News

Calling for EOI – Workplace Investigations and Mediation training!!

We have recently had some interest from our clients to run our popular Workplace Mediation and Workplace Investigations training publicly again.

 If we are able to facilitate getting a small group together we would love to assist in getting this off the ground, so we are calling for expressions of interests to see if you have any new or existing employees who may be interested in attending either of these programs?

The date for both courses is yet to be confirmed as we will work with you to coordinate and confirm the most suitable date for the training.

To find out more about the content of our programs click here.

If you are keen to express your interest in one of these programs or you have employees you would love to send along please let us know by close of business, Friday 24th August 2017 by emailing your EOI for the program(s) you are interested in to… email@peelhr.com.au

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Who should have access to an Investigation Report and can ‘Legal Privilege’ protect the confidentiality of an investigation report?

It is important to be mindful during a workplace investigation of who has access to the investigation report. We have been asked by many clients over the years for advice in relation to the extent to which a report should be shared within the business.

Should the Complainant and Respondent be provided with a copy of the report?

We strongly advocate that a report is shared only with those who have a responsibility to make decisions arising from the report. Why?

Firstly, to maintain confidentiality as far as possible for all parties to the investigation. Secondly, to protect the integrity of your organisations complaint/grievance process.

If reports are more broadly shared, it could have negative consequences for future investigations. Perception that confidentiality is not maintained could see complainants being reluctant to raise a complaint via your internal complaint/grievance process. Witnesses may refuse to participate or severely limit their evidence, having an adverse impact on the investigation process and outcome.

It is essential that complainants and respondents are provided with feedback regarding the findings of an investigation and it is confirmed to them in writing, however they are not required to be provided with a copy of the report unless your organisations policy or procedure specify this requirement.

A recent case heard in the Fair Work Commission highlights an example of where an employee terminated for bullying requested access to an investigation report as part of an unfair dismissal claim. The employer refused on the grounds of Legal Professional Privilege.

What is Legal Privilege?

Legal professional privilege is a rule protecting the disclosure of communications between a lawyer and their client when in the process of providing legal advice.

The case of Kirkman v DP World Melbourne Limited [2016] FWC 605 highlights that when legal privilege is effectively established and maintained the confidentiality of internal documents and advice can be protected from disclosure.

The employer received a complaint of bullying and instructed their lawyers to engage an independent investigator who investigated the complaint and prepared a report on the findings. The claim of bullying was substantiated.

Six months later the employee was dismissed. He filed an unfair dismissal claim requesting a copy of the investigation report and several associated documents to assist his claim. The employer refused, stating the report was legally privileged and the employee disputed the decision.

In this case legal privilege was upheld and the employer was entitled to refuse to provide access to the investigation report on the basis that;

• the investigator was engaged by the employer’s lawyers to assist in preparing advice for the employer;
• the investigators communications were only directed to the lawyers, not the business;
• document control was strictly established and maintained;
• the report was marked private and confidential; and
• the employer had not expressly or impliedly waived privilege over the document, partial disclosure for use in disciplinary discussions in relation to the allegations was permitted.

Interestingly, it was also noted that this was not a case in which the documents were required to be disclosed so that the employee could understand the nature of the allegations of misconduct put against him.The allegations were clearly put to the respondent in writing in the course of the investigation.

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For many HR practitioners and line managers, conducting workplace investigations can be a daunting task, even if you’ve been through training or completed investigations in the past, they present their own unique challenges…Am I following due process? Are my interview questions appropriate? Do I have enough evidence? Have I been reasonable in my assessment of the evidence? Are my findings correct?

Through purchasing hours in your Investigations Coaching Bank, PEEL can act as your specialist investigations sounding board, providing you with support and assistance as you track through your workplace investigation.

You can use your Investigations Coaching Bank hours to have PEEL:

• answer any questions in relation to your investigation
• help you frame allegations
• assist with the development of your interview questions
• review your investigation report
• consider your recommendations

The Investigations Coaching Bank can be used at any time over an 18 month period. So if you have hours left over from your current investigation, you can use them at a later date for any subsequent investigation.We can attend your workplace, talk over the phone or video conference with you.

