost of Ignoring Verbal Reports of Sexual Harassment

The recent matter of  Trolan v WD Gelle Insurance and Finance Brokers is notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. Long gone are the days when a written complaint of such behaviour is needed. Trolan demonstrates that in matters where such egregious behaviour is occurring in the workplace, employees don’t need to put things in written form in order to ‘inform’ of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

Daring to tell 

In July of 2008, Ms Trolan began work at her new place of employment – WD Gelle Insurance and Finance Brokers Pty Ltd (the employer). Between August 2008 and December 2008, Ms Trolan was subjected to a relentless assortment of unwanted and lewd sexual advances from a director of the company, Mr Gelle. Such behaviour included several physical violations, including circumstances where Ms Trolan was effectively trapped and unable to react. This was coupled with bullying behaviours that were corroborated by colleagues as ‘par for the course’ from the ‘screaming’ Mr Gelle. In September of 2008, Ms Trolan reported the matter over the telephone to another director of the company, Mrs Gelle (also the defendant’s wife). Mrs Gelle undertook verbally to deal with the matter. 

Silent damage

But no change occurred. Mr Gelle’s behaviour continued unabated, and in December 2008, Ms Trolan was consequently found by her doctor to have suffered a severe work-related injury. She was placed on WorkCover from that time. The essential causes of her diagnosed psychiatric illness were the sexual harassment and bullying that she had endured over a period of time while working at WD Gelle. And for part of this time, it was with the full knowledge of the employer. 

Listen out

Busy employers can be tempted to argue that they can’t be everywhere at once. Certainly not blind to the potential for unacceptable behaviour, there can however be an in-built assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Trolan, the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Trolan had a phone discussion with a representative of the employer was certainly sufficient to provide notice about the offending conduct. 

Lingering pain

The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered – as in Trolan – workers’ compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures of workplace health and safety can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act. A complex and damaging array of legal and financial consequences indeed. 

Words are enough 

And it is that failure to act that can cause so much preventable harm. At the moment where the director Mrs Gelle was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a sizeable breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as that faced by Ms Trolan. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 

Act early 

The lesson from Trolan? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $700,000+ for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website.

How Do I Know Whether to Mediate or Investigate?

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

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

Mediate the misunderstandings 

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

Investigate the irregularities 

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

What to watch in mediation

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

Unsuitable investigations

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

Surveying the scene

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

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

When Your Risk Assessment Differs From Official Findings

- Tuesday, November 04, 2014
Assessment versus Findings
When Your Risk Assessment Differs From Official Findings

When something goes wrong at the worksite, business owners and managers are often left to scratch their heads not only about how the event occurred, but also about the investigative process that follows. Given that a workplace investigator is an objective third party, workplace investigation reports can often raise issues that appear poles apart from your original risk assessment. In this article, we look at some of the common areas where your risk assessment for the business might be different from the findings of a workplace investigator. Importantly, we also provide tips about what you can do to address such disparities.

Currency of law and facts 
Risk assessments are ideally carried out regularly, utilising all available specialist information and laws concerning your particular workplace. In terms of workplace health and safety, plus industrial laws, it is not uncommon for changes to both statutes and cases to have an impact on workplace requirements. Without an understanding of the current legal state of play, you may have unintentionally overlooked workplace risks, which are then picked up by the workplace investigator. In this case, your risk assessment is out-of-date and can leave any number of circumstances unaccounted for. On the other hand, your risk assessment might in fact be based upon current legal and industry requirements – but the business situation may have changed. Extra staff, new premises or renovations might have created a problematic situation. If a workplace investigation delivers findings that show flaws related to currency of risk information, this can unfortunately be one of those situations of ‘knowing better next time’. But having regular risk assessments carried out by a trained internal or external professional can ensure that you have the best preparation for any future workplace investigation. 
Specialised knowledge
You may be of the opinion that your risk assessment differs from the investigator’s findings due to the investigator’s limited knowledge of your specialist work environment. It is legitimate to raise such concerns with the workplace investigator, particularly if the findings are likely to lead to further action. Remember though that it is not enough to talk in generalisations. Rather than saying: “I do have a safe environment and she knew not to use that ladder,” explain the detailed written policies and training that you provided about unacceptable/ acceptable systems of work and the place of particular items within that system. Note also that it is much better to talk through your concerns about discrepancies during the workplace investigation itself. Investigators are often disinclined to re-open a completed investigation based upon the thoughts of one party. Be open and upfront with the workplace investigator throughout, providing all available information on risk assessments, policies, procedures and staffing. 
Staying up-to-date
A risk assessment should show the risks facing the business, and your educated decision about how or whether to carry the potential for risky outcomes. It has to be realistic and as part of this, it must be current. Business is no place for wishful thinking, and such regular analyses allow you to see the risks with clear eyes. To keep future workplace investigation findings as closely aligned as possible to your risk assessment, current knowledge and understanding of the legal and industrial framework that applies to your specific industry is vital. You or a trained risk professional should know the current risk level for your specific business, and any steps being taken to reduce the burden of risk. Forewarned is forearmed, so it pays to prepare your workplace for the close scrutiny that will inevitably accompany any workplace investigation.

