How Fact-Finding and Disciplinary Investigations Differ

Vince Scopelliti - Tuesday, February 25, 2020

When dealing with allegations of staff misconduct, employers must be able to clearly delineate between fact-finding and disciplinary investigations. 

This includes communicating the difference to staff involved in the process.

fact-finding vs formal investigation

A 'fact-finding' process is often a necessary preliminary step in determining whether a disciplinary investigation is warranted. Following an incident or complaint, a third-party must interview involved parties to obtain objective information and determine whether the event merits a more detailed investigation.

Alternatively, the results may be sufficient to establish that there was no misconduct, or that the results of any further investigation are unlikely to provide any clear determination. Fact-finding may initially be a fairly informal process, although it should still be clearly documented.

It is extremely important that staff are made aware that a fact-finding process is simply that - not accusatory but only to gather information. This should be clearly spelled out in the organisation's policies and procedures, which staff participating in the process should be pointed towards.

By contrast, once an investigation has commenced, the process becomes much more detailed and formal. This includes the preparation of specific witness statements, collection of detailed information and supporting evidence, and the preparation of a report. That report will be relied upon by management and other decision-makers in determining the consequences following an investigation.

Disciplinary investigations are formal processes that involve specific allegations being put to employees. They are surrounded by confidentiality obligations, and are intended to determine whether an incident was a breach of policy which warrants disciplinary action, and not whether an incident actually occurred.

It is important to bear in mind that the point of a disciplinary investigation is to protect the rights of an individual subject to potential disciplinary proceedings.

communicating the process to the employees involved

Parties engaged in a fact-finding process should be advised clearly why they are involved.

Although it is an informal process, staff should be told that they are being interviewed to outline and assess matters of concern before management can determine a course of further action.

The purpose of the meeting should also be clearly outlined, as well as its status as part of a preliminary assessment or a potential precursor to a formal investigation. However, although the general nature of the query needs to be raised, there is no need for specific information to be divulged.

Before potential respondents are interviewed during the fact-finding process, management should give serious consideration to whether it is essential to do so. If it really is required, the potential respondent must be told that the next steps could involve moving to a formal investigative process and potentially the issue of misconduct allegations which will require a formal response.

what happens when the line becomes blurred

At any point when fact-finding starts getting too close to asking specific questions related to the subject nature of any potential complaint, it is straying towards an informal disciplinary investigation.

This is rife with potential implications for the business, particularly if formal disciplinary processes are commenced as a result. The rights of the accused employee are at risk, and any conduct endorsed by the business could result in unfair dismissal or similar actions by the employee. At this stage, it is recommended that a business involve the services of a formal, external investigator to finalise the process.

If you want to protect your business, draw a real distinction between fact-finding and disciplinary investigations. This can be achieved by using an external provider for all disciplinary proceedings. WISE Workplace offers independent, unbiased and expert third-party investigation services to support you every step of the way - from unpacking the facts of a workplace problem to analysing all sources of evidence raised in relation to misconduct. 

How to Navigate Counter Allegations in Investigations

Natasha Kennedy-Read and Vince Scopelliti - Friday, February 14, 2020

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of counter allegations means handling each complaint separately, being mindful of procedural fairness and adhering to the civil standard of proof. 

Divide ALLEGATIONS into separate incidents

It is important not to conflate cause and effect when it comes to counter allegations. If the allegation is that person A slapped person B, who, according to A, retaliated by stealing A’s smartphone, these two allegations must be investigated separately.

It may be that that person B had nothing to do with the smartphone’s disappearance, or the slap never happened. 

By looking at them as two unrelated incidents, investigators will not ‘miss’ important evidence, such as A accidentally leaving their phone in a meeting room.

keep procedural fairness top of mind 

The smartphone theft/disappearance may only come up when B is being investigated for the alleged slap. The alleged wrongdoer makes the counter claim in an interview that was up to that point unknown.

In effect, this means there are two allegations under investigation. Depending on the circumstances, this new information may require the interview to be suspended while further inquiries are made by the investigator. 