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PEEL’s message to clients to take care of respondents during investigations has been reinforced in a recent case considering a workplace harassment investigation. At a recent client breakfast, PEEL shared learnings from the 2016 International Association on Workplace Bullying and Harassment conference. We spoke about the importance of being mindful during a workplace investigation to ensure support is also provided to the respondent.

Most of the research in relation to workplace bullying has been derived from the perspectives of the target of the bullying or witnesses; there has been very little research which has sought to examine the perspective and the consequences on the alleged bully when an allegation of bullying has been made against them.

Research from the UK and Australia presented at the conference examined bullying from the perspective of the accused and identified some common themes, which HR practitioners and leaders should consider when managing complaints of bullying and harassment.

Negative impact of the allegations on the accused’s health
Participants involved in the studies regularly reported taking time off work due to psychological disorders during workplace investigations. Notably, regardless if the allegations had been substantiated or not the research participants described similar levels of distress.

Isolation and lack of support
Most organisations have policies and procedures which offer support and assistance to those making allegations. However many respondents to claims of bullying state there is a clear lack of support afforded to them once complaints have been lodged and also during investigations, thus placing them in an isolated position.

Perceptions of organisational justice
Participants in the studies reported that although organisational policies place a focus on resolving issues at the lowest level, parties are often not given a chance to do this because there is a quick escalation. There was also a perception that complainants were shown greater empathy and treated differently to the respondent.

Importantly, the research supported the view that a person’s perception of fairness in an investigation is a key determinant on whether they decide to bring a further claim such as workers compensation or legal action. As such, aside from alignment with Values there is a key business driver to ensure the respondent is treated in a just and fair manner during the investigation is paramount.

Learning from a recent case - Hayes v State of Queensland [2016] QCA 191
A case was lodged to the District Court of Queensland by four employees who claimed their employer, the Maryborough office of Disability Services Queensland had breached their duty of care by not adequately supporting them during an investigation, whereby allegations of bullying and harassment had been made against them, leading to psychological injuries.

The Maryborough office of Disability Services Queensland’s investigation of bullying and harassment involved 26 complainants who made over 200 allegations against nine managers of bullying and harassment, the complaints were supported by the union. It was the second investigation of its type against one of the respondents over an 18 month period. Both investigations were conducted internally and resulted in the allegations being unsubstantiated. However, four of the nine respondents lodged an action in the District Court of Queensland. The employee’s complaint was not in relation to the internal investigation itself but that their employer did not fulfil its duty of care to provide them sufficient support at the time of the complaint and during the later investigation process which resulted in serious psychiatric injury.

The District Court of Queensland found that a duty of care did not arise and dismissed the employee’s claims. The four employees appealed the case, the Queensland Court of Appeal found that a claim could be made for failure to provide adequate support during an investigation.

Furthermore, it was found the duty of care was owed and was breached in relation to three of the employees, in that:

• The employer had awareness of the size and seriousness of the investigation into the allegations of bullying and harassment against the employees;
• Due to the size and maturity of the organisation they should have been able to foresee that if support was not offered the employees could suffer more than just distress; and
• Although the employees were offered counselling, no other support was offered and some of the employees were required to continue working with multiple complainants and were subject to picketing by the union and media coverage in a provincial town.

While the Queensland Court of Appeal found a breach of duty of care, the claim did not establish the psychological injuries had been caused by the breach.

The case reinforces that it would be necessary to consider the individual situation in the workplace investigation to determine whether sufficient support is provided by a global organisational support system or whether a more tailored support is necessary.

This case, and the research outlined above highlights the need to ensure support is offered to all parties during an investigation and to be mindful of how perceptions of fairness and organisational justice are managed.

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It’s great if your workplace investigation into misconduct, bullying or inappropriate behaviour can be managed internally. However, there are occasions when this is not possible or should not occur. Here are some ideas about when it is more appropriate to engage an external investigator.

When you lack the expertise

If you don’t have the expertise in conducting investigations internally, don’t risk it. Patricks Stevedores was criticised by the Fair Work Commission during an unfair dismissal hearing for exactly this reason (Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775). The Fair Work Commission described the internal investigation related to an incident of assault as having ‘serious and fundamental flaws’ partly due to the inexperience of the HR Manager who managed the process. The result was the claim of unfair dismissal being upheld, with Deputy President Sams noting:

‘Ms Green had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent's evidentiary case.’