Investigating Fraud? When Do You Have to Tell the Respondent?

- Tuesday, October 28, 2014
Investigating Fraud
Investigating Fraud? When Do You Have to Tell the Respondent?

The possibility that an employee might be committing fraud can raise many emotions. As with other misconduct, disappointment can be pronounced. When fraud is suspected against either the business itself or customers, plain anger towards the potential culprit can also arise. It is this high emotion that creates the necessity for cool heads in any fraud investigation. If you are involved in an investigation where fraud is alleged, timing and a methodical plan are crucial to ensure that the process is sound. Depending upon the nature and extent of the fraud, the time at which the respondent should be told and/or interviewed can vary. The quality of any documented evidence you collect can have a notable effect on admissibility or weight in any later court proceedings. For this reason, adhering to procedural fairness in the workplace investigation will be vital. 

Get prepared

Your workplace investigation plan should include a basic timeline of actions. Top of the list will be the gathering of information relevant to the allegations of fraud. Be careful about how and from whom this will be collected. At this stage, as few people as possible should be involved in order to maintain confidentiality and the integrity of the investigation. Collect interview notes, documents, relevant screen dumps and any other physical evidence that purports to implicate the respondent in the fraudulent activity. This is also a good time to fully assess any possible motivations or overt emotional issues with the informant/s. Any later interview with the respondent needs to be based upon available facts – not any aspersions cast by an angry individual. Make a decision on any need for immediate action, particularly whether police need to be called if an employee is AWOL with fraud proceeds, for example, or data or money is currently being misappropriated. Once you have enough valid information, decide upon your next steps. It may be that the allegations against the respondent are clearly groundless. Perhaps there was a mere accounting error, for example. But if the allegations appear to have some substance, it might well be time to draft appropriate interview questions. Sometimes, the first person you talk to after the claimant is the respondent - but only after other documentary evidence has been secured. This gives them an early chance to explain their story, plus reduces the chances of workplace gossip or slander about the respondent snowballing unfairly. 

The interview

Having secured an interview time with the respondent, think through the nature and order of questions that you need to ask. The basic purpose of the meeting should be explained, without any blunt statements or accusations about the alleged fraud. It can help to be quite specific about the concerns raised by any informants: “There are concerns being raised about some anomalies that Brian found in the customer invoicing drive,” or “Your employer has some concerns about repeated discrepancies in reconciliations over the last six months”. Recalling the imperative for procedural fairness in the workplace investigation, maintain this objectivity throughout the remainder of the interview. Allow sufficient time for explanations, and ask inquisitive questions that demonstrate your open mind throughout the process.

Cater for reactions

Fraud is a serious accusation. Whether or not the respondent is involved in such behaviour, their individual emotions of indignation, shame and/ or anger might well surface. Assess whether the interview needs rescheduling, if a support person is needed, as well as any requests for legal representation. Also give the respondent options for response. Indicate that an immediate response is not required and they might prefer to respond at a later (agreed) time. Explain the remainder of your investigation plan and associated timeline for actions, in order to provide some sense of order to what might well be a moment of shock for the respondent. 

Cool heads rule 

The alleged fraud might tempt employers, owners and managers to simply confront the respondent in angry indignation. Perhaps understandable – but such action must be avoided in order to maintain the integrity of the investigative process. Remember, your objective in carrying out a well-constructed workplace investigation concerning the alleged fraud is to gather quality evidence in a fair and consistent manner. How and when to let the respondent know can be a delicate matter, dependent upon the nature and urgency of the facts in question. 

