Workplace investigations [3rd edition.] 9781922347305, 1922347302

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Product Information Disclaimer No person should rely on the contents of this publication without first obtaining advice from a qualified professional person. This publication is sold on the terms and understanding that (1) the authors, consultants (including Worklogic Pty Ltd) and editors are not responsible for the results of any actions taken on the basis of information in this publication, nor for any error in or omission from this publication; and (2) the publisher, the authors and consultants are not engaged in rendering legal, accounting, professional or other advice or services. The publisher, and the authors, consultants and editors, expressly disclaim all and any liability and responsibility to any person, whether a purchaser or reader of this publication or not, in respect of anything, and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. Without limiting the generality of the above, no author, consultant or editor shall have any responsibility for any act or omission of any other author, consultant or editor. About Wolters Kluwer Wolters Kluwer is a leading provider of accurate, authoritative and timely information services for professionals across the globe. We create value by combining information, deep expertise, and technology to provide our customers with solutions that contribute to the quality and effectiveness of their services. Professionals turn to us when they need actionable information to better serve their clients. With the integrity and accuracy of over 45 years’ experience in Australia and New Zealand, and over 175 years internationally, Wolters Kluwer is lifting the standard in software, knowledge, tools and education. Wolters Kluwer — When you have to be right. Enquiries are welcome on 1300 300 224. Cataloguing-in-Publication Data available through the National Library of Australia First edition....................................2013 Second edition....................................2018 Third edition....................................2020 ISBN 978-1-922347-30-5 © 2020 CCH Australia Limited All rights reserved. No part of this work covered by copyright may be reproduced or copied in any form or by any means (graphic, electronic or mechanical, including photocopying, recording, recording taping, or information retrieval systems) without the written permission of the publisher. Foreword A great deal of people’s lives are spent at work. For many people, their work is one of the few constants in life in an otherwise unpredictable world. Work provides people with an opportunity to challenge themselves, to cultivate their skillset and to contribute to something larger than themselves. It is understandable, therefore, that the breakdown of a relationship in a workplace can have a significant toll on a person’s wellbeing. Sometimes things just go wrong. Sometimes a new manager might arrive, and the dynamics change. Performance is under scrutiny. But the perception is, not performance, but inappropriate behaviour or even bullying. Sometimes a long-term work relationship that has turned into a friendship sours and the workplace is affected. This book provides an incisive overview of how to facilitate a comprehensive workplace investigation when an allegation of wrongdoing is made. Most importantly, it provides the tools necessary to conduct an impartial, procedurally fair and rigorous investigation. To this extent, this publication is of great value to the public in ensuring that wrongdoing in the workplace is adequately investigated and appropriate remedial steps are taken. This publication will help ensure that workplaces remain safe, respectful and

productive. The very fact that this publication is now in its third edition demonstrates its ongoing relevance to human resources professionals, employees and employers, trade unions, academics, lawyers and the public at large. The pace of change in workplaces remains unabated. This edition of the publication is adapted to contemporary developments in industrial relations and employment law. With the inclusion of new material, including sexual misconduct and trauma-informed practice, readers will be better equipped to respond to contemporary developments. In the work of the Fair Work Commission, many matters rely upon the conduct of an impartial and thorough workplace investigation being facilitated. In particular, an investigation free from bias, and one that is done sensitively and carefully, can lead to an early resolution. For businesses, a workplace investigation well done can avoid protracted and unnecessary litigation. I would encourage all readers, even those not well-acquainted with employment or industrial relations law, to read this publication. J J Catanzariti AM Vice President, Fair Work Commission, July 2020 Praise for “Workplace Investigations” “Drawing on their immense experience, the Worklogic team has produced a must-have guide for best practice workplace investigations. This book provides comprehensive advice on each of the practical aspects of a workplace investigation whilst also skillfully addressing the considerable human elements involved.” Alison Baker, Partner, Hall and Wilcox “This book is essential for HR professionals, workplace investigators and employment lawyers as they navigate the challenging world of workplace investigations. It is a very practical guide, not only referencing the latest cases, but also stepping you through the investigation process and providing useful checklists. An indispensable purchase.” Meaghan Bare, Principal Lawyer, KCL Law “This is a great ‘how to’ handbook for tackling difficult workplace investigations. It demystifies the process and provides sound guidance to HR Managers in relation to the complex issues and the many challenges they’ll face.” Nicholas S. Barnett, Executive Chairman, InSync “If you don’t know where to start with your workplace investigation, then start by reading this ‘go to’ guide. Both comprehensive and practical, Workplace Investigations is an invaluable tool to assist with navigating this complex process.” Linda Baxter, Director, Continuing Professional Development, Leo Cussen Centre for Law “Workplace grievances need to be dealt with appropriately. Unfortunately, the process by which companies manage workplace grievances is too often devoid of a systematic approach that results in grievances not being properly addressed and at worst the complainant feeling like they are at fault. A lack of procedural fairness and natural justice that leads to poor outcomes that do not adequately resolve the grievance is a key failing of many investigations. This is why Workplace Investigations is such an important contribution for HR professionals and general management. It provides a clear and concise process for dealing with grievances at all stages of the process. Most importantly it incorporates key learnings for topics, highlights critical issues and has important tips throughout. This is a how to guide that all HR teams should have at their fingertips to assist in managing employee grievances logically, fairly and thoroughly.” David van den Berg, Manager, Industrial Relations, CPB Contractors “Filled with practical and sound advice, Workplace Investigations is one of the key guides I find myself returning to repeatedly. Highly recommended for anyone about to embark on their first, or fiftieth, workplace investigation.”