When the incident or issue is particularly complex

An external investigator can also be an appropriate option where the situation is highly complex and contested. Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539 centred on the actions of Mr Farmer, a driver whose employment was terminated after being accused of using a mobile phone whilst driving a tram across an intersection. The incident was witnessed and reported by two off duty managers and the allegations were put to the employee leading to various contested accounts of when, how and why certain actions happened. The investigation was conducted by Mr Farmer’s depot manager. In upholding a claim of unfair dismissal, Commissioner Wilson stated that an external investigation may have been more appropriate:

‘Although Yarra Trams had a right to be concerned about the report of [the off duty managers], an objective and potentially arm’s-length investigation might have demonstrated to the company that their observations were not definitive and that, in the absence of other corroborative evidence or the admissions of Mr Farmer, the company risked relying upon “inexact proofs, indefinite testimony, or indirect inferences”.’

When you need to manage bias

Even in large organisations, workplace investigations can be politically charged and require a significant investment of time and energy, especially to keep them progressing in a timely manner. An external investigator can minimise perceptions of bias and since their focus is solely on the investigation, the result can be a quicker and less disruptive process.

• Additionally, it is important that there are separate people conducting the workplace investigation and making the decision about any punitive measures that may result. The role of the investigator is simply to gather evidence to determine the allegations and make recommendations on possible responses. In some organisations, there may not be the structure that allows two people to take on these roles.In that circumstance, you can’t outsource the decision making responsibility (as much as you may want to!) so it is best to secure an external party to conduct the investigation.

Engaging an external investigator may cost more upfront but if the situation requires it, they can help you avoid unnecessary complications and save time, energy and money.

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From our experience as workplace investigators, we would like to share our thoughts on a few ‘curveballs’ which could arise when you are conducting an investigation…

Curveball 1: What if an investigation party is reluctant to participate in a formal investigation? Worse, what if it’s the complainant?

What if a complainant, who was alleging bullying, is reluctant to participate in an investigation as they fear victimisation?  What if the complainant refused to participate in a formal investigation in relation to the concerns they had raised on the basis that if they were victimised as they strongly feared, it would impact their day to day work, their career path and ultimately their mental health. In this case the organisation was aware the employee had a known psychological illness and was faced with the complexities of determining how to deploy their WHS obligations to control the risk of exposing the employee to a known risk to their health and safety if they proceeded with a formal investigation.  It’s a hard decision.  The considerations in this type of case are:

• Is there any independent evidence which would allow an investigation to proceed without the complainant’s involvement?
• Is it possible to proceed with the investigation and protect the complainant from what they fear? What control mechanisms can you put in place to reduce the potential risk to health and safety?
• Is it possible to not conduct a formal investigation but instead put in place measures to eliminate or manage the risk of bullying? Are there other alternate actions which may be appropriate in the circumstances?

Curveball 2: Can I direct an investigation party to attend a medical assessment or to provide a medical clearance.

From time to time investigators will be faced with an employee whose behaviour suggests they may have an underlying medical condition affecting their mental health. These concerns may become apparent to the investigator prior to the investigation or during the investigation and may have the potential to impact on recommendations needing to being made by the investigator.

In Blackadder v Ramsay Butchering Services Pty Limited [2002], Justice Madgwick‘s decision (upheld by the High Court) emphasised that where necessary an employer can require an employee to provide medical evidence attesting to their fitness to undertake duties and where there is a genuine need for it, to also attend a medical examination to confirm their fitness.

But here’s the curveball…. What if the employee provides a medical certificate saying they are fit for duty, can you request additional information? There have been a number of recent cases which provide us with some insight on this.

In Columbine v the GEO Group Australia [2014] the employee provided a medical certificate and a medical report but failed to provide the employer with the authority for them to directly correspond with her GP. The Fair Work Commission found in the circumstances, in order to fulfil the employers duty of care they needed to ensure there was no risk to the employee or others on the employees return to work and continuing beyond their return to work.  As such, the employer has the ability to not only request medical information which could be from an independent medical practitioner or the employees treating doctor but also has the opportunity to discuss the medical information with the nominated doctor .

