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AAWI 2018 Annual Conference Report
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30 – 31 August 2018 | Kingscliff, New South Wales

Workplace Investigations: Maximum impact, minimum harm. Conducting effective investigations with care.

AAWI conference attendees

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.

DAY 1

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 [2016] QCA 191.

Duty of Care
This case involved an internal bullying investigation and the court held that there was:

  • No duty of care in the conduct of an investigation,
  • No duty of care in decision making about the complaints,
  • However there was a duty of care to provide reasonable support to the complainant during the investigation process.

In relation to an employer discharging its duty of care to provide support, the presenters made reference to:

  • Wellbeing – communication, appropriate work arrangements, timely action
  • Confidentiality – steps to preserve confidentiality and interaction with defamation

Ultimately the case fell down on a causation argument.

Communication
In Hayes, it was found that the employer had not communicated well and had communicated in a way that was prejudicial. The communication needs to be impartial.

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 [2017] QSC 165 – the damages awarded to the plaintiff were $1.5m.

Confidentiality
In Hayes, there were articles about the workplace dispute that led to the workplace investigations in the local press, the employer (a government department) had published on the intranet and the AWU took a very active role in the supporting the employees (not the respondents).

Steps to try to preserve confidentiality:

  • If possible, contain the number of witnesses in the investigation
  • Provide confidentiality admonitions
  • Disclose minimal information necessary at interviews
  • Management to limit who is dealing with complaint
  • Address breaches, gossip and rumour

In Hayes:

  • The court was critical of the direction given to respondents not to talk to other respondents. There were nine managers who were the subject of the complaints. It was also held to be unacceptable that the respondents  were not allowed to talk to their union.
  • Due to the picketing, the newspaper article, the small community – it should have been foreseeable to the employer there was a risk to the mental health of the respondents.

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.

Investigations Under Scrutiny, Keynote Presenter Graeme Colgan

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:

  • As an investigator, do not express any tentative views as to the outcome, as this could taint the perception of independence;
  • Plan and follow a fair process.  Record the process undertaken and if for any reason you deviate from the planned process, communicate this.
  • Adhere to the terms of reference or scope of the investigation.
  • Create and maintain good records of documents created and provided in the course of the investigation.
  • Ensure there is a good record of interview, ask open questions and ensure that participants to the investigation review and confirm their statement.

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 Section

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.

Graham Andrewartha, Verena Marshall and John Boardman

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

    • Status – differential between the complainant and respondent.
    • Certainty – a small amount of uncertainty generates error responses and causes people to be defensive.  Counter by explaining next steps.
    • Autonomy – Investigations reduce autonomy and can generate a threat response.  Counter by non-verbal matching and invite them to share their concerns.
    • Relatedness – Is the investigator a friend or foe? Closely linked to trust. 
    • Fairness – Increase transparency and communications. Clear ground rules and expectations. 

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:

  • Alcohol
  • Impact on wife, children
  • Questioning self: am I a bully?
  • Feelings of being ambushed
  • Matter was not handled well
  • Process is very formal and legal
  • No good will come of this
  • Accusations are stupid
  • Left waiting
  • Unsubstantiated – what now?

In Role-play 3: another Respondent spoke about:

  • ‘Sickies’ – could not face work
  • Pushed me too far and I snapped – punched him
  • Every man and his dog is involved – it’s a circus
  • Robot from HR 
  • Investigator was on my case to “please answer the question”
  • Investigator had already made up their mind
  • Union are the only ones that helped me
  • I’m not giving my employer any more than I have to
  • No one says anything at work to my face, they carry on like nothing has happened but it’s always there for me.

The audience response included:

  • Monitoring of sick leave spikes
  • How experienced is the Respondent’s Manager to deal with this?
  • Dealing with fragile people
  • Managing the aftermath
  • Take a holistic approach and look at the context

In role-play 2: the complainant’s themes included:

  • Are you listening?
  • Pages and pages of notes
  • It’s been going on for two years.
  • My therapist told me.
  • Impact on private life.
  • Anger
  • Embarrassment
  • Being targeted
  • Investigation must be independent
  • Don’t refer to my journal in your report

The audience response:

  • Tail wagging the dog
  • Mental health problems
  • Lack of self-awareness
  • Cognitive dissonance – what I say I’m doing vs. what I am doing
  • We talk ourselves into what we are saying
  • Blurred line between perception and reality
  • Huge need for attention
  • Lack of early intervention
  • Strong sense of entitlement which was not nipped in the bud

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? 

  • Unpredictability of when a workplace investigation will be required.
  • Time management in situations where response to an investigation is required promptly. Investigators may need to redistribute their workload to accommodate the investigation. 
  • If someone feels that they are not equipped to manage the investigation due to a lack of skill or experience. The Investigator may need more support, guidance, training and mentoring. 
  • Where staff are located in relation to where the investigator is located. 
  • Meeting the needs of the senior leaders in the business can present challenges, particularly if a complaint is emailed directly to a CEO or similar, which causes a chain of events with additional time pressure and stakeholder management.
  • Keeping track of documents and evidence as it comes in so you can keep on top of the information and not get overwhelmed.
  • Stress of serious consequences and making a finding in circumstances where there is not a lot of evidence. 
  • Some investigators don’t have the luxury of a team. Can be difficult to know when to debrief and how.