Christopher Best, Head of Workplace Relations, People Policy and Conduct Risk, Bupa “It is a pleasure to endorse this truly valuable resource. For any investigator embarking on an investigation, this book is a gem and trusted companion. I highly recommend it!” Nancy Bicchieri, General Corporate Legal Counsel, Legal Services, Catholic Education Melbourne “A clearly written, comprehensive, and practical guide demystifying the underpinning processes of a sound workplace investigation. This book should be a constant companion for anyone required to produce fair, robust and consistent results while navigating the often difficult terrain of sensitive workplace investigations.” Stella Birch, Manager, Central Complaints and Investigations, RMIT University “Worklogic’s outstanding book has long been the ‘go to’ resource for investigators, whether for pragmatic guidance on a specific issue or as a primer on conducting a thorough & robust process. This edition’s inclusion of recent cases & responding to modern workplace challenges assures practitioners they are covering all bases.” Fiona Blackmore, Associate Director, Specialist Advice, Monash College “This book provides a step by step guide to enable organisations to navigate the complexities of workplace investigations and have the confidence that a fair, timely and transparent process is taken, giving all those involved confidence in the robustness of the process and outcome. No matter how experienced an investigator you might be, there is something for everyone to learn here.” Bridgid Connors, Chief Human Resources Officer, Monash University “A practical guide with a ‘cover-all-bases’ best practice approach that should be recommended reading for anyone who is trying to navigate their way through the myriad of complexities that are involved in workplace investigations. Workplace Investigations is an invaluable resource that even the most skilled investigator will find useful.” Clare Darmanin, General Counsel and Compliance Officer, Nutrien Ag Solutions “This book has been an invaluable tool for me when conducting investigations since the very first edition and across different industry sectors. Very approachable with practical advice and ‘golden rules’ that can be applied with confidence in any situation. The case law provides relevance and currency giving the reader a solid platform when either conducting or advising on the conduct of an investigation. A definite must-have!” Natalie Fowler, Workplace Relations Practitioner “Highly recommended for workplace investigators both new and experienced.” Beth Gaze, Professor, Centre for Employment and Labour Relations Law, Law School, University of Melbourne “Unfavourable behaviours in the workplace can cost thousands in lost productivity and legal action, unless they are handled with skill and good judgment. This book is essential for risk, compliance and human resource managers. The authors’ depth of experience is shared generously, to demystify, de-stress and de-risk the process for everyone.” Christina Gillies, FAICD, Director, Multiple Sclerosis Australia, Child Link, International Women’s Forum (Vic) “The conduct of workplace investigations is an important but still developing practice in Australia. Done well, they can assist employers to make informed and appropriate decisions about workplace issues and complaints but undertaken poorly, they can sour relationships and themselves become the focus of complaint and litigation. This text Workplace Investigations 2nd Edition is a well-researched, sound and practical guide on this topic and it represents an excellent resource and contribution to this developing practice.” Commissioner Peter Hampton, Former Panel Head and National Practice Leader, Anti-bullying jurisdiction, Fair Work Commission “Essential reference for anyone involved in conducting, commissioning or assessing workplace

investigations. Given this is an expanding field that is likely to become more contentious, ‘don’t leave home without it’ is the message!” Ross Jackson, Partner, Maddocks Lawyers “As a Manager and HR Professional this book is an essential tool for me. It is full of practical advice and examples to assist me with my team and with coaching other managers on the complexities of workplace investigations and people management. Highly recommend you having this book as part of your toolkit.” Annabelle Kirwan, Manager People and Organisation Development, State Emergency Service (Victoria) “Not only does this book provide a useful framework for the conduct of investigations, but the authors have generously shared their extensive experience to provide tools and tips for the novice investigator. I can see this practical guide being a must have in the library of every employee relations department, it will certainly be compulsory reading for my team.” Michele Le Noury, Manager Organisational Development, Central Highlands Water “This text has many fine qualities, including that it is clearly written, easy to navigate and practically useful. But of greater significance is the authors’ evident commitment to a solid ethical base on which they build. That foundation can be expressed as a cardinal rule — that workplace investigations be designed and implemented to seek the truth and be fair to all.” Dr Simon Longstaff AO, Executive Director, The Ethics Centre “Packed with sound advice and eminently readable, ‘Workplace Investigations’ will guide the reader through one of their toughest tasks. Investigations are a challenge for anyone. This book will give readers confidence that their investigation is robust, reliable, and best practice. The improved format and updated, contemporary content of this third edition makes ‘Workplace Investigations’ even more usable and reassuringly useful.” Alison Lyon, Deputy CEO and General Counsel, Municipal Association of Victoria “Conducting investigations can be complex, challenging, intense and time-consuming. Achieving the right outcome is paramount for all. This book provides a very useful instruction on what, how and when to do things in order to ensure that right outcome is achieved. Referencing this book throughout investigations has proven invaluable to me. Thanks to the Worklogic team!” Virginia Neill, Head of Workplace Relations, Wellbeing and Community, People and Culture, Medibank “Packed with sound advice and eminently readable, Workplace Investigations is a must-have for in-house lawyers, risk managers, HR managers and others embarking on an in-house investigation. Its commercial approach and sound basis in current employment law will give readers confidence that their investigation is robust, reliable, and best practice. Highly recommended.” Suyin Ng, Former Director of Strategy and Legal Affairs, Lonely Planet “A cogent text on workplace investigations! This book references both case law and a realistic hypothetical case study to logically address the what if’s, why’s and the recommended how to’s required to manage an effective and procedurally fair workplace investigation.” Frances O’Connor, Assistant Director, Work Health and Safety Governance and Strategy, Services Australia “A fantastic resource for practitioners who conduct or manage workplace investigations. Detailed and practical, it is a comprehensive guide to this important area of practice.” Daniel Proietto, Partner & Practice Group Leader, Workplace Relations & Safety, Lander & Rogers “This is a valuable resource for human resources managers dealing with workplace complaints and disputes. Workplace Investigations is a practical ‘how to’ manual to understanding the risks, challenges and obligations of workplace investigations.” Amanda Smith, Manager People Experience, VicSuper “Thorough, current and practically usable, this is an essential text for all workplace relations practitioners. Five stars.”