While it may be tempting to view the counter allegation as 'tit for tat' failing to investigate this new complaint could be viewed by a court or tribunal as a denial of procedural fairness by the employer.

Many unfair dismissal claims are successful because the employer in question failed to afford procedural fairness to the alleged wrongdoer.

The civil standard of proof

While investigating allegations and counter allegations, compartmentalising each alleged incident, its timings and events ensures impartiality and clarity.

This means taking care with unwitnessed and testimonial evidence (hearsay). Vivid descriptions of events may sometimes be compelling yet have no bearing on actual events. Finding an impartial witness to an event can short-circuit this problem, but it can be difficult. Just because person C saw B running from the bathroom crying does not mean the cause was a slap from A. 

Investigators should apply the civil standard of proof when assessing evidence. This means that for an allegation to be substantiated, the evidence must establish that it is more probable than not that the incident occurred.

The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: 

  • Relevance of the evidence to the allegations. 
  • Seriousness of the allegations.
  • Inherent probability of an event occurring.
  • Gravity of the consequences flowing from a finding.
  • The likelihood that the required standard of proof will be obtained.

Employers and management must at all times remain unbiased. Just because a counter allegation is made during an investigation does not mean it lacks substance. It may be that the counter allegation carries more weight and is of a more serious nature than the initial claim.

It can be challenging for investigators when presented with counter allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, as well as formal qualifications such as Certificate IV and Diploma in Government Investigations.



Racial Discrimination at Work

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 05, 2020

We are all familiar with the more obvious signs of workplace discrimination; but with targeted racism and xenophobia spreading faster than the Coronavirus, it is vital to be aware of the more nuanced and subtle acts of discrimination at work. 

Queensland has seen MP Duncan Pegg slam a phoney health department bulletin that warned online communities to avoid areas with high proportions of Chinese residents. In France, East-Asian communities began the now global #imnotavirus campaign, highlighting discriminatory comments from “are you dangerous if you cough?” to “stop eating wild animals then infecting everyone around you.” 

This problem is not new. In Canada in 2003, a similar wave of outbreak-fuelled xenophobia cost Toronto an estimated C$1bn, prompting public health officials to remind Canadians not to let ignorance triumph over respect in their communities.  

This viral endemic has already had a global impact on small businesses, schools and communities around the world, and workplaces are far from immune. Queensland surgeon Dr Rhea Liang said that “misinformation” on the virus has led to racially motivated remarks such as were made to her at work last week. Dr Liang’s patient refused her routine handshake, saying “you might have coronavirus” in front of her colleagues and several medical students. 

Most Australian workers are not at significant risk of infection, and employers and employees alike should be aware of the legal pitfalls they may encounter, and harm they may inflict, in attempts to protect themselves from the virus. In Dr Liang’s case, her colleagues were immediately supportive, but she worries about more vulnerable people exposed to racism that results from the stereotyping. 

The Racial Discrimination Act 1975 (RDA) makes it unlawful to discriminate against a person because of his or her race, colour, descent, national or ethnic origin or immigrant status. This extends to expressions of racial hatred against another person, and discriminating in the provision of services, entertainment and facilities or on less favourable terms and conditions. 

WHAT Does this mean for you?

We are all familiar with the obvious signs of racial or xenophobic discrimination, like slurs, segregation, targeted aggression and spreading racist rumours. Refusing to serve or deterring customers on the basis of their nationality or race, out of fear of Coronavirus is also an obvious and unlawful form of discrimination. However as a modern employer, it’s important to recognise the more subtle and nuanced forms of racism which can go unnoticed, and therefore be more damaging than overt behaviours. 

It is likely that racism at work is vastly underreported. 20% of Australians experience racism every year, but the Australian Human Rights Commission receives just several hundred racial discrimination complaints annually. 
More subtle and dangerous examples of discrimination include:

  • Xenophobic or racist ostracism of, or hostility towards, colleagues or customers in their workplace.
  • Avoiding contact or proximity with, or hostile body language towards people on the basis of their skin colour or nationality 
  • Unintentional or subconscious behaviour 

Subconscious biases and assumptions, even with positive intentions regarding safety or risk to others can all be considered racist behaviour. 

