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AAWI 2017 Annual Conference Report
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Untitled Document

Inaugural AAWI Conference – Practical Justice 2017

Lisa Klug and Rose Bryant-Smith, Worklogic

The inaugural conference of the Australasian Association of Workplace Investigators, held in Melbourne on 20 October 2017, invited in-house investigators, consultants and lawyers to consider the concept of practical justice.

After a warm welcome by AAWI Co-Convener Karen Streckfuss, the Opening Keynote was given by former Federal Court Justice, the Hon Professor Peter Gray AM. Professor Gray’s speech entertained, engaged and provoked robust debate amongst the audience.

Pointing out that investigators are “employed to do the thing no-one else wants to do”, Professor Gray noted that investigators have no special powers conferred by law, nor are they protected from defamation suits via absolute privilege (as judges do). He questioned how external investigators can balance practical justice for the parties to the investigation, with the investigator’s self-interest in minimising the possibility of being sued for defamation for ‘republishing’ potentially untrue comments that other employees have said. Although a disgruntled employee would find it hard to prove they had suffered damage, sometimes slander is actionable without proof of special damage, especially if the allegation is one of criminal activity. Many of the audience took note – be cautious in future, and check whether your insurance covers defamation.

Despite this, Professor Gray encouraged us all to be courageous about our independence and impartiality. Do not “give the client what they want” and do not be the “agent” of the employer – make this clear to your instructors from the start of the investigation. Ask for everything, not just the files the employer offers you. Think critically about what has been left out of the brief. Interview widely, even if management do not want you to do so.

Keep in mind when interviewing that memory is inherently unreliable, and everything that we think we remember is a reconstruction. This means the fact-finder will hear different accounts of the same events. Our job is not to decide which is “the truth” and which is “the lie”. The idea that people can detect lying by observing body language has been debunked, so the best you may be able to say is “I prefer the evidence of Sarah”.

Finally, Professor Gray reiterated his urge that we never sacrifice our integrity for any client. Be cautious but determined. Be clear about the investigator role and limitations, and always assert your independence.

Fair Work Commissioner Tanya Cirkovic made some keen observations of the improper closeness between the employer and investigator, and investigators who are clearly not independent. In particular, Commissioner Cirkovic said she is concerned when she sees draft emails obtained on discovery, in which the investigator appears to be seeking approval of the employer of their findings. She generally frowns upon the practice of providing draft reports to employers, although she noted there are circumstances where it might be acceptable.

The Fair Work Commission most commonly sees investigations in the context of unfair dismissals and bullying. Procedural fairness must be our bible – in unfair dismissal cases, Commissioners will look at the criteria in the Act, which are all about procedural fairness. This affirms the crucial importance of an impartial and procedurally fair investigation. Take care with unhelpful and meddling input from the employer. Guard your independence at all costs.

Pre-existing relationships between the investigator and the parties or the employer (including past projects) – these things can become problematic and taint the entire investigation. As a minimum, early on, be very upfront about any prior history and give all parties an opportunity to comment.

Commissioner Cirkovic also reminded the audience that the Commission will start with the evidence, and not accept the investigation report as ‘the truth’. The investigator should ensure that the employer understands that the report and findings will not necessarily lead to the same findings by the Commission, because the Commission must collect and decide the weight of the evidence before it.

Commissioner Cirkovic also commented that anonymous complaints should be avoided, because they are almost always procedurally unfair to the respondent (noting that this is not always possible). She also affirmed the importance of providing respondents with “contradictory evidence” – they must have an opportunity to comment on fresh material collected during the investigation. She expressed concern about delays in investigations being completed, and said that in her view, if a participant does not want to be audio recorded, that should be respected.

After morning tea, a terrific panel of speakers talked of ‘Practicalities and Pitfalls’: Erin Rice of the Metropolitan Fire Brigade, and external investigators John Boardman and Bryan Cook.

Bryan Cook discussed whether or not interviews should be taped, giving strong arguments in the affirmative. He gave a controversial example of the covert recording by the investigator of a party to an interview who had refused to be recorded (a barrister in the room noted that investigators should check the law carefully as this might not be legal in some states), and how the recording protected his firm in a protracted legal dispute that occurred later.

Mr Cook’s other arguments for audio recording interviews included:

  • The known inaccuracy of note-taking (research by Professor Rebecca Mill in the UK);
  • It is not true that recording will inhibit conversations  – people tend to forget the recorder is there;
  • Digital recorders are much better than tapes, in quality and ease of use;
  • A recording is the best evidence of what that person is actually saying, whereas if you take notes you are filtering and interpreting what the participant said;
  • The recording captures tone, volume, pauses, sighs and stutters, as well as pitch and volume;
  • Recording allows for better listening and concentration by the investigator, and better conversational flow; and
  • It can protect the interests of both parties and establish the interviewer’s questioning style and substance, and fairness.