Dr Graham F Smith, Consultant, Clayton Utz “Organisational justice is a key driver to achieving integrity and compliance in the workplace. That means an organisation needs to respond to allegations fairly and consistently and be seen to be doing so. Well conducted investigations are central to this. Workplace Investigations will be a very valuable aid to managers conducting investigations, instructing external agencies or making decisions based on an investigation.” Neville Tiffen, Specialist Consultant, Corporate governance, Integrity and Compliance “Workplace investigations are rarely straightforward, and can be a vexed issue for many Human Resource Managers. Workplace Investigations offers a comprehensive set of guidelines to help managers negotiate the complex interpersonal, legal and ethical questions typically associated with these inquiries. My congratulations to the authors — this book is a welcome addition to the practitioner literature and should be on every HR Manager’s bookshelf.” Associate Professor Tracy Wilcox, PhD., Academic Director Postgraduate Programs, UNSW Business School, UNSW Sydney “Every HR Manager’s nightmare is a workplace dispute or wrongdoing affecting an employee which, if mishandled, can quickly go pear-shaped and become a major time consuming and expensive court action. Workplace Investigations is just what the doctor ordered to treat these nightmares before they occur. The book is a simple and clear practitioner’s guide on how to handle and treat all major workplace investigations, both in respect of reasonable compliance with applicable laws but also procedural fairness and modern ethical leadership values and principles. Whether it’s an event of discrimination, fraud, bullying or something similar — the reader will easily find tips to manage the relevant challenge and suggestions to get the problem sorted and settled amicably. When the matter is headed for court action — there are also sensible suggestions as to how to collect evidence and make findings which will withstand judicial scrutiny, and examples of where courts have found investigations to be procedurally flawed. No HR Manager with critical line operating responsibilities should be without this book. It’s a must read for those wanting to succeed in our great profession.” Peter Wilson AM, President and Chair of CPA Australia, and immediate past Chair of Australian Human Resources Institute Wolters Kluwer Acknowledgments Wolters Kluwer wishes to thank the following who contributed to and supported this publication: Director, General Manger, Research & Learning, Wolters Kluwer Asia Pacific Lauren Ma Head of Legal Content, Wolters Kluwer Australia Carol Louw Books Coordinator, Wolters Kluwer Asia Pacific Alexandra Gonzalez About the Authors Jodie Fox, Jason Clark, Rose Bryant-Smith and Grevis Beard together lead Worklogic, an Australian consultancy that works with employers to prevent and minimise the impact of illegal and inappropriate conduct in the workplace and to build a positive culture (www.worklogic.com.au). Jodie Fox is passionate about helping organisations to manage workplace conflict in a productive way. She specialises in workplace investigations, workplace reviews and mediations to address and resolve complaints and to foster a positive workplace culture, taking into account strategic, risk and policy factors. She has extensive experience in employment law and industrial relations, as a lawyer in top-tier law firms and in-house advisor to some of Australia’s largest companies and the Federal government. Jodie teaches Workplace Investigations at Master’s level as a Senior Fellow at Melbourne Law School. Jason Clark has over 13 years’ experience as a misconduct investigator, addressing complex issues including fraud, bullying, harassment, sexual misconduct, workplace violence, and drug and alcohol misuse. He provides workplace investigations training to government departments and integrity teams in

Australia and Asia. Prior to joining Worklogic, Jason was Joint Investigation Office Commander for the Australian Defence Force Investigative Service and led a team of investigators managing and investigating complaints of a serious and sensitive nature in sometimes demanding environments. Rose Bryant-Smith is committed to ethical workplace behaviour and ethical leadership. One of the founding owners of Worklogic, Rose is also a professional company director, a Senior Fellow at Melbourne Law School and a presenter to the Melbourne Business School and Executive MBA programs. Starting out as a corporate lawyer with Allens Linklaters and Clayton Utz, Rose is a graduate of the Australian Institute of Company Directors. She was a Vincent Fairfax Fellow in Ethics and Leadership in 2008–2009, Human Rights Law Fellow at Mercy Global Action at the United Nations in New York in 2016 and Finalist in the Telstra Business Women’s Awards in 2019. Rose Bryant-Smith and Grevis Beard are also co-authors of Fix Your Team (Wiley, 2018; www.fix-yourteam.com). Grevis Beard’s international career has focused on practical and balanced ways to resolve workplace conflict. With grounded legal experience as both a solicitor and barrister, Grevis has over 10 years of significant peak body experience in Australia and the UK, regarding equal opportunity, complainthandling, investigations and policy analysis. A founding owner of Worklogic, Grevis is an in-demand speaker and trainer on workplace communication, culture and investigation best practice. He has presented at major national and international conferences including the Association of Corporate Counsel Australia, Australian Human Resources Institute, and the International Association of Workplace Bullying and Harassment. Author Acknowledgments Workplace Investigations is a team effort. The investigation process set out in this book is the work of the consultants and researchers at Worklogic who have contributed their wisdom, ideas and experiences over more than 13 years, including the contributors to the third edition: Zayne Breadmore, Vanessa Cullen, Marc Dib, Louisa Dickinson, Tom Henry, Tanya Hunter, Rosa Scott and Emine Yavuz. Our heartfelt thanks go to Lisa Klug, our co-author for the first and second editions of this book. Lisa’s diligent research, wise advice and excellent writing are evident throughout. Having moved on from Worklogic to serving public hospital employees as a workplace facilitator (also known as an organisational ombudsperson), Lisa continues in her commitment to supporting ethics in the workplace. We are also deeply grateful to all of Worklogic’s clients — corporations, government entities, non-profit organisations and law firms across Australia — for entrusting us with their most sensitive and complex investigations. We are privileged to work with you. Note and Disclaimer Although sometimes based on aspects of actual complaints and conflicts that we have investigated at Worklogic, no character, situation or organisation described in this book represents any real person, situation or organisation, except for the summaries of published legal cases or media reports. The contents of this book, including the checklists and the case study, are for your information only. The information in this book does not constitute, and should be not relied on as, legal advice. We recommend seeking advice from a qualified lawyer before acting on any matter with legal implications. Free Templates and Resources Readers can download a complimentary electronic version of the templates, checklists and sample correspondence included in this book, plus bonus resources to help you conduct an effective workplace investigation, here: www.worklogic.com.au/downloads. Readers can also keep up to date with the latest developments in workplace investigation research, tips and legal cases by subscribing here: www.worklogic.com.au/contact-us/connect-with-us. About Worklogic Worklogic works with employers to prevent and minimise the impact of illegal and inappropriate conduct in the workplace and to build a positive culture. We promote ethical workplace behaviour, resolve conflict and complaints fairly and respectfully, and