Prevention is always better than cure, and as an employer, workplace culture starts with you. If you are worried about your workplace culture, contact us to organise a Cultural Review. 

SO, how can i prevent racial discrimination from infiltrating my workplace? 

Education: 

Education on racial discrimination at work empowers employee understanding, sensitivity and conversation. Training programs are an important tool for eliminating more subtle discriminatory behaviours, by highlighting the nuanced nature of racial and cultural experience and necessity for sensitivity, and avoiding unintentional or subconscious infliction of harm. This can not only reduce incidences of discrimination but also create a positive culture where employees support each other, demonstrate and monitor their own standards of conduct and can minimise the emotional and psychological impact of external harm to their peers.

Conversation:

Creating space for productive conversations about race and discrimination at work is vital to a positive workplace culture. To encourage employee participation and make the most of these conversations, frame them in a positive and constructive way.

Outline the purpose and goals of the conversations from the outset:

  • Discuss views and experiences relating to racism in a non-judgmental and safe environment 
  • Learn from each other’s experiences and gain understanding that people experience racism in different ways
  • Reflect on intention and how we can unintentionally cause racial harm to our peers or colleagues 
  • Identify opportunities for growth within the organisation and develop systems for positive change 

Be prepared to support employees who may lack understanding of the real prevalence of racism and need for proper attention. People who are not part of a minority group are likely to have less experience of racism, so the nuanced nature of modern discrimination might come as a surprise. Constructive conversations can help these team members challenge their preconceptions, and help them to approach the issues with awareness and understanding. 

For tailored, expert and neutral third-party training programs or conversational facilitators to improve your workplace culture and tackle complex issues such as racial or xenophobic discrimination, contact WISE Workplace today. Working with an experienced facilitator or training provider such as WISE minimises the risk of tricky power imbalances countering your efforts to eliminate racial discrimination at work. 




Managing Risks in Workplace Investigations

Vince Scopelliti - Wednesday, December 11, 2019

managing risks in workplace investigations?

By its very nature, a workplace investigation involves sensitive and contentious information.

When a workplace investigation is required, whether this is outsourced to an external investigator or conducted in-house, it is necessary to be aware of the risks which could eventuate.

What are the key risks?

These include: 

  • Potential Breaches of confidentiality

Each party involved has the right to confidentiality. A breach of confidentiality occurs when other people/ parties are made aware of the investigation, which could cause "injury" to the complainant or the accused. Types of injury include reprisal, injury to reputation, defamation, ostracising the employee, physical altercations, or the exacerbation of mental health issues such as depression or anxiety. Of course, this is not an exhaustive list of consequences that could arise if confidentiality is breached.

  • Failing to take "timely and determinative" action

In a situation where disciplinary action such as dismissal is ultimately required, delaying action could potentially prejudice the company's position in any subsequent legal proceedings. This is because a tribunal is likely to find that, if the behaviour was sufficiently serious to warrant dismissal, it would/should have been dealt with as soon as possible. Further, if matters remain open and are not dealt with in an appropriate timeframe, there are greater chances of the issue causing conflict, uncertainly and humiliation within the workplace.

  • Risk of litigation
In matters where the actions and integrity of individuals are likely to be called into question, the risk of litigation is always significant. It is crucial that steps be taken at all times to minimise this risk, or position the company in such a way that it has a defence towards any litigation. 

  • Risk of further costs

Certainly, in situations where a company tries to save on costs by minimising the expenses of investigations, and subsequently needs to "fix" the investigation by engaging external investigators or solicitors, expenses are likely to increase. In many cases, it is better to incur appropriate fees and expenses at the outset, rather than having to pay reparatory costs.

How can you mitigate these risks?