For training in the best ways of handling this type of investigation, WISE Workplace offers a Certificate IV in Government Fraud Control and a Diploma in Government Fraud Control.

Shades of Grey: Raunchy Material and the Lessons from Shea

- Tuesday, October 21, 2014
Lessons from Shea
Shades of Grey: Raunchy Material and the Lessons From Shea

In the recent costs hearing for Shea v EnergyAustralia Services Pty Ltd, Federal Court Justice Jessup helpfully took the opportunity to summarise the findings of Justice Dodds-Streeton regarding the original unfair dismissal proceedings. There, Ms Shea had unsuccessfully sought relief against alleged adverse action on the part of her employer. 

In a bad light

 Ms Shea’s accusations were substantial and relied upon various sources of information for purported corroboration. In his findings against the applicant, Justice Jessup spoke with evident disapproval regarding both the quality and the means of acquisition of Ms Shea’s evidence. Of particular note, sexually explicit text messages between two staff members had been retrieved forensically by Ms Shea as purported proof of sexual harassment in the workplace. His Honour stated that Ms Shea’s methods of obtaining both the phone and text messages ‘did not show her in a good light’, aligning with the substantive trial judgement as to the ‘irregular’ nature of the acquisition [57-58]. 

Unseemly acts 

But the inadmissibility of the texts – and the resultant forensic report – was not the only issue in question. Justice Jessup quoted with approval the original finding of Justice Dodds-Streeton – the text messages represented nothing more than ‘a private exchange between consenting adult sexual partners’ [quoted at 56]. Further, this private nature actually placed a duty of confidentiality upon any readers of the texts. 

Thus, not only was the material found to have been obtained abnormally, usage of the forensic report was both irrelevant to the workplace issue at hand, and malicious in nature. His Honour went even further in his disapproval, noting the ‘unseemly manner’ in which the phone was obtained, with a very obvious agenda in play to cause ‘embarrassment and humiliation’ to the other party [59]. 

Eyes on the court

In administrative proceedings, the rules of evidence don’t formally apply. So there is a sense in mediations, conciliations and reviews that parties can place it all on the table in order to find resolution. The idea here is that people can often experience a greater sense of procedural fairness in a less formal environment. Yet Shea reminds us of the considerable pitfalls that can occur in court proceedings when undetected irregularities have coloured earlier processes – inadvertently or otherwise. It is crucial that internal and external workplace investigators establish quality control mechanisms throughout all stages of information collection. Keeping any future court proceedings front of mind can assist investigators in overcoming the kinds of evidentiary taints that befell the applicant in Shea.   

Quality counts 

And where certain key material can only be collected in an unusual manner, corroboration of the information obtained can assist in enhancing overall quality and future admissibility. Potential evidence should be free of irregularity, irrelevance, confidentiality breaches and/or personal agendas. Certainly, administrative processes won’t require the stringent attention to rules of evidence that apply in court. Yet the ‘juiciest’ piece of information brought out at in an administrative forum might well become the trial stage’s most useless piece of scurrilous and ultimately inadmissible evidence. Worse – if found to be obtained for personal or ‘unseemly’ reasons, a hefty costs ruling is certainly a possibility for the parties involved.

What are Terms of Reference? Do You Need Them?

- Tuesday, October 14, 2014
Terms of Reference
What Are Terms of Reference? Do You Need Them?

Terms of reference (TOR) form a foundation stone for the commencement of any workplace investigation. Much like a recipe, they set out the core people and components of the investigation, as well as the boundaries and methods to be utilised. Without solid terms of reference, an employer’s well-meaning attempt to gather information and fix a workplace problem can fail, or cause even more problems. As well as establishing an understanding of what is required and by when, TOR create an excellent framework for the more detailed investigation plan. Terms of reference can prevent such pitfalls as misunderstandings, unintended breaches of privacy, and negative effects on relationships. 

When should the TOR be developed?

There are no hard and fast rules regarding how and when TOR should be drafted. Some employers start with a Statement of Complaint and flesh out the terms of the proposed investigation based upon this central concern. Others call upon the services of a workplace investigator to actually assist in drafting TOR, particularly where a workplace problem is vast, sensitive, and/or complex. Sometimes it is important to wait and collate some preliminary materials prior to pinning down the exact terms of the investigation. In any event, it is important to start working on your TOR sooner rather than later, and certainly once a workplace investigation is confirmed.  

what will the tor include?
The terms of reference represent what the employer and the workplace investigator have agreed upon. Not surprisingly, both parties are entering into a human territory where all sorts of sensitivities can crop up – emotional, occupational and legal. It is common sense that the TOR will be designed with these issues in mind, creating a clear framework for the investigation. In essence, the TOR should contain the ‘three R's’ of an investigation – the reason, the remit (or scope) and the report. 