John Boardman at the AAWI Conference

John Boardman provided some sound advice, based on years of experience, about managing the challenges of investigating. He started by highlighting the importance of managing the expectations of the parties. Mostly they have no experience, and may have assumptions and expectations about the process. If participants believe that the process was fair and reasonable, they can more readily accept the outcome. Mr Boardman described the investigation as a learning process and a journey – nobody will completely like the outcome.

Mr Boardman affirmed the importance of independence, which includes separating management action (eg discipline) from the investigation process and its findings. The terms of reference are very important, both to set the scope of the investigation and also as a tool to manage expectations of the client. The terms of reference need to be more than a template, there needs to be a meeting of minds between the investigator and person commissioning the investigation.

Managing costs is always a challenge. No-one budgets for misconduct investigations. This means investigators need to be efficient and timely.

Erin Rice made astute observations from the client perspective. She commented on what she looks for in investigators, and (to add to the controversy!) how important draft reports are. Ms Rice noted the employer’s focus on repairing relationships after the investigation, that are almost invariably further damaged by the process. Investigations are a “last resort” for employers. If the report is a good one, it is likely that no one will be happy with the outcome, and everyone (HR, the parties, managers) are very tired of the issues.

Ms Rice talked through the alternatives and post-investigation options, including mediation, coaching, a climate review and workplace behaviour training. She said that she prefers not to have the report covered by legal professional privilege.

Emma Starkey at the AAWI conference

After lunch, Senior Associate Emma Starkey from Maurice Blackburn lawyers gave a passionate speech about the terrible impact that suspension, delays, confidentiality requirements and other challenges can have on individual employees. Ms Starkey urged us all to avoid practical injustice.  Ms Starkey said that she sees little good in investigation processes, mostly “the bad and the ugly” in which individuals are not respected. She noted the damage done by vague allegations, insufficient time for the respondent to prepare a response, respondents being ambushed in interviews, employees being directed to go home with no notice (causing reputational damage), and leaks to the media.

Ms Starkey said that in her experience, investigations are often a means to exit an employee from the organisation, not to repair workplace relationships. She is very strongly of the view that the full report should be given to the respondent, or a draft report given to the Parties if one is provided to the employer for comment.

Joanna Betteridge, investigator and lawyer, gave a summary of her favourite cases of flawed investigations. Her approach to investigations is to “do no further harm”. She says that the methodology section in her template report has grown over time, as the case law develops. Ms Betteridge’s favourite cases include:

  • Lohse v Arthur which is a key case about procedural fairness and ‘what not to do’;
  • Gera v Commonwealth Bank of Australia, which Ms Betteridge extensively quoted because it was an investigation that was done well! That case held that to prove bias in the investigation requires evidence as to the state of mind that is closed to alternative evidence;
  • Briginshaw – Ms Betteridge quotes this case in her reports – it is now generally accepted that it should apply in investigations and requires a higher standard of satisfaction when consequences of the findings are serious;
  • AFMEP & Kindred Industries Union v Visy Packaging [No.3] FCA 5252, which held that an investigation was adverse action against a Health and Safety Representative who had raised a safety issue.

Sarah Rey, Co-Convener of the AAWI Committee, described the recent Association of Workplace Investigators (USA) October conference. Some of her key takeaways about the differences between the American and Australian jurisdictions (noting that state differences in the USA are significant), included:

  • Procedural fairness in the USA doesn’t require providing the respondent with allegations before the interview (preferring the “gotcha” approach);
  • American investigators are all over the “no-bias” rule, and do expect to be in the witness box defending their findings;
  • When cross examined, investigators will be asked about their previous work for that employer, and how long they have worked together, to attack their impartiality;
  • A lot of their work seems to be about discrimination and sexual harassment including on campuses – by contrast the bullying framework there is very undeveloped;
  • Our system in Australia has much more flexibility around going to ADR options early, by comparison American employers are expecting the matter to go to court and the damages payouts to be significant if it does go to court.

AAWI conference attendees

Next, a group of investigators and psychologists – Peter Andrewartha, Laura Douglas, Alison Budden, Peta Nowacki, Kat Poulton, Chris Hicks and Karen Wise - performed a terrific role play of a disastrous investigation. After each scene, the audience debriefed on the issues and what went wrong. It all ended with very distressed people and the Human Resources manager insisting everyone have a group hug – very amusing! With much hilarity we also reflected on how investigations can go terribly wrong – and our duty to ensure that the process is sound.

The day was rich in content, full of new ideas and induced much debate. Everyone agreed that the conference was a credit to the organisation – a great success in its first year – and that the interests of all workplace investigators are served by ongoing engagement and professional development.

Conference attendee testimonials:

"Fantastic! Very relevant and a huge step in evolving workplace investigations as a profession." 

"A great conference, broad topics and perspectives."

"Highly relevant. High quality people. Looking forward to next year!"