In order to minimise the risks associated with investigations, it is prudent to follow a consistent process for each and every one. This includes:
  • Having a process map, which identifies what evidence should be obtained and which witnesses should be interviewed. 
  • The collation and review of evidence by the investigator. 
  • Interviews being conducted by an investigator, who also catalogues facts.
  • Analysis of the information acquired, in addition to determining if additional fact-finding will be necessary.
  • A determination, made by the investigator and relevant parties based on a review of the findings. Internal stakeholders will work with the investigator to determine how best to communication the decision to concerned parties. 
  • A resolution, where the investigator will document the steps and actions taken. The investigator will also arrange required follow-ups with involved parties to ensure that effective remediation has occurred as planned. 
In addition, it is essential to ensure the investigative process is comprehensive and compliant with the requirements of procedural fairness, as well as sticking to the principles of confidentiality. 

By following these steps, a company ensures that, even if litigation becomes inevitable, it is "court ready" and has a legally sound investigative process and findings which it can demonstrate to lawyers. 

Additional steps to minimise the risks of an investigation being challenged include:

1. Ensuring that all allegations are particularised before they are provided to a respondent. By doing this, a company ensures that a respondent cannot say that they were ambushed or otherwise unable to prepare a defence. 

2. Providing clear and transparent information about the investigation process, including how and when it will occur. A respondent should never be engaged in informal interviews as a way to test the waters, as this could result in subsequent complications. By the same token, arranging for external investigators from the outset can substantially lessen risks such as allegations of bias against internal investigators. 

3. Ensuring that nothing suggests that a 'predetermined outcome' has been arrived at. This includes removing any wording such as "bullying" from the complaint document. Instead, such matters should be framed, for example, as "allegations of alleged bullying".

4. Effectively balancing the need of timeliness in the investigatory process against ensuring that respondents have sufficient time to respond allegations. 

If you are concerned about the investigation process at your workplace, you can take simple and active steps to address these concerns. WISE Workplace is an expert within the field of workplace investigations and also offers training for your staff. 
 

Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

Audio Recording or Written Statements?

Vince Scopelliti - Thursday, November 07, 2019

Appropriately recording evidence is a crucial part of workplace investigations.

For investigators, this can cause a significant dilemma as to whether it is preferable to rely on written statements, or obtain audio recordings of interviews conducted during the investigation.

Here are a few of the main considerations for each method.

Audio recordings 

An audio recording is effectively a verbatim record of everything that is said during the interview process. It may be particularly useful to conduct audio recordings during initial witness or party interviews, so that these can be transcribed and used to confirm the evidence which has been gathered.

It is essential that all parties are made aware that interviews will be recorded. This should also assist in setting expectations that nothing said during the interview can be considered "off the record".

Significant advantages of audio recordings include:

  • Simplicity. It is easier for the investigator to conduct an interview without having to take contemporaneous notes. The practice of taking notes can be disruptive to the interview process, breaking both the interviewer's and the interviewee's concentration and the "flow" of the conversation.
  • Creation of an accurate record. Written statements may be considered to be ambiguous or open to interpretation - however an audio recording is fairly difficult to refute.
  • Reinforcing significance of the process. If an audio recording is produced, involved parties can be left in no doubt that an investigation is being taken seriously.
  • Flexibility. If it is difficult to arrange for a party to be interviewed in person, modern technology means that interviews can be recorded by telephone or video. This introduces greater flexibility into the recording process.
It is important to remember however, that it can be easier to contest what is recorded in a transcript, rather than in a written statement which the interviewee has been asked to sign.

written statements

By contrast, a written statement is a document which is produced as a summary of the contents of the interview. Generally, it is produced after the interview, based on notes taken by the interviewer or an offsider. 

Although it is extremely unlikely that every word said or every implied nuance during the interview will be recorded in a written statement, a key advantage of this type of evidence gathering is that witnesses will have the opportunity to review their written statement. The interviewed party can then sign the statement, or refute the contents.