upskill and restore teams to work better together. Our services include: • Fact-finding investigations into allegations of misconduct • Critical incident reviews • Resolution of conflict through mediation and facilitated discussion • Conflict management coaching for individuals and teams • Reviews of workplace culture, leadership and values • An independent complaints-reporting service (www.integrityline.com.au) • Workshops and training programs for teams, managers and leaders • Human resources, strategic and risk management advice. Worklogic’s clients include national and international corporations, universities, state and federal government departments, statutory agencies, non-profit organisations and law firms. We service all states of Australia and our clients’ international operations. Worklogic’s team includes licensed investigators, accredited mediators, conflict management coaches, facilitators and trainers. Our consultants bring years of experience as workplace relations lawyers in toptier law firms, human resources executives, and investigators with ombudsmen and human rights commissions. Contact us at [email protected] and visit www.worklogic.com.au to learn more about our services or to book us for your next event. Melbourne

Sydney

Level 11, 459 Collins Street, Melbourne

Suite 401/110 Pacific Highway, North Sydney

Victoria 3000

New South Wales 2000

Tel: (03) 9981 6500

Tel: (02) 8413 0384

Introduction Introduction Editorial information Uncovering the truth, in any context, can be a demanding task. Investigating allegations of wrongdoing in the workplace is no different. As a workplace investigator, you must be organised, decisive, unbiased and consistently apply procedural fairness when making the myriad of judgments which must be made throughout a workplace investigation. You might face anxious, upset or defensive employees, a board demanding that you fix the situation now, and colleagues who have prematurely rushed to judgment. Furthermore, whether an in-house or an external investigator, you may be under considerable pressure not only to decide what happened, but also to consider whether there has been a breach of policy, and advise about the organisation’s broader response. At times like this, investigating to find the truth while keeping a clear head can be quite a challenge. This book will guide you through the process of working out what actually happened, without breaching the employees’ rights or creating any additional risks for the organisation. Establishing the facts by conducting a fair and reliable investigation will give you a sound basis to manage and respond to allegations of misconduct. The organisation can then decide how to properly address the issues, fairly discipline those who have engaged in any wrongdoing and withstand challenge by the employees affected. There are multiple understandings in workplaces of what is required in order to conduct a workplace investigation. This is not surprising. Many professionals have not had the need or the opportunity to learn how to conduct workplace investigations. Many workplaces do not have a comprehensive procedure which outlines how workplace investigations should be undertaken. Since this book was first published, there has been increased scrutiny of how employers respond to allegations of misconduct at work. The anti-bullying jurisdiction of the Fair Work Commission has opened up a prolific area of external intervention into bullying in the workplace. The #MeToo movement (discussed at page 81) went viral from 2018 as people who had experienced sexual harassment found courage and solidarity in their sheer numbers. The increased awareness of the prevalence of sexual harassment in the workplace has meant that these traditionally under-reported allegations are more likely to be made. The movement, and its reckoning with sexual harassment in the workplace, continues to reverberate across professions in Australia from the arts to politics and from the health sector to the highest levels of the legal profession. Investigations of sexual harassment and assault require a trauma-informed approach, outlined at page 171. The series of allegations against high profile or very senior employees and appointed or elected officials, perhaps encouraged by the #MeToo movement, has brought into focus the difficulties in conducting impartial investigations against very senior employees, considered at page 93. The rapid digital transformation undertaken by many businesses in response to social distancing requirements accompanying the Covid-19 pandemic in 2020 has caused workplace investigators to become more comfortable with using technology to conduct workplace investigative interviews (see page 234), adding to their digital literacy with smartphone data and other electronic evidence (page 293). With Royal Commissions more common, there has been increasing coverage of the protection of vulnerable people and reportable conduct schemes across Australia. A guiding principle of these is including the participation of children and young people in the decision-making process. The special skills involved in interviewing children are outlined at page 258.

