workplace investigations – top 5 keys to success national local government human resources...
TRANSCRIPT
Workplace Investigations – Top 5 keys to success
National Local Government Human Resources Conference
Grevis Beard, Worklogic
WORKPLACE INVESTIGATIONS:
HOW DO YOU RESPOND ?
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WHAT WE WILL COVER TODAY… Triage first, then act: ‘Why is this investigation
necessary?’ Clearly and accurately identify what to investigate Appoint the appropriate investigator Deal properly with ‘scope creep’ Conduct the investigation in a fair and reliable way
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WHY IS THIS INVESTIGATION NECESSARY ?
• Where the alleged actions may breach policyA question: Do your policies incorporate all the required legal standards of workplace behaviour?• Where serious disciplinary action will arise if breach is
found proven… • Where you need an undisputed, objective, factual
basis for disciplinary action
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WHY IS THIS INVESTIGATION NECESSARY ? (cont)
• When your policy, relevant contract or EBA requires that you investigate in this situation.
• Where allegations are so toxic, serious or widespread that no other approach is viable
• Governance/compliance/legal risks• Other? e.g. (pre-empting reputational risk…)
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POLICY OR CONTRACTUAL REQUIREMENTS: A CASE EXAMPLE
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
After a 12 day tour, Ms Romero, an Officer on a supply ship, Far Swan, emailed HR, alleging bullying by her Captain…
What was in this email….?
Ms Romero’s email:“[Captain Martin’s] inappropriate behaviour
needs to change but this is a matter for Farstad management to address. My intention is to
continue my professional development through study and return to sea to what has been up until now, a productive and happy working
environment with Farstad”.
WRONG DECISION !
AND A POLICY BREACH TOO…
Undertaking the formal investigation was in itself a breach of the Workplace Behaviour Policy.
Why ?
AND A POLICY BREACH TOO… The Policy required Ms Romero to
actually nominate a particular course of action under the Policy (either informal or formal), which she had not done.
AND A POLICY BREACH …(CONT)Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
The email should not have be considered as a ‘formal complaint’ under its Workplace Behaviour/Grievance Policy.
It did not refer to that Policy, made no reference to a ‘formal complaint’ and did not contain details of the complaint.
AND A POLICY BREACH …(CONT)
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
The breach of policy also amounted to a breach of Ms Romero’s employment contract.
This is because the policy formed part of the contract of employment
AND A POLICY BREACH …(CONT)
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177
The policy was not aspirational or directive, but rather a contractual promise.
PARTICULAR TIPS…• What does your policy actually require?• Start thinking now, about the post-
investigation tool/s you may also need…• Make sure you are acting consistently
regarding similar situations…• Is there any danger of any perception of
adverse action? Document and communicate.
CLEARLY AND ACCURATELY IDENTIFY WHAT TO INVESTIGATE
• Factually describe actions, omissions or words: Who? What? Where? When? How often?
• Be organised in chronological (or rational) order• Number each allegation distinctly• Include dates or duration, so the event is clearly
identifiable• Omit material not capable of being proven, or not
relevant, or indeed inflammatory !
UNCLEAR ALLEGATIONS: A CASE EXAMPLE
Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915 15 vague allegations of inappropriate behaviour
by the respondent manager The investigation was fundamentally flawed
PARTICULAR TIPS…• Engage with the “letter of complaint”• Clarify ambiguous words or phrases• Do the allegations reflect the language set out
in your policies?• Use the active tense (c.f. passive tense)Again, a question: Once it is identified, should it all proceed to investigation ?
IDENTIFY AN APPROPRIATE INVESTIGATOR
Consider practical, strategic, risk implications. The investigator MUST be, and be seen to be, impartial by all parties, and so cannot be: A witness who will need to give evidence A friend or close colleague of one of the parties Someone who may benefit in any way from the outcome of
the investigation Someone who previously disciplined one of the parties
IDENTIFY AN APPROPRIATE INVESTIGATOR (cont)
The investigator must: have the time to complete the investigation in
speedy manner have the skill and knowledge to deal with both:• The investigation process, and, • The specific issues in dispute (e.g. fraud,
discrimination, sexual harassment)
PARTICULAR TIPS…
Consider:• The degree of reputational risk (will this process
be challenged: where, and by whom ? External agencies, courts, tribunals?)
• Whether legal privilege may be helpful• The seniority of parties vs. investigator
WHO WILL INVESTIGATE: A CASE EXAMPLE
Keiko Adachi v Qantas Airways Limited [2014] FWC 518 (10 February 2014) An investigation into an alleged assault…but was it a tussle
or an assault for the medical certificate ? 12 witnesses versus 1 witness…! The investigator had a “high personal and professional
regard” for the witness The investigator was unable to believe that this
employee’s narrative was “anything but totally credible”.
DEAL PROPERLY WITH“SCOPE CREEP”
If new allegations are raised:• You need enough information to be sure
it is not relevant to this investigation.• If out of scope, close out conversation• Refer substantive matters back to the
person determining scope (if that is not you)
PARTICULAR TIPS…• New allegations MUST be put to the
respondent with adequate time to consider
• Respondent may think you are collecting info against them i.e. are biased – be clear about what and why you are asking questions
• Is it “similar fact” evidence? Be open about what evidence you are considering.
“SCOPE CREEP”: A CASE EXAMPLE
Boal v BHP Coal Pty Ltd [2014]; Faulkner v BHP Coal Pty Ltd [2014]
• Both employees responded to allegations contained in a Show Cause letter
• Were not given adequate opportunity to respond to further evidence that was later relied upon in dismissing them.
“SCOPE CREEP”: A CASE EXAMPLE (cont)
Re Mr Boal: evidence of mobile phone records from other days were considered.
Re Mr Faulkner: evidence of the employee using the mobile phone (c.f. having it), operating the vehicle at the time of using his phone, and, evidence of past inappropriate conduct) was considered.
In both cases…never put to the respondents for comment…
The evidence in question…“Zachary J...your (sic) lucky I’m here to get your
truck out of the bog you got it into.”
CONDUCT THE INVESTIGATION IN A FAIR AND RELIABLE WAY
Provide specific allegations to respondent for response, and advise about outcomes
Provide relevant evidence for respondent to comment on
Act impartially and promptly during the entire investigation
CONDUCT THE INVESTIGATION IN A FAIR AND RELIABLE WAY (cont)
Ensure confidentiality
Make findings on the evidence collected, on the balance of probabilities
PARTICULAR TIPS…
• Confirm confidentiality with all participants• Make sure what you ask, and say, at interview
is clear and relevant • Make sure you respond to “off the record”
issues• Provide consistency of process to all
participants
UNRELIABLE INVESTIGATIONS: A CASE EXAMPLE
Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services [2012] FWA 2713• The investigation report did not state who was
interviewed • It did not state what evidence supported the
findings, no understanding of how the conclusions were reached
THANK YOU
Any questions ?
Please do email [email protected] or [email protected] if you would like to receive
e-investigation insights, to accompany our book: “Effective Workplace Investigations”, or, to receive our newsletters.
CONTACT DETAILSGrevis Beard
Director, [email protected]
(03) 9981 6555 / 0433 590 360Please do contact me to discuss any queries you
may have from the presentation today