In order to be effective, the statement should be produced as soon as possible after the interview has concluded, while it is still fresh in everybody's memory.

procedural requirements for interviews 

When determining whether an interview should be supported by a written statement or an audio recording, it is important to bear in mind that certain organisations or agencies have policy and/or procedural requirements preferring one method of evidence collection over the other. Further, in the event that a witness prefers not to have the interview recorded, an investigator cannot rely on this method.

The interviewer should give thought both to the personality of the interviewee, and the subject matter of the interview, when determining the best method. If it is intended that the interview proceed on a casual or somewhat informal basis, relying on a recording is likely to be considered overkill.

Audio recording is also reliant on technology functioning properly. In the event that a recording device malfunctions or does not record properly, there is a risk that the interview will not have been recorded at all. This could mean that the entire process needs to occur again - or alternatively, that there is no evidence supporting the interviewing process.

THe importance of flexibility in investigations

Unless company policy dictates one method of evidence collection over the other, this is always a decision that should be made based on individual circumstances.

As is generally the case in workplace investigations, there is never a "one size fits all" approach that can be utilised on every occasion. Investigators must be prepared to make an assessment on which method of evidence collection is appropriate on a case-by-case basis.

WISE investigators have extensive experience in conducting investigative interviews and collecting evidence, whether by audio recording or written statement. If you require established procedures to be followed or would like flexibility during the investigation process, WISE offers investigation services to assist. Additionally, if your organisation is seeking advice and training on interview techniques, WISE offers short courses and resources to upskill your staff.

When a Pre-Determined View Leads to an Unfair Investigation

Vince Scopelliti - Thursday, October 31, 2019

Procedural fairness must be top of mind, for all organisations when conducting a workplace investigation. Failing to allow an employee sufficient time to respond to an allegation or taking a pre-determined view of the outcome of an investigation, for example, proceeding with terminating employment, can leave an employer open to an unfair dismissal claim. 

The importance of observing all elements of procedural fairness when conducting a workplace investigation is highlighted in the Fair Work Commission decision of Mark Andrawos v MyBudget Pty Ltd (U2018/2379). 

the facts of the matter 

The applicant, Mr Andrawos, commenced employment at MyBudget in July 2016. He came to his role, ultimately as a personal budget specialist, with a significant financial industry background, and was supported by tertiary qualifications. During his employment, he received numerous compliments, but was also informally and formally counselled for behaviour including "corner cutting", lateness and a failure to follow procedures correctly.

Mr Andrawos received a total of twelve informal warnings and eventually three written warnings for a variety of misdemeanours, including inappropriate comments made to a female client, resulting in a final written warning being issued. Despite having received the final warning, Mr Andrawos was subsequently involved in two further disciplinary processes. The first regarding his punctuality and the second related to inappropriate conduct with a female colleague.

Mr Andrawos then formed a friendship with a young man, Mr McBryde-Martin, which ultimately led to him providing financial recommendations as to what Mr McBryde-Martin should do with a sizeable inheritance he had received. Eventually, Mr Andrawos suggested that his friend come to MyBudget as a client, on a "friends and family" discount. Mr McBryde-Martin subsequently received financial advice and recommendations.

At one point, Mr Andrawos suggested that Mr McBryde-Martin transfer some $90,000 into a MyBudget account and offered to act as co-signatory. This upset Mr McBryde-Martin's mother (against a background where there was, although ultimately unfounded, some suggestion that Mr Andrawos had been drinking and gambling with Mr McBryde-Martin). His mother complained to MyBudget and Mr Andrawos was immediately escorted from the building and suspended. After some investigation, Mr Andrawos was dismissed from his employment. 

THE need for procedural fairness

The Fair Work Commission considered that Mr Andrawos' suspension and ultimately termination had occurred without sufficient procedural fairness.

Specifically, it was concluded, that he had not been afforded the opportunity to provide the necessary response and context to his employer.

Evidence supporting this conclusion included the fact that Mr Andrawos was initially given less than 24 hours to prepare a response to the allegation letter he had been issued.