All of these developments in society, legal cases and media interest have impacted on — and significantly increased — the expectations of workplace investigators’ skills, ethics and accountability for fair outcomes. Workplace investigations are now regularly examined by the courts and specialist tribunals in relation to unfair dismissals, adverse action claims, interpretation of enterprise agreements, actions for discrimination and harassment, allegations of breach of employment contract and other contexts. In their judgments, the adequacy and fairness of the investigation process is often scrutinised in considerable detail, and the investigator is sometimes named in person as part of that examination. If the process was flawed or procedurally unfair — regardless of the merits of the conclusions reached — courts and specialist tribunals have not hesitated to chastise the organisation, the in-house investigator or the lawyer, and to order reinstatement of the employee or award compensation. Why we wrote this book We wrote Workplace Investigations in order to support in-house investigators and consultants — as well as lawyers, risk and compliance managers and others who instruct or oversee investigations — to manage the risks, challenges and obligations which are inherent in making judgments about employees’ conduct. The investigation process set out in this book is deliberately rigorous and procedurally fair. It aims to: 1. Establish a benchmark standard for best practice workplace investigations. 2. Support professionals to conduct workplace investigations fairly and consistently. 3. Ensure that the employees involved are treated fairly, have a reasonable opportunity to respond and have their rights protected. 4. Ensure that the outcome is supported by the evidence. 5. Encourage complainants to raise their allegations early, with confidence that they will be fairly assessed. 6. Enable organisations to understand, assess and respond to problems in a timely manner. 7. Allow appropriate training, discipline and behaviour management to be implemented promptly. 8. Minimise damage to the organisation’s reputation and other business risks. 9. Empower the organisation to defend any future legal action. How to use this book Workplace Investigations sets out clearly and simply the process you need to follow to conduct a sound, procedurally fair and defensible workplace investigation. In these pages, you will learn how to: • judge when an investigation is required • plan and scope the investigation appropriately • collect and analyse evidence • make findings of fact in a procedurally fair way • assess any proven conduct against your policies and procedures, and • consider whether your organisation should take any further steps to improve working relationships or to manage risks. This will assist your organisation to make sound employment decisions. The process can be used whether the allegations you are investigating are behavioural and interpersonal (such as bullying or sexual harassment), are operational (such as use of computer

hardware or social media, company equipment and credit cards) or concern the ethics of business decisions (such as conflict of interest or breach of the organisation’s values). This book describes, in order, the steps you would ordinarily take in a workplace investigation when defensible findings of fact are required. It also describes the key principles — including procedural fairness, natural justice and the rules of evidence — which guide every investigation. Of course, a full, formal investigation will not always be necessary, as some allegations of wrongdoing are relatively minor. Over the course of your investigation, this book will guide you to make informed judgments about which steps are required, and the depth and extent of your enquiry, in the context of the seriousness of the allegations and the possible outcomes for the participants. Each chapter can be read alone as required, or you can read the book from front to back if you are about to start an investigation. In Section 1 (Chapters 1–5), we cover the A to Z of commencing investigations: what is an investigation, when to investigate and when not to investigate. Should you decide to investigate, we cover how to scope your investigation and the different types of investigation you can conduct, including bullying, sexual harassment and credit card fraud, and investigating senior executives and non-employees. This section also explains the “golden rules” which aim to ensure that every workplace investigation is procedurally fair and defensible. Section 2 (Chapters 6–7) is all about the three Rs of investigations; the roles, rights and responsibilities of all the key people involved in the investigation process. This includes the complainant, the respondent, the witnesses and the investigator too. We look at who is the appropriate person to conduct the investigation, keeping in mind who will make employment decisions after the investigation is complete. In Section 3 (Chapters 8–10), we focus on the crucial steps required to set up your workplace investigation for success. It provides useful tips for how to anticipate and avoid many potential pitfalls, including clear and consistent communications about the process to all participants. Section 3 also covers when to instruct an external investigator and how to get the best possible result when using external investigators. In Section 4 (Chapters 11–15), we turn to evidence collection inside and outside the interview room. This section covers the skills you need to collect relevant and reliable evidence from interviews. We consider the practical aspects of where to interview, how to record the evidence collected and how to manage interviews effectively, as well as how best to manage commonly occurring problems in interviews. We also discuss the collection of documentary evidence, site visits, and digital evidence from a wide variety of sources. In Section 5 (Chapters 16–19), we look at how to analyse and give weight to different types of evidence. We set out strategies for making decisions which you can be confident are sound, fair, based only on the evidence you have collected, free of bias and legally defensible. These chapters focus on the skills you need to weigh up different types of evidence, decide which account of events is most plausible and apply the appropriate burden of proof to decide if the allegations are proven or not. In our final section, Section 6 (Chapter 20–21), we offer some guidance about looking after yourself when you are conducting workplace investigations. While many investigations are straightforward and factually simple, some investigations can be emotionally demanding, time-consuming and draining on you and the organisation’s resources. We consider the pressures and demands of dealing with highconflict personalities, and of exercising judgment while under pressure from stakeholders inside and outside the organisation. We also explain how to ensure that all the “intelligence” you have collected about what is going on within your organisation — which is often more wide-reaching and systemic than the specific allegations might have initially suggested — is captured and used for enhanced risk management and systemic improvements. Workplace Investigations contains checklists, examples of case law and other practical tools which illustrate these rules. The text contains specific advice for investigators, shown as: Be aware of this risk

