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|AAWI 2018 Annual Conference Report|
30 – 31 August 2018 | Kingscliff, New South Wales
Workplace Investigations: Maximum impact, minimum harm. Conducting effective investigations with care.
Sarah Rey, Co-Convenor of AAWI (with Karen Streckfuss), opened the 2018 conference entitled “Maximum Impact – Minimal Harm”. She reminded attendees involved in conducting workplace investigations that they have a lot of experience and insight, with which they can make a positive contribution to the discussions and decision making about how an investigation is scoped and conducted by employers. In some if not many cases, the employer has less experience than the investigator in such matters. As employers have a duty of care to support the parties in an investigation, and ensure a healthy workplace, it is important for them and their independently engaged investigators to understand how the process may be conducted in a way that ensures minimal harm to all concerned.
A LEGAL UPDATE: ARE WORKPLACE INVESTIGATORS DUTY FREE?
Presenters: Paula Hoctor – Q Workplace Solutions & Jane Seymour – Former Industrial Relations Commissioner (NSW)
Summary prepared by: Sally Scott – SAS Legal
The presenters considered the duty of care on employers to provide reasonable support to complainants and respondents during an investigation process. They explored obligations in respect of communications and confidentiality, particularly in light of criticism of the employer’s treatment of respondents in Queensland Court of Appeal decision of Hayes v State of Queensland  QCA 191.
Duty of Care
In relation to an employer discharging its duty of care to provide support, the presenters made reference to:
Ultimately the case fell down on a causation argument.
The communication should be regular, especially if there are delays or if the party is out of the workplace. There should be communication about the process, including timing. There should be communication about to ensure employee wellbeing, including what supports are available. The communications should be impartial and an opinion should not be given.
Expectations on respondents in relation to communication should be reasonable. For example, a direction not to communicate with people is to be reasonable in terms of a fixed time period, but should not result in isolation, if possible. In Hayes, due to confidentiality directives the respondents were isolated for 9 months.
The employer has an obligation to take timely action in response to workplace complaints - Robinson v State of Qld  QSC 165 – the damages awarded to the plaintiff were $1.5m.
Steps to try to preserve confidentiality:
There is always likely to be gossip and rumour. The more witnesses there are, the more people who know about the investigation and the greater the risk of gossip and rumour.
Employers are to give witnesses the minimal information possible and stress the obligation of confidentiality and the consequences of breaching confidentiality, including defamation risks and the possibility of disciplinary action.
In Hayes, the respondents were advised by supervising colleagues to ‘suck it up’, ‘people make complaints’ and ‘you have to deal with it’. This is not an ideal process.
Investigators Under Scrutiny: Investigations of Investigations - Graeme Colgan (keynote speaker)
INVESTIGATIONS OF WORKPLACE INVESTIGATIONS: INVESTIGATORS UNDER SCRUTINY
Presenter: Graeme Colgan - former Chief Judge of the Employment Court of New Zealand
Summary prepared by: Sue Mitra – PAX Workplace Lawyers
Graeme Colgan, former Chief Judge of the Employment Court of New Zealand, shared some valuable insights from the bench when it comes to scrutinising the work undertaken by workplace investigators. Graeme offered the following practical advice and reminders for investigators in relation to conducting investigations:
Graeme informed us of some learnings from significant New Zealand case law. In one case, an internal investigator was criticised for taking a narrow interpretation of the instructions given when the investigator did not allow a complainant to draw a diagram to explain the incident. The learning for investigators: allow the person to tell you what they want to - in their own way.
Graeme reflected that some of the benefits of a well conducted workplace investigation and ways investigators can have maximum impact include: providing the decision maker with high quality information; the opportunity to provide recommendations for change; and that a prompt investigation can minimise harm in the workplace by dealing with ongoing employment relationships and preservation of those relationships.