Further, despite requesting statements provided by his colleagues, Mr Andrawos was denied access to this information and to the telephone call recordings with Mr McBryde-Martin, and the screenshots of text messages, which were being relied on by MyBudget as evidence in the disciplinary proceedings.

Taking a pre-determined view 

The Fair Work Commission was critical of the fact that there was evidence supporting the finding that a pre-determination had been made by the employer, before the investigative process has occurred. It was particularly noted that the employer appeared to be prepared to only undertake an investigation in form and not in substance - that is, that the employer had already decided to terminate Mr Andrawos. It was also held that Mr Andrawos was also prevented from putting forward his "defence" to his managers at an early stage, which reinforced the conclusion of the existence of a pre-determined outcome.

The evidence put forward to the Fair Work Commission suggested that a key decision-maker at MyBudget, had not been briefed with all relevant information prior to conducting a fact-finding interview, again critical in supporting a conclusion that a pre-determination had already been made. Moreover, no additional enquiries were made after the conclusion of the fact-finding process, most notably that no attempts were made by the employer to speak with Mr McBryde-Martin, regarding the nature of his mother's allegations. 

THE need for separation between investigator and decision-maker

The fact that the investigation was conducted internally at MyBudget by two people who ultimately were also the key decision-makers in the termination process, was criticised by the Fair Work Commission. This perceived conflict of interest tainted the investigation process and the termination decision and was directly related to the conclusion that, while Mr Andrawos' dismissal was neither unreasonable or unjust, it was deemed to be harsh. This highlights the importance of an investigative team, whether internal or external, collecting information and material on an objective basis, before providing it to the ultimate decision-makers for a determination.

This case demonstrates the importance of observing the elements of procedural fairness when investigating workplace matters. A former employee will likely be successful in an unfair dismissal claim, where an employer has entered the investigation process with a pre-determined view of the outcome. To assist your organisation with following a fair and reliable investigation process, WISE offers both training services and external investigation services

Outsourcing or In-House Investigations?

Vince Scopelliti - Thursday, October 03, 2019

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations involve potential criminal conduct or there is an actual or perceived conflict, outsourcing may be the best option.

We examine the different circumstances in which investigations might best be outsourced or kept in-house.

outsourcing vs internal 

The key benefit of conducting workplace investigations internally is the ability to potentially deal with a matter swiftly and cost-effectively. The obvious reason here is that staff tasked with conducting an internal investigation, already have an understanding of the internal processes and procedures of the business. Although time away from normal duties is likely to be required, there is no additional cost associated with tasking existing staff to conduct an internal investigation.

On the other hand, depending on the nature of the allegation, existing staff may be lacking in capacity or capability to properly conduct the investigation. This is particularly likely to be the case if the allegations relate to potential criminal conduct which requires police involvement.

In addition, if the allegations are sensitive or have been made against a staff member who would ordinarily be involved in conducting the investigation, it may not be appropriate for the investigation to occur internally.

Whether the investigation is outsourced or conducted internally, it is essential that there are clear delineations as to who will be conducting the investigation. Further, the ultimate investigator must be provided with the applicable investigation policy and procedures which must be followed.

risks of handling an investigation in-house

As noted, there are numerous potential risks of handling an investigation in-house. Chief amongst these is the fact that the internal staff may lack the necessary skills or training to adequately understand the complex nature of the investigation. This could have significant ramifications if there are demonstrable gaps in the process, as this may ultimately invalidate the findings and any final decision which is made.

Having staff without the requisite experience or skills, conducting an investigation may also mean a failure to comply with legal obligations. In the event that the investigatory process results in termination of employment, litigation or other legal action, any failure to duly comply with all the legal and regulatory requirements, may potentially result in an adverse decision for the company.

The possible apprehension of bias in an internal investigation is significant, particularly if the employees who are conducting the investigation have a close personal or professional relationship with the complainant, the respondent or any of the witnesses. In a small company, or in a situation where a member in a senior leadership position has allegations levelled against them, this potential apprehension of bias is even greater.