Best practice Something to ponder □ Checklist Key points, shown at the end of each Chapter. Also, a case study comprising of 12 episodes appears throughout this book, in which bullying and discrimination are alleged at the (fictional) company Yellow Duck Limited. You can work through each exercise in this case study to put the principles into practice. This book was written for an Australian audience, but the principles apply equally to all Commonwealth countries. The process set out in this book is applicable in any jurisdiction in which procedurally fair, defensible decisions are required about employee conduct. Workplace investigators from New Zealand, the United Kingdom, many Pacific Islands, Canada and other Commonwealth countries will therefore find useful guidance in this book. Terminology used in this book There are various ways to describe the events and participants in the investigation process. Your organisation and its policies may use different terminology to that which is used in this book. In Workplace Investigations, we use these terms: • Complainant — a person who has made allegations, whether orally or in writing, about misconduct in the workplace. There may be more than one complainant in an investigation. We acknowledge that people who have experienced illegal conduct, such as sexual harassment, may refer to themselves as a discloser, victim or survivor. • Respondent — the person identified by the complainant as having engaged in the alleged misconduct. There may be more than one respondent. • Instructor — the individual who determines the scope of the investigation, directs the investigator on procedural issues, informs participants in the investigation about it, and manages participants who may be reluctant or obstructive. • Parties — both the complainant(s) and the respondent(s). • Complaint — a statement (verbal or written) containing allegations of behaviour, which in some workplaces is described as a “grievance”. • Allegation — a claim or assertion that someone has done something wrong. • Witnesses — people who may have observed or have relevant knowledge about the alleged wrongdoing. • Participants — a collective term that we use to describe the complainant, the respondent and all the witnesses who participate in the investigation. • Substantiated or proven — these terms are used interchangeably in relation to findings of fact. • Conclusion, finding of fact or decision — these terms are used interchangeably in relation to the conclusions you draw in your investigation. You will also note that in the book we sometimes refer to specific legal terms or principles. Within your organisation, when describing your work, you can use the language that best works for you in the context of your own investigation. Given that many people are not familiar or comfortable with legal terms, we recommend that you use plain English.

Sharing our experience Worklogic is a national leader in conducting workplace investigations. When we started in 2007, clear, robust processes for conducting investigations into workplace wrongdoing were rare, and consultants working as workplace investigators almost unheard of. Over more than 13 years, we have fine-tuned our misconduct investigation process, read countless decisions of courts and tribunals about investigations and workplace relations, and engaged in lively debate with each other, workplace investigators in Australia and overseas, and other academics and legal experts about the process. This book forms the foundation of our teaching this subject to Master’s students in our subject Conducting Workplace Investigations at the Law School of the University of Melbourne. Our approach is also informed by our prior experience in workplace relations at law firms, multinational corporations, federal and state public services, human rights commissions, universities, law enforcement and ombudsmen’s offices. We offer our expertise because we understand how challenging, exhausting, interesting and rewarding investigations can be for everyone involved. Investigations require delicate exercises of judgment, sound ethics and emotional intelligence. They involve many potential traps and risks for the investigator, stakeholders, the participants and the organisation, and they can have complex and far-reaching repercussions. We hope that this book guides you, step by step, through the workplace investigation process, and also empowers you to place integrity and wisdom at the heart of your practice. We are proud to share with you our collective experience and insights. Jodie Fox, Jason Clark, Rose Bryant-Smith and Grevis Beard 2020

SECTION 1 A to Z of Workplace Investigations Editorial information “‘Begin at the beginning,’ the King said, very gravely, ‘and goon till you come to the end: then stop.’”Lewis Carroll, Alice in Wonderland

Chapter 1: Deciding to Investigate What is a workplace investigation?

¶1.1

A workplace investigation need not be perfect

¶1.2

What rules govern the workplace investigation process?

¶1.3

Is a formal investigation appropriate? Triage the complaint and consider the alternatives

¶1.4

When an investigation is not appropriate

¶1.5

How formal should the investigation be? Judge the risks

¶1.6

¶1.1 What is a workplace investigation? Definition: Workplace investigation A workplace investigation is an enquiry into an allegation of behavioural misconduct usually raised by an employee (“the complainant”) against another employee (“the respondent”). Allegations of employee misconduct including discrimination, harassment, bullying and fraud usually require investigation by the organisation in order to ensure behavioural standards are maintained in the workplace, to meet legal obligations and to manage risk.

Workplace investigations can be about minor or serious matters. Where the allegations are serious, with potentially significant consequences for employees including termination of employment, the stakes are high (not only for the respondent) and your investigation process may end up being reviewed by a court. A truly responsible employer will only make a decision to discipline an employee on very solid ground and in circumstances in which fairness has been applied to all involved. An investigation therefore requires: • high standards of procedural and substantive fairness • intellectual rigour, and • sensitivity. Example An employee complained to Human Resources that his manager had bullied him. He said that the manager revoked his previously approved leave with only three days’ notice, and told him he had not met sales targets and needed to improve quickly or start looking for another job. The manager allegedly also told the employee, in front of other staff, that he was not pulling his weight on several occasions because he had failed to meet sales targets. When the employee complained to the manager, the manager allegedly laughed at him and said, “Until I see some improvement in your performance I am going to be on your back. If you don’t like it, you know where the door is.” Since that time, the employee alleges that the manager had started to call him “the bludger” in team meetings. When the manager did this, he seemed to be joking, but the employee felt upset, stressed and embarrassed about it. The organisation’s Human Resources manager conducted an investigation to determine whether the allegations were proven or not proven. Her investigation found that some of the allegations were proven. While some conduct was found to be reasonable management action (a defence to bullying), some of the proven conduct that the manager had engaged in amounted to a breach of the organisation’s code of conduct and the bullying policy. The HR manager determined that the manager’s conduct also created a risk to the health and safety of the employee. The organisation informed the parties of the findings of the investigation. As this was the first time the manager had been found to have breached a policy or code of conduct, the organisation decided that the appropriate outcome was to provide the manager with remedial training in appropriate workplace communication, and how to conduct performance reviews and manage poor performance. The manager’s supervisor was tasked with monitoring the situation and ensuring improvements in communication occurred. The organisation then supported both parties to participate in a facilitated discussion to explore and agree on how they might work together effectively and safely.

When is a workplace investigation necessary and what are its objectives?