In Thompson & IGT (Australia) Pty Limited, the employer requested an employee see two doctors, a general surgeon and a psychiatrist. The employee attended the appointment with the general surgeon who concluded the employee was fit to perform his duties. The employee however refused to attend the psychiatrist appointment, asserting that such an assessment was beyond the bounds of his condition, (namely that it was a physical condition). In considering this matter, Justice Goldberg noted it was a well-established principle that an employer may give an employee a "lawful and reasonable direction" which, if reasonable and relates to the subject matter of employment requires observance. The key consideration  arising from this case is that the request for medical information can be made by an employer provided it is done so on reasonable terms  and it is reasonably necessary in the first instance for the request to have been made.

Such decisions to date reinforce that employers may under common law principles require employees to provide additional medical information or undergo a psychiatric assessment in some circumstances. Namely, where it is necessary for the employer to have available to them all relevant medical information to be able to conduct their business and where it is necessary to ensure the health and safety of all employees under their WHS obligations.

A case to watch out for will be Grant v BHP Coal Pty LTd [2015] FCA 329. This case is being heard on appeal and once concluded will provide us with further clarity around whether an employer can direct an employee to be examined by the employers nominated doctor. Keeping a watchful eye on the outcome of this decision will be important as it may amend the current state of play.

Complex issues such as these will always present as challenges to investigators. PEEL is aware that at an industry level Workplace Investigations guidelines are being developed for Local Government. Such guidelines will no doubt greatly assist staff charged with the job of conducting investigations.

Where you require additional support or expertise in Workplace Investigations, from investigator’s with Local Government expertise, contact PEEL HR on 1300 665 1441300 665 144 or at email@peelhr.com.au or Check out our website at www.peelhr.com.au

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Leaders are sometimes called upon to lead a performance management process for employees where there are issues of underperformance or misbehaviour. Emotions often run high during performance management meetings which can make them difficult to manage, especially when an external party is present as a support person. But what is the role of the support person? Are they just meant to sit and listen or can they speak on behalf of the employee?

A recent case before the Fair Work Commission sheds light on this issue. Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 dealt with an employee who claimed to have been constructively dismissed, i.e. forced to resign, due to poor treatment during the performance management process. One aspect of the complaint from the employee was that while they were allowed a support person at all meetings, they were told that this person was for emotional support only and was not to serve as an advocate on their behalf.

In dealing with this matter the Commission ruled, ‘Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.”

This does not mean that a support person cannot say anything but it does clarify that their role is not to speak on behalf of the employee. Businesses must be certain never to deny a reasonable request for a support person, and it is good practice to openly offer one and to be welcoming when one is in attendance during a meeting. However, the focus of the meeting can be clearly and confidently on a direct discussion with the employee rather than a mediated discussion via a support person acting as an advocate.

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The Background…

Over recent months PEEL has conducted a number of investigations which have centred around the ever growing issue of inappropriate language in the workplace. The critical question we are often asked is where do we draw the line? What if it’s a slip of the tongue? What if it’s in jest and humorous v’s abusive and offensive? At what point does the use of inappropriate language justify disciplinary outcomes or even dismissal?

To tackle this issue PEEL reviewed a number of recent cases on this very issue. Read on to review the key learning’s from these cases.

Context is critical…

We are all aware that societal standards have changed. Our use of robust language has become more acceptable in the public arena than perhaps ever before. Despite this being the case, such terminology may still cause offence in the workplace. The context in which language is used is critical when determining whether it is inappropriate or offensive.

In the case, Webster v Mercury Colleges Pty Ltd, an English as Second Language (ESL) teacher was terminated for delivering a lesson about the word “F**k.”  Whilst the Fair Work Commission (FWC) held that the teacher’s profanity in the classroom setting did give rise to a valid reason, the employer prior to termination did not provide the teacher with the opportunity to respond to the alleged incident  or explore the context in which the language was being used.  The Commissioner ruled that the age of the students was not of concern and the lesson was being taught with the intent of educating international students to ensure they did not use the phrase inappropriately. As such the decision to dismiss was deemed to be harsh, unjust and unreasonable. 