Public Sector Session - Neil Lawson, Angela Stoler, Sarah Rey and Richard Harding (left to right)
INVESTIGATIONS IN THE PUBLIC SECTOR: TREADING CAREFULLY - CONDUCTING EFFECTIVE INVESTIGATIONS IN A HIGHLY REGULATED SPACE
Presenters: Richard Harding - Special Counsel, Australian Government Solicitor & Neil Lawson - Ethics Consultant, Ethical Standards Unit, Department of Justice and Attorney General (QLD) & Angela Stoler - Senior Investigator, Department of Justice and Regulation (VIC)
Summary prepared by: Cynthia Logan – Logan Consulting Group
Richard Harding, Special Counsel, Australian Government Solicitor, spoke about the two forms of investigation under the Public Interest Disclosure (PID) Act 2013 (Cth). The first is the desktop or short form, which is likely conducted in house and will usually result in a Code of Conduct or statutory investigation. The other type of investigation is the long form investigation in which the scope of investigation can keep expanding. Richard spoke about challenges contained in the PID Act such as it does not mention procedural fairness and the complexities about the required content of a report.
Neil Lawson, Ethics Consultant, Ethical Standards Unit, Department of Justice and Attorney General (QLD) spoke about workplace investigations in the Queensland public sector. Neil considered aspects of the state regulatory environment and the differences compared to the private sector. Neil also spoke on some excellent available resources; ’A guide to engaging and providing workplace investigation services.’ (Www.psc.qld.gov.au) and ‘Corruption in Focus- guide to dealing with corrupt conduct in the Queensland public sector(2014) - Crime and Corruption Commission (CCC).
Angela Stoler, Senior Investigator, Department of Justice and Regulation (Vic) discussed a regular disciplinary breach the subject of government investigations: conflicts of interest. She outined the Victorian framework in which investigations are conducted and how conflicts frequently arise in recruitment and employment decisions. Angela ran through the steps in a conflict of interest investigation and gave tips such as the importance of strategic interviewing and knowing the right documents to request when pursuing the paper trail.
Mental Health Session - Graham Andrewartha, Verena Marshall and John Boardman (left to right)
MENTAL HEALTH AND SELF-CARE: THE PERSPECTIVE OF THE PARTIES
Presenters: Graham Andrewartha - McPhee Andrewartha & John Boardman - iHR Australia & Verena Marshall - Skill Matters
Summary prepared by: Katherine Wirth – Katherine Wirth Consulting
This was an interactive session preceded by a useful framework: The SCARF Model
There were three scripted role plays presenting the different perspectives, impacts and emotions of individuals involved in an investigation. An actor and AAWI member acted out three role plays and held the audience spell bound with the authenticity of the voices coming through the scenarios. At the conclusion of each role-play, the audience commented on what they had seen.
In role-play 1: the respondent spoke - themes included:
In Role-play 3: another Respondent spoke about:
The audience response included:
In role-play 2: the complainant’s themes included:
The audience response:
A PRACTICAL PANEL SESSION: Q AND A WITH MANAGERS OF INTERNAL AND EXTERNAL INVESTIGATION TEAMS - HOW TO MANAGE ISSUES AND LOOK AFTER WELLBEING
Presenters: Peta Nowacki – Working Together
Panel: Fiona Forrest – Rio Tinto & Melissa Bostock – Virgin Australia & Jenna Pervan – IAG
Summary prepared by: Alexandra Boudrie – Grange Advisory
This session provided a great opportunity for conference attendees to engage with three panel members, all from different industries and working in the employee relation’s space. Each of the panel members offered insight into how they, in their respective roles as managers to teams of investigators, manage various issues that arise, including the wellbeing of their own internal investigators, engaging external providers and a variety of other thought provoking topics.
Peta Nowacki, as the facilitator to the panel discussion, asked the panel for insight into a range of issues and how they manage those in their teams. A summary of the questions asked, and the panel’s respective responses, are set out below.
What are the common challenges that have an impact on an investigator’s wellbeing?
How these challenges can be managed effectively?