The decision to investigate is usually made when an organisation needs to determine whether the employee has breached an organisational standard, policy or procedure, so that the organisation can take appropriate steps in response. Establishing the facts is a prerequisite to this assessment. Therefore, a workplace investigation will usually be necessary when an organisation has one or more of the following goals: • to comply with its own policies that mandate investigation in certain circumstances • to ascertain whether the alleged wrongdoing did, in fact, take place • to determine if the alleged wrongdoing is in breach of policy • to have confidence in its assessment of what occurred in a particular situation, rather than rely on one person’s version of events • to have a factual basis upon which to make sound and defensible decisions about what should happen next (such as managing a risk, disciplining an employee or making the workplace safe), and • to create a written report of the organisation’s efforts in order to understand and address the problem, which can be relied upon in any future legal proceedings. Procedural flaws in the investigation can make the findings and subsequent decisions indefensible, and also cause damage to individuals and the organisation more widely. This means that the goals of the investigation process must also be to: • address the matter as quickly and efficiently as is possible in the circumstances • maintain procedural fairness in the fair and reasonable treatment of the complainant, the witnesses and the respondent • collate all relevant information relating to the allegation/s and, where necessary, taking steps to preserve documents, materials and equipment • consider all of the evidence collected and draw conclusions independently and impartially on the balance of probabilities • create a thorough and accurate written report that sets out the findings of the investigation, upon which the organisation can rely to make a decision about the appropriate consequences for the employees involved • allow the organisation to identify and implement appropriate training, discipline and behaviour management promptly, and • throughout the process, comply with the law and the organisation’s policies and procedures, and not compromise the organisation’s position in its decision-making or any future legal or industrial proceedings. What can initiate a workplace investigation? The trigger for a workplace investigation is usually a verbal or a written complaint in which a staff member (“the complainant”) complains about another staff member’s (“the respondent”) conduct towards them. This could include an informal concern that is raised by an employee without the intention to “complain”, where the conduct that the employee describes poses a risk for the employer. Depending on your organisation’s policies, allegations might be made by or against other stakeholders, such as volunteers, members, contractors, company directors, customers, students or other end-users of your goods or services. In addition to a verbal or written complaint, there are a number of other possible triggers for a workplace investigation. Investigations may begin with:

• information obtained from an exit interview with a staff member, an anonymous telephone call or letter • concerns raised by a bystander or customer who is upset at something they have witnessed • a senior manager who has received information from or about his or her direct reports • a formal grievance, for example under an enterprise agreement, in which a group of employees or a union makes allegations • a complaint to an anonymous reporting service or helpline, or • results from an employee survey expressing concerns from groups of staff. Where the complainant is not identifiable (for example, when the complaint is anonymous), the organisation itself may step into the shoes of complainant, and conduct an “organisation-led investigation” in which the organisation is the primary driver of the investigation. Apart from the fact that there is no individual in the role of complainant, the process of investigating is largely the same. Fact-finding investigations The main goal of the investigation process is establishing the facts of what actually happened. The allegations, in whatever form they arise, must allege specific actions which are capable of being investigated. It is not possible to make findings of fact unless the allegations allege specific facts. An investigation cannot be properly undertaken into: • general rumours • exaggerated or generalised allegations such as “she always yells at me”, or “he constantly swore”, or • wildly broad accusations such as “there is a culture of racial vilification at this organisation which has been tolerated by the powers that be for many years”. See Chapter 2 for a more detailed discussion of what allegations can be investigated in a workplace investigation. Requirement to investigate when there is no individual complainant An organisation will probably not be minded (or obliged) to investigate if the alleged conduct is trivial, obviously impossible (“the aliens have landed”), not relevant to the organisation (for example, your organisation receiving a complaint about an environmental accident at another organisation) or would not amount to a breach of any policy even if proven. Once an organisation is on notice of possible serious misconduct by an employee — irrespective of the source (anonymous, ex-employee, third party or otherwise) and whether the allegations were informally, anonymously or “confidentially” made — the organisation should investigate. Many organisations make the error of failing to investigate serious allegations of misconduct because there is no easily identifiable complainant. This might be, for example, when allegations have come to the organisation’s attention via a third party who has not identified their source, from an anonymous tip-off or via a staff member who then leaves the organisation and does not wish to pursue the matter. A failure to investigate because the complainant is reluctant to formalise their allegations will not meet an organisation’s obligation to act on misconduct, nor will it manage the possible risks caused by the wrongdoing, if it is occurring. If a workplace health and safety inspector came to your factory and pointed out a machine without a safety guard, you wouldn’t say, “There is no need to manage that risk because no one made a formal complaint about it.” Similarly, if someone leaving your organisation reported the missing guard rail, you would not ignore this information because that specific complainant was no longer at risk. The same proactive approach should apply to the organisation’s management of bullying, sexual harassment and other health and safety risks,

procurement, theft and compromised business practices, as well as ethical and cultural concerns like discrimination. It is both reasonable and appropriate for the organisation to seek facts about what is going on in its own workplace, as part of its various legal responsibilities and control over the “doing of work”, even in the absence of a formal complaint. You don’t need a complainant to start an investigation. The requirement to investigate arises because your organisation is on notice of the alleged misconduct. Failing to investigate simply because there is not an identified complainant will not meet your organisation’s obligations to investigate and act on any misconduct. Ultimately, every workplace investigation is organisation-driven. Vexatious or malicious allegations Definition: Vexatious or malicious allegations Vexatious or malicious allegations are made in bad faith, have been knowingly fabricated, or are deliberately made to harm the respondent.