The context was also the crucial decider when a union organiser in Leahy v Liquor, Hospitality and Miscellaneous Union, called a junior employee an “arse licker” for sitting next to a senior union official during an offsite conference. The FWC deemed it was inappropriate for a senior employee to address a junior employee in such a manner. The Commissioner also reinforced that “how words and language are used and to whom it is addressed and in what setting is critical as to their meaning and effect.”

Has the language been deemed acceptable within the organisational context?

Workplace policies and disciplinary outcomes are compromised when swearing becomes the norm within a workplace. The recent case of Dalziel v Bilfinger Berger Services Pty Ltd reinforced this principle. In this case a construction worker was reinstated after being unfairly dismissed for swearing at his project manager. The workers language involved the use of the word “F**k” and “F**king.’  As one witness summarised to the Commissioner, “It’s a construction site mate, swearing is everyday language.”  The FWC ruled that the language did not justify dismissal as the use of such language had become commonplace on the construction site and the accused superiors had also used inappropriate language in front of their reports.

Is it against company policy or has it become culture? 

Comprehensive organisational policies which reinforce appropriate conduct, including the use of inappropriate language are crucial. The reinforcement of such polices places employers in a stronger position when taking disciplinary action. A recent example of this was in the Leadbetter v Qantas Airways Limited case. In this matter the FWC determined the employee had gone beyond the grounds of acceptability when he addressed a colleague as a “F**king pommy C***.”  The FWC advised the language “was directed personally to an individual and was demonstratively abusive and in direct violation of the companies Standards for Conduct.”  The FWC upheld the decision, stating there was a valid reason for dismissal.

So what’s the takeout? 

Peel HR are experienced in workplace investigations and can also facilitate workplace investigation training that is aimed at building the confidence and capability of line managers and HR practitioners in applying investigation techniques. For more information or advice around the above issue please feel free to contact us at, email@peelhr.com.au or phone (02) 4963 7373.

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Interviewing in workplace investigations is an art. Do you know what it takes; have you got the X-factor? Apparently, it is flexibility. Dr Becky Milne, internationally renowned expert investigator, is involved in a study identifying characteristics of expert investigators and she believes the X-factor is flexibility. She provided an intimate workshop in Sydney last weektoshare her methodology in cognitive interviewing and spoke about it's transferability to workplace investigations.

PEEL attended the workshop and thought the following tips might be useful to your workplace investigations -

• develop rapport straight up- interviewees will only talk to you if they like you. Dont use the old tactics of 'good cop, bad cop'. Make your goal to deal with respect and humanity.
• ask only a few questions - the interview is about the interviewee and obtaining their story/evidence. The less the investigator intervenes the more chance you have of getting complete and accurate evidence. As a general rule the ratio should be 80:20 talk time (ie interviewee : interviewer).So the key for you is the less questions you ask,the more successful investigator you are.
• get free flowing communication - initially allow the interviewee the opportunity to tell their story without interruption. Interruptions train the interviewee to give shorter responses which result in you obtaining less information.
• ask a few good open questions - this will increase the quantity of information you receive.
• look at the bigger picture, particularly in bullying investigations. Consider all things relevant to the 'story'. This will allow for consideration of risk management and systematic recommendations that will change the environment to prevent a recurrence of the incident.
• dont approach your evidence analysis as the majority rules - look deeper and consider alliances and relationships. A lot of similar evidence may mean people have been talking and the evidence is contaminated.

Given that bullying complaints generally relate to a series of incidences, it makes specific information difficult to obtain as the incidences often merge into each other in the complainants mind. Often specific detail can only be recalled by the complainant if an incident was unique or different for some reason. The best approach to obtain information in this sea of broad statements is to -

1. ask the complainant to give free flowing communication about the allegations
2. ask for specific detail about the first and last incident
3. ask for specific detail about unique examples.

This a different approach to taking the complainant through the examples of bullying chronologically as we often do. Becky Milne also emphasised carefully considering the physical characteristics of the interview in order to tap into the deep memory of the interviewee by facilitating their quiet and focussed attention. That is -

• find a seperate and neutral space.
• eliminate distractions - either sound or visually. An investigator should not be wearing loud clothes or engage non verbal behaviour that is distracting eg constantly checking their mobile phone/clock.
• plan for everything eg if you expect the interview to be long, plan for breaks and ensure there is water/refreshments available. Tissues might alsobe necessary.
• provide paper and pen so the interviewee can draw a diagram if necessary.
• set the chairs in a physical location of clock hands at 1.50pm/am (ie 10 to 2), not too far away from each other but not too close. This is a co-operative seating plan.

Above all dont approach the interview with confirmation bias. That is asking questions to get information around your hypothesis of what occurred. Be on guard as this may be subliminal !

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We all know there is a clear and important need for procedural fairness, yet our experiences show us that despite the views of the tribunals and the guidelines created by the industrial instruments, an organisations commitment to procedural fairness can be either reinforced or weakened by management actions taken at the time.

“The obligation upon the parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance”.. ~ Humphries v Cootamundra Ex-Services & Citizens memorial Club Ltd.

Take for example, the organisation who due to claims made by a complainant that the HR unit was bias, chose to remove themselves from any involvement in the investigation of the alleged matters. This claim was not founded just purely the perception of the complainant. However, the actions of this organisation prevented any challenge to the validity of the findings on this basis and increased the potential for the outcome to be respected by the parties involved.

Consider this in comparison to those who have been tasked to conduct an investigation and due to their own personal biases have not brought an open mind as they have perceived the respondent to be a loyal employee. Failure to have an open mind is breach of the “The rule against bias”, as the investigator is not able to give a balanced and considered assessment of all of the information and evidence.

Failing to correctly notify an employee that they are a respondent to a complaint, along with the details of the allegations that have been raised in advance of any interviews is a common occurrence. Additionally, we have seen managers delegate their authority to others to make these arrangements, however in doing so they have failed to ensure the notification is provided in a correct and proper manner. Any employee who is a respondent to a complaint of potential serious misconduct should be provided with a formal allegation letter in advance that provides sufficient detail allowing them to respond.

Often complaints of alleged serious misconduct are either not investigated or are significantly delayed by line management continuing to revert to informal grievance processes. Compliance with the procedures established by your organisation for the management of grievances is critical to ensuring that complaints are addressed in a timely manner. If it can be proven that due to the employers conduct or their failure to act, there has been an unreasonable delay in seeking to address a matter, then the process can be rendered unfair.

Many organisations carry out preliminary inquiries when they first receive a complaint. This provides an opportunity to talk with employees to explore the feasibility of a matter without all of the procedural steps associated with a full investigation. However, it should be remembered, that a preliminary inquiry should not be used as a means to catch an employee unaware. Once it is established that there is a case to answer then a formal investigation should be triggered.

Suspension of employees during an investigation may not always be necessary and should not be done simply because a decision has been made to investigate. Suspension often creates additional hurdles for organisations when they then need to re-integrate the employee back into the business. However, it is reasonable to consider suspension if you believe there is a high possibility the respondent will recommit the offence being alleged, the evidence may be tampered with or there is a risk to the health and safety of other employees.  Where suspension is necessary it is imperative that regular contact is made with the employee(s) whilst the investigation is ongoing. Ideally this should be done through an appropriate internal manager, not the investigator.

The importance of confidentiality in an investigation should not be overlooked. By maintaining confidentiality trust is built with the parties involved, it avoids the investigator being misled and furthermore it avoids criticism from a tribunal should a matter be contested at a later date. However, despite investigators best efforts to demand confidentiality of participants in investigations, breaches of confidentiality do occur.  Where they arise they should be pursued to maintain the integrity of the process.  Action should be taken by an appropriate internal manager to reinforce confidentiality obligations in an appropriate manner which may involve disciplinary steps.

PEEL HR can provide independent workplace investigation services from simple to complex matters. Additionally we run training for those who may be required to conduct workplace investigations. For more information on our investigation services or upcoming dates and details of our Workplace Investigations program contact us or in the office on: 02 4963 7373

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