How these challenges can be managed effectively?

  • Focus on mental health. The organisation has a role to play in ensuring that people are supported and this is implemented from the top. 
  • Informally making sure you have a network of colleagues who you can speak to.  
  • Just because we (investigators) are exposed to this stuff all of the time, doesn’t mean other people are, and it can be confronting for people. People can be genuinely shocked by what is alleged or what is found to have occurred. Make sure we are asking leaders whether they are comfortable to speak about the content and subject matter or if they need support.

What do you think an investigator could do if they become concerned about safety?

  • If you have advanced notice of the concerns, a support person or note taker could accompany the investigator to the interview.
  • May need to suspend the interview if the investigator does not feel safe. 
  • Glass offices can be used and if necessary and possible, the meeting could be held at the organisation’s Head Office.

What if the investigator becomes aware of a party being at risk of self-harm?

  • Stop the investigation. The organisation should then make enquiries about this and determine whether the person is fit to participate in the interview/process and what support can be provided to them. 

What advice would you give to an investigator when you know the interviewee is struggling emotionally?

  • Communicate to the parties about the progress of the investigation. Regardless of whether there is something to report or not. Open lines of communication are vital.
  • Need to be independent but not uncaring about the person’s emotional state. 
  • An investigator should show empathy but not necessarily sympathy.
  • Offering breaks and the option for the participant to take a walk.
  • There may be alternative ways to get the evidence from the interviewee. For example, offer that they put it in writing first. 
  • Consider using breaks when things are off track. For the Investigator’s benefit and the interviewee’s. When reconvening, note what topic you would like to discuss. 

How do you navigate timeframes and the pressure of getting the investigation done swiftly?

  • Stakeholder management is key. Strike a balance between progressing the investigation; with ensuring a fair process is conducted. 
  • Don’t rush because this usually results in things being missed and, ultimately, a ‘sloppy outcome’. 
  • Being realistic, fair to people involved and making sure you get a good result is more important. Often it is the Leaders who drive the timeframes. Time is critical, but best not to rush.

What is your approach to managing investigations that relate to contractors? 

  • Depends on the particular incident alleged. If it is a major safety incident and we (the organisation) are satisfied the contractor should not be on site, it becomes the contractor employer’s issue to manage. 

Do you ever ask your external/internal investigators to report findings to the complainant/respondent?

  • Internal investigators do deliver findings to the parties. It is acknowledged that this is a difficult discussion to have.
  • Generally, organisations don’t ask external investigators to present findings to the parties. 
  • Some debate over whether this is the role of the investigator or not. 
  • Suggest that this be clearly set out in the external provider’s terms of engagement – will they or won’t they provide the findings to the parties. 
  • The view generally is that the investigator should not play this role in presenting the findings to the parties.

DAY 2

Commissioner Peter Hampton - Fair Work Commission

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:

  • 10% of matters are dismissed on jurisdictional/merit ground
  • 40% of matters are finalised by an agreement between the parties
  • 48% of matters are closed without a formal agreement

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:

  1. The earlier and more informally the complaint is dealt with, the more likely there will be an appropriate working relationship at the end of the process. There were some notable exceptions to this if:
    • there is aggravated bullying
    • there needs to be an effective escalation process
    • the ‘bully’ needs to be removed from the situation
  1. Matters are mostly resolved and dealt with within 50 days
  2. The applicant’s view of the employer’s internal complaint handling process is a significant factor in their decision to bring an application. If they are not happy about that then the investigation becomes the focus of the complaint

Specifically regarding investigations, the Commissioner noted the following:

  • Engaging an external investigator does not become bullying conduct
  • The Commission makes its own findings and does not rely upon the investigation. If orders are made in the matter the Commission will take into account the outcomes from another investigation (this is in the legislation – could be WorkCover claim etc).
  • The quality of the investigations that the Commission sees vary greatly
  • Good investigations are a great investment etc
  • Serious cases are better handled by an external investigator for both perception and reality of independence and quality
  • Genuine independence is often a concern in investigations
  • There is a tendency to mix investigations with grievance handling – however he acknowledged that this should happen from time to time
  • The outcome of the investigation should be clear:
    • Findings are…
    • Substantiated
    • Not substantiated
    • Unable to determine whether… – this is an open conclusion.

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?

  • Some workplaces do have ethical codes  - particularly in the public sector – do they apply to an external workplace investigator?
  • Ethical issues arise commonly in professional roles
  • Our decisions affect others interests and wellbeing
  • Values are a strong source of guidance
  • From an ethical perspective – think about the consequences of decision making
  • What are the values and morality of the workplace investigators role
  • Values are principles or attitudes to which we attribute worth
  • Fairness, absence of bias, confidentiality, detachment in decision making etc
  • For investigators – it is all about impartiality – that is the role morality of the investigator

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:

  • Decision to conduct an investigation
  • Choice of investigator
  • Scope of investigation
  • Investigation planning
  • Communication with Employer Representatives and Witnesses
  • Confidentiality and Privacy
  • Evidence Gathering and Retention
  • Witness Interviews
  • Documenting the Investigation
  • Investigation Findings
  • Reports

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!