The shortcomings of workplace investigations

Harriet Stacey CEO, WISE Workplace

‘A response to Josh Bornstein’s

call for reform’

• Internal investigations are:

– incompetent and biased

• External investigators are:

– biased, and unregulated

• Lawyers:

– hide behind legal professional privilege and manipulate findings to the benefit of the client

Josh Bornstein

Questions raised

• How do we ensure procedural fairness?• What can we do to maintaining

confidentiality?• When should you use legal professional

privilege?• What is reasonable? • How to select and assess excellence in

external investigators?

Lohse v Arthur (No 3) [2009] FCA 1118

Procedurally fair workplace investigation

Lohse v Arthur

• A flexible and practical obligation • adopt fair procedures • appropriate to and adopted to the circumstances

Three elements of procedural fairness

• A fair hearing

• Independent and unbiased decision makers

• A decision based on evidence

• You must notify a person of the allegations against then prior to the person being interviewed - True or False

• There is no need to interview the respondent if you have enough evidence to prove the allegations - True or False

• You can decide if the respondent is permitted to have a support person present during interview - True or False

• You can decide who the respondent’s support person is present during interview - True or False

• If there is a bias or perceived bias you can still conduct the investigation - True or False

Procedural Fairness A Fair hearing

Examples of bias

Police Association of NSW (on behalf of Ken Gilmour) v Commissioner of Police [2009] NSWIRComm 51

The decision maker admitted to predetermining outcome prior to investigation completion

Mr Zeb Dewson v Boom Logistics Ltd [2012] FWA 9027

Management failed to take disciplinary action regarding earlier allegations of assault

The manager “displayed manifest bias, he pre-determined his views before even hearing from the [crane operator]…”

Procedural Fairness

AMWU v Visy Packaging Pty Ltd [2013] FCA 525

Adverse action case

Court not satisfied that investigation independent and impartial

Procedural Fairness

Where did Visy go wrong?

• Employer appointed ‘independent investigator’• Employer framed questions to ask employee under

investigation• Management attended the employee’s interview with the

investigator• Employer’s solicitor in regular communication with

investigator• Solicitor sought ‘clarification’ of certain matters ‘in case

this leads you to updating or reviewing your report’• Employer intervened to revise report ‘to strengthen it’

Procedural Fairness

• You have a personal relationship with complainant or respondent – Yes or No

• You have previously investigated key parties – Yes or No

• You are subject of the complaint or involved as a witness – Yes or No

• You are a member of the same club or group – Yes or No

• If you have had previous issues or problems with any of the parties – Yes or No

• You hold particular views on the subject of the investigation e.g. child pornography, religious tolerance, working mothers – Yes or No

Bias or conflict of interest

Gossip

Documents

Statements

Prior history

Ryan v Department of Human Services [2013] FWC 4060

FWC • criticised employer’s failure to investigate mitigating

circumstances raised by E/ee

• Employer acted in a ‘seriously procedurally unfair manner’

• Awarded compensation (notwithstanding admissions of misconduct)

The evidence rule

• You only need to gather evidence that supports your case against the person– True or False

• You can consider evidence that is not relevant to the case such as past behaviour- True or False

• If the respondent declines to be interviewed, this can be held against them - True or False

• As the investigator it is appropriate that you make the final decision on penalty- True or False

Procedural Fairness Best Practice

Balancing act between confidentiality and procedural fairness

How much do you need to tell the respondent to give them a fair hearing?

Everything/almost everything/minimal/nothing?

Confidentiality

What goes in the report?

Who gets the report?

How do we protect privacy of individuals?

Can we protect witnesses?

Confidentiality

“For victims of workplace bullying…understanding how their complaint has been

dealt with and the reasoning underpinning the investigation’s conclusions is just as important to

them as it is to the employer”

Josh Bornstein 2014

What is the role of the investigation and it’s report?

An employee is caught on CCTV footage assaulting a customer. Investigated, employee is dismissed and lodges an appeal for unfair dismissal. The CCTV footage is viewed in evidence in the hearing and dismissal upheld.

TV station request footage under FOI – is it released?

Privacy

Legislative requirement to keep the identity of the complainant confidential.

Can we do it?

Documents created to enable solicitors to provide legal advice to clients are subject

to legal professional privilege

Can privilege help?

Ms SB [2014] FWC 2104 (12 May 2014)

“ I note that there is some tension between some of my findings and those

apparently reached by the external investigation on matters that were directly

relevant to this application”

Legal and Professional Privilege

To understand all the decisions made in a workplace investigation and disciplinary

process the decisions need to be ‘reasonable’

What does that mean?

Concept of reasonableness

An Objective assessment of the action in the context of the circumstances and knowledge of

those at the time

Including:• Circumstances that led to the MA• Circumstances whilst the MA is being taken• Consequences that flow from the action

It may be relevant to consider the state and psychological health of the worker

Reasonableness

How do you select excellence in external

investigators

GREAT!

TERRIBLE!

Guiding principles of good reports:

• Purpose

• Accuracy

• Sufficiency

• Clarity

Principles

What should you look for?

What will reduce the risks of a dud?

Selecting Investigators

Questions?