This could also result in complaints of pre-determined outcomes, where staff involved in the process may argue that the investigation was not conducted in accordance with the principles of procedural fairness. Any relationship (whether positive or negative) between the investigatory staff and the parties involved in the investigation is likely to come under significant scrutiny. This may open up the investigatory team to suggestions that the investigation was not conducted impartially or fairly.

Factors for considering whether to outsource 

Impartiality and transparency in the investigative process are always crucial considerations. In situations where there are especially sensitive allegations or the staff involved are likely to resort to post-investigatory litigation, any potential concerns regarding failures in process or impartiality can be addressed by outsourcing the entire investigation.

Similarly, if time is of the essence (particularly when staff have been temporarily stood down and it is important that the investigation process is concluded in an expeditious fashion) outsourcing the investigation may be the preferable outcome. 

This is because external investigators are able to devote themselves completely to the investigation process, while existing employees will most likely need to continue on with their day-to-day work.

the benefits of outsourcing

Although there is a cost associated with the outsourcing of an investigation, there are added benefits. Investigators with specialist expertise are able to deal with complex matters, and are best placed to provide reports which are more likely to be relied upon by the Fair Work Commission.

The majority of contemporary workplace investigations come with their own set of challenges and complexities. If you do not have the time or resources to conduct an investigation or you require an experienced investigator, WISE offers both supported and full service investigations to best assist.  

Interview Techniques for Workplace Investigations

Vince Scopelliti - Wednesday, July 24, 2019

In any workplace investigation, there will be multiple competing factors for an investigator to consider. One core issue is developing the appropriate interview strategy.

Investigative interviewing requires careful consideration of the purpose of the investigation, and exactly who will be interviewed. There is also the question of tone - ensuring that the interview remains cordial and does not begin to resemble an interrogation. 

At WISE Workplace, we have a wealth of experience in investigative interviewing, including the best practice interview techniques to bring to the task.  

the purpose of the investigative interview

The purpose of the investigative interview is to glean relevant information about a workplace allegation in a manner that is professional and fair. 

In devising a good investigation strategy, the interviewer will carefully select who is to be interviewed during the process. 

People with first-hand knowledge are the key - not those who simply heard a rumour or were told something second-hand. Such statements constitute hearsay, and can reduce the weight of the evidence and the overall value of the investigation if relied upon. It is important for the investigator to identify and interview those people who were directly involved, or who witnessed a situation first-hand. 

Ideally there will be enough witnesses available to corroborate evidence. If facts such as the identity of an alleged bully can be verified between witnesses, or certain actions can be adequately cross-checked, the resulting findings and report are likely to be sound. 

Having a support person available for witnesses is always recommended. Being interviewed for a workplace investigation can be stressful for any of the parties. The presence of a trusted support person can help to calm the witness.

interviewing or interrogating? 

It is vital to create the right environment for the interview. At a fundamental level, the interviewer should avoid any method of questioning that could be seen as interrogating rather than interviewing.

Keep the tone conversational and allow enough time to develop rapport across the interview. Inviting questions around how the interview will work, plus describing procedural aspects like recording and note-taking can assist in reducing anxiety. 

State the obvious. For example: "This is a difficult situation involving certain allegations in the workplace, and we appreciate your help here today".

Offer the witness the option to stop and clarify any questions and to take comfort breaks if needed. Firing off questions and requiring immediate answers is no way to develop rapport and will not illicit the best information and or evidence. 

Adopting a stern or hostile demeanour is unproductive and can also lead to claims of bias. A professional interviewer should never see themselves as a TV detective with a rough attitude and a light shining in the respondent's face! The interview is not seen as a technique used to extract a confession from a witness. Building good rapport is the key to a quality investigative report that stands the test of time.

high-quality interview techniques 

The experienced interviewer understands how to conduct the workplace interview with transparency and objectivity. While the personal information of others needs to be protected, the witness should be informed of all relevant material relevant to the allegations. Even alarming or distasteful allegations should be dealt with professionally and objectively. 

Building rapport with a witness is essential for effective interviewing. Structured processes such as the PEACE model of interviewing can help interviewers to cover all aspects of a professional interview. 

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. The model provides eight steps that should be undertaken which includes:

PLANNING: Examine what planning and preparation need to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed. 

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.  

Other tools such as active listening and open questions are also excellent ways to gather the best information, without raising problems of biased interviewing - perceived or otherwise. 

Don't rush the witness as they tell their story. Ask open questions, which allow the witness to provide a spontaneous and genuine description of events, rather than being fenced in by closed questioning or unnecessary interruptions.

Mastering the Investigative Interview 

Obtaining first-hand witness evidence by way of interview is essential to uncovering the facts of a matter. However, conducting interviews into serious workplace issues such as bullying and sexual harassment can be a difficult and sometimes a daunting task. 

WISE investigators have mastered key interviewing techniques and have extensive experience in conducting investigative interviews across industries. We have developed a comprehensive guide to steer HR professionals and investigators through the process. Purchase our book Investigative Interviewing: A Guide for Workplace Investigators for the best tips on successful interview techniques.

How to Write Letters of Notification and Allegation

Vince Scopelliti - Wednesday, July 17, 2019

During the process of conducting workplace investigations, it is generally necessary to prepare letters of notification, and later, letters of allegation. 

We take a look at the difference between the two, and provide some tips on how to prepare these important documents. 

notifying the parties involved

The letter of notification serves as confirmation that an investigation is going to be launched. These formal documents are sent to the respondent, the complainant and any witnesses involved in the investigation. 

It communicates how the process of the investigation will occur, who will be conducting it, as well as detailing the involvement required from the individuals.

For the complainant, this will generally mean the formalisation of their complaint and participation in an interview. A respondent will also need to undergo a formal interview and be advised of their rights, such as having a support person attend. 

A letter of notification should ideally be prepared and sent as soon as an investigation plan has been finalised.

the elements of a letter of notification

When writing a letter of notification, it is important that it contains specific details including:

  • What exactly is being investigated.
  • Who is conducting the investigation. It is important to identify which members of the organisation will be involved.
  • A formal request for interview. 
  • The offer of a support person to all parties who will be interviewed.
  • A reminder for all parties involved to maintain confidentiality around the process, and the potential consequences of a failure to do so. 

Writing letters of allegation

Although similar to a letter of notification, a letter of allegation contains more detailed information. Instead of being addressed to all the parties involved, only the respondent will receive a letter of allegation. 

The letter should clearly set out: 

  • Details and particulars of the allegations. This information should be as specific as possible, to give the respondent a genuine opportunity to respond to the allegations. 
  • A request for supporting documents. The respondent should be advised of the opportunity to provide any information or evidence supporting their position. 
  • A formal request for interview. Although this has already been identified in the letter of notification, the letter of allegation reiterates the requirement for participation in the interview process. The letter should also reiterate the right of the respondent to have a support person involved in the process. 
  • The letter is required to stipulate if there is a finding of misconduct, what disciplinary actions may be considered and imposed. 
  • A further reminder of the need to maintain confidentiality.  

A letter of allegation should be sent after the complainant has been formally interviewed. This means that detailed allegations can be put to the respondent. 

Do's and do not's when preparing letters of allegations

When preparing a letter of allegations, it is important that procedural fairness is maintained. The respondent should have only clear allegations put to them, supported with evidence where available of the conduct or behaviour alleged. 

The letter of allegation should avoid making any conclusions about the investigation. 

Importantly, it should also demonstrate that the investigators and decisions-makers involved are objective. 

Communication with the parties to a workplace investigation is critical in ensuring a fair and considered approach is taken. Failing to comply with the steps of procedural fairness can impact on the soundness of investigation outcomes, findings and recommendations and leave employers open to decisions being overturned. 

WISE Workplace provides training in investigating workplace misconduct. This training is aimed at providing practical skills that enable you to draft procedurally fair and legally compliant letters of notification and allegations.