The reason section of a workplace investigation TOR will include the general purpose of the investigation, the people and incidents known to be involved, and the types of questions that need answering. The remit or scope sets out the boundaries of inquiry, including documents, people and activities that can be explored by the investigator – and those that cannot. It also includes what is required from the investigator in terms of deliverables, such as interim reports and final actions. For example, this part of the TOR will specify if the investigator is simply fact-finding or is working with a view to dispute resolution or discipline. The TOR then specify what form the final report will take, who can be supplied with copies, and when it is due. Where no report is required and an oral discussion is preferred, the scope and purpose of this discussion should be noted.

What can the TOR achieve?
 As mentioned above, the circumstances leading to the need for a workplace investigation can be quite fraught. Concise and clear terms of reference help to ensure the smooth running of the investigation. They can prevent irrelevant issues being raised (such as old wounds) and provide an element of professional objectivity. Considering the need for procedural fairness in all aspects of employment law, TOR provide the means by which emotive or biased considerations can be eliminated from the investigation. Further, sound terms of reference provide an excellent starting point for the drafting of a workable investigation plan. For both employer and investigator, the chances of misunderstandings are reduced in relation to the many aspects of the investigation’s reasons, remit and desired report. Put simply, good terms of reference can be a guiding light through the sometimes-choppy seas of a workplace investigation.

The Reasonable Person Test Explained

- Monday, September 22, 2014

The Reasonable Person Test Explained

The ‘reasonable person’ test is one of those legal quirks that form an enduring part of the common law, despite being very hard to actually define. One human causing damage to another is certainly a tale as old as history itself. And judges in various forms have always had the task of determining if the damage caused was something that the ‘damager’ is liable to remedy. In a way, a bit of retrospective risk assessment has to be carried out by the courts in these cases. What exactly happened here? Who was involved? Was it an accident? Is anyone hurt? How can we fix things? Certainly, most torts (the kinds of acts or omissions that cause damage) are caused by pure accidents or mistakes.

Yet it’s never as simple as ‘oh, look, a mistake was made – let’s all move on’. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Due to the fact that within law the ‘reasonable person’ has a hypothetical presence in workplaces, schools, homes, streets and venues, it pays to understand the basic ideas and applications embedded within this legal standard. And in the context of workplace risks and potential litigation, it is particularly useful benchmark for employers and managers to keep in mind.

Does reasonable mean average?

The short answer to this is – no. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) ‘the man on the Clapham omnibus’. In Australia’s case, NSW courts modified this to ‘the man on the Bondi tram’, while in the matter of Re Sortirios Pandos and Commonwealth of Australia, the ‘man on the Bourke St tram’ made a Victorian appearance. These descriptions are certainly a good starting point for determining what a reasonable person would have done during the risky event that caused the damage. But the ‘reasonable person’ is actually a little better than the ‘average’ one. He or she will be quite risk-conscious, a little careful with activities, and very thoughtful when it comes to looking out for possible risks and dangers. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Our reasonable person is certainly quite prudent – but not invincible.

The ‘reasonable person’ in the workplaces

Risky and unfortunate situations arise everywhere in life - and of course the workplace is no exception. Injuries happen, enmity arises, harassment can occur, and unwanted advances are made. And the possibilities for damage, loss and distress to workers, contractors, visitors and clients are so extensive that some days, business owners can question their decision to open the doors! Yet in remembering the careful and prudent ways of the ‘reasonable person’ when it comes to workplace risks, employers can successfully prepare for and respond to hazardous scenarios. Importantly, remember that ‘action’ by an employer also includes ‘inaction’. Turning a blind eye to harassment between co-workers, putting off fixing the air conditioner in summer due to cash flow, and forgetting to wind up the extension cord in the hallway are the sorts of omissions that our ‘reasonable person’ in your situation wouldn’t neglect. Positive actions to prevent harm, such as sexual harassment training and reasonable warning of organisational changes, are examples of the way the ‘reasonable person’ carries on their business.

Going forward, make a rolling risk assessment part of your ‘reasonable’ workplace strategy.