What do you think an investigator could do if they become concerned about safety?
What if the investigator becomes aware of a party being at risk of self-harm?
What advice would you give to an investigator when you know the interviewee is struggling emotionally?
How do you navigate timeframes and the pressure of getting the investigation done swiftly?
What is your approach to managing investigations that relate to contractors?
Do you ever ask your external/internal investigators to report findings to the complainant/respondent?
Fair Work Commission's Anti-bullying Jurisdiction - Commissioner Peter Hampton
WHAT EVERY INVESTIGATOR SHOULD KNOW ABOUT THE FAIR WORK COMMISSION’S ANTI-BULLYING JURISDICTION
Presenter: Commissioner Peter Hampton - Fair Work Commission
Summary prepared by: Tony Fell – The Zalt Group
Commissioner Hampton is the Panel Head of the Anti-Bullying Jurisdiction at the Commission. From the outset and as a repeated theme through his address, Commissioner Hampton spoke about the Commission’s desire and willingness to engage with the profession to provide the most effective administration on the jurisdiction. He explained that in effect his position is that of the Practise Lead in a law firm and that he personally oversees the effective running of the jurisdiction. There is a triage process for new applications that he personally oversees.
The Commissioner explained how the remedies available at law in this jurisdiction are primarily about stopping the conduct if there is a risk of further bullying. The remedies available are orders that are preventative, so there are no damages or the like available. He noted that out of the 600-700 applications received each year:
There have only ever been 12 matters where Final Orders have been made.
In effectively dealing with matters, the Commissioner noted the following general propositions:
Specifically regarding investigations, the Commissioner noted the following:
The Commission will recognise legal professional privilege, however based on the dominant purpose test. However the Commissioner noted that privilege is often lost in these matters as it can be readily waived by the employer.
The Commissioner also impressed upon investigators not to guarantee confidentiality.
ETHICS AND PRACTICE SESSION: AN ETHICAL FRAMEWORK FOR INVESTIGATORS – WHAT DOES IT MEAN TO BE AN ETHICAL WORKPLACE INVETIGATOR?
Presenters: Michael Robertson - Q Workplace Solutions & Rose Bryant-Smith - Worklogic & Raelene Speers - Department of Health (QLD)
Summary prepared by: Joanna Betteridge – Betteridge Consulting
A fantastic panel and audience discussion around the area of ethics in workplace investigations! This was a one-hour session to gain a CPD ethics point.
All the time we make judgements about whether others have behaved unethically.
What about the ethics that apply to our own work? The following points were raised and discussed?
Part of the ethics game is to have an appreciation of when to prioritise which values. There are competing values in some situations – it has to be clear which values are paramount – impartiality is paramount.
Most of us are working out ethical issues in accordance with our own personal values and ethics and maybe we should be talking about them with a colleague.
WORKSHOP: BEST PRACTICE IN WORKPLACE INVESTIGATIONS
Presenters: Elizabeth Devine - Devine Law at Work & Joanna Betteridge - Betteridge Legal Consulting & Daniel Smith - Ashdale Workplace Solutions
Summary prepared by: Peta Nowacki – Working Together
Developing professional standards for workplace investigations in Australia and New Zealand
AWI USA Guiding Principles discussed in groups:
What can we learn from other guidelines were discussed and what needs to be in Australian guidelines was the focus of group discussion.
The aim is to have Australian guidelines developed for the 2019 Australian conference.
Co-Convenor Karen Streckfuss (Victorian Bar) closed the conference and conveyed the general consensus that the second conference built on the first one, and was successful in terms of bringing people together. The next conference was already being discussed. The social activities were relaxed and meant that participants were able to meet each other and form connections across States, countries and jurisdictions. The advisory committee and administrative assistant Ellen McIntyre were duly thanked. Participants were encouraged to become involved in the various activities on offer. Karen commented that the next conference needed to offer as good weather as we enjoyed at Kingscliff - especially for cold Melbournians!