Employees and others should use your organisation’s complaints, grievance and investigation procedure only for genuine allegations, and not for ulterior motives. Most complainants believe their allegations, so a complaint is not vexatious simply because it is not proven. A vexatious complaint has been made maliciously, and/or by a complainant who knows that what they are alleging is untrue. Many employers have policy provisions for taking action against staff who make “vexatious” complaints. Usually, there is some vagueness about what constitutes a vexatious complaint. Typically the employer has in mind complaints which are deliberately fabricated or where information has been distorted or doctored. They may also include the raising of matters which have already been dealt with and considered by the employer to be finalised. While vexatious allegations are unusual, your organisation’s policies and communications with employees should state that vexatious or malicious allegations will not be tolerated. It is useful to include a statement in the relevant policy that knowingly false accusations made in bad faith will not be tolerated, and may result in disciplinary action. It is also prudent to provide examples of vexatious allegations in your policies. It is critically important that great care and diligence is taken when evaluating whether an allegation is vexatious or not. You must ensure you have a sound basis for reaching that conclusion. Your personal belief that the respondent would not have engaged in the alleged conduct, or conversely that the complainant is a troublemaker or “serial complainer”, will not be enough. In fact, you will expose yourself to criticism if you prejudge the merits of the allegations before conducting or concluding the investigation. Even those allegations which are not found proven may still have been made in good faith. When the organisation suspects that a complaint is vexatious, the employer is not entitled to take disciplinary action against the complainant on that basis alone. Before you can draw the conclusion that the complaint was vexatious, in most cases, you will need to conduct a separate investigation of whether the allegations were knowingly false and made with a vexatious or malicious intent. Given most countries have legislation that protects people who raise complaints from being victimised or otherwise adversely treated (including “adverse action” under Australian workplace laws), employers need to proceed very carefully in determining whether a complaint is indeed vexatious. Specifically, they need to determine whether a complaint was genuinely raised by the complainant even if none of the allegations were found proven by the investigation. Given the likely penalties for the employer if they are found to have victimised someone for raising a genuine complaint, the allegation that the complaint was made vexatiously should always be put to the complainant (who will then be a “respondent” to that allegation), and a complete investigation of that allegation conducted, before any decision with regard to disciplinary action is taken.

¶1.2 A workplace investigation need not be perfect Thankfully, even though many decisions of courts and tribunals can seem very harsh on workplace investigations, they do recognise that an investigation doesn’t have to be perfect. Case example In Rogers v Millennium Inorganic Chemicals Limited & Anor [2009] FMCA 1, the Federal Magistrates Court held that there was, in these circumstances, no need to conduct a “perfect investigation”. Mr Rogers, a factory worker, was asked to attend a meeting where he was accused of causing a delay in production by “walking away from the packing heads” during a shift at the plant. Mr Rogers was given the opportunity to explain what had occurred, and after doing so, his managers informed him that they were considering dismissing him, subject to the outcome of further investigations. On the following day, the company’s employee relations manager informed him that interviews with other employees did not support Mr Roger’s account of what had occurred and that he was to be dismissed with one month’s pay in lieu of notice. Mr Rogers claimed damages from the company for breaching his employment contract and Australian Workplace Agreement, as well as compensation for unlawful termination. He alleged that the company had breached an implied duty of mutual trust and confidence in the employment contract by considering dismissing him before conducting a full investigation into the production delay, and by refusing to tell him the names of the witnesses that it had interviewed. The Federal Magistrates Court rejected this element of the employee’s claim. It found that the identity of the witnesses and the nature of their claims were immaterial to the account of events as maintained by Mr Rogers. That was because Mr Roger’s version of events was that he was not even present at the “packing heads” on the day in question under investigation. It was therefore irrelevant as to whether Mr Rogers was not informed as to who had given evidence that he was in fact present, given his blanket denial of being present. Accordingly, the Federal Magistrates Court stated that “there is no obligation upon an employer in an investigation of this kind to conduct a perfect investigation” and that the investigation undertaken was not problematic.

In our view, when dealing with allegations of inappropriate behaviour the employer should err on the side of procedural fairness wherever possible, by identifying the name of complainant and the witnesses who have provided contradictory evidence. Any investigation needs to be thoughtful and reflect the nature of the allegation being investigated, and be flexible enough to respond to the evidence collected. To encourage you further that investigations can be done well — and stand up to close scrutiny — here is a case which found just that. Case example In Gera v Cth Bank of Australia Ltd [2010] FMCA 205, the Federal Magistrate’s Court rejected a claim by Commonwealth Bank of Australia (CBA) sales manager Duane Gera, that CBA had breached his Australian Workplace Agreement (AWA) by terminating his contract, following an internal investigation that found he had engaged in sexual harassment. Mr Gera claimed that the investigation had not been procedurally fair, was insufficiently rigorous and the investigator had been biased against him. He argued that CBA had therefore breached the AWA’s termination conditions and the “implied term of good faith and trust and confidence” of his unwritten contract with the bank. The investigation, undertaken by a CBA HR officer, had found that on 4 December 2006, after a late lunch, Mr Gera drugged and sexually assaulted a probationary employee in his hotel room, after luring her there to take part in a teleconference. He left her unconscious in the hotel room. On the basis of the investigation, the bank terminated Mr Gera’s employment for serious misconduct. Federal Magistrate Toni Lucev rejected Mr Gera’s claims, finding that CBA’s investigation had been procedurally fair and undertaken thoroughly. In particular, the investigator was found to be both competent and very experienced in such investigations. FM Lucev also rejected Mr Gera’s claims that the investigator had been biased against him, finding that the investigator had carried out his tasks in a “neutral, measured manner” and in fact refused to accept unsubstantiated evidence prejudicial to Mr Gera, contained in a medical report. The steps taken by the investigator all added up to a procedurally fair investigation. That is: • he interviewed relevant persons involved, sometimes more than once • he was provided with written statements and documents which he subsequently filed and analysed • he gave Mr Gera numerous opportunities to respond to the Bank’s allegations (including several interviews) and considered Mr Gera’s responses • he found adequate evidence (given the seriousness of the potential consequences) to support a finding that Gera had sexually/indecently assaulted the complainant, and • the investigation complied with the procedural fairness requirements in the Bank’s Fair Workplace Policy. In short, before making findings, he took into account all relevant materials, and did not allow irrelevant matters to influence his considerations.

¶1.3 What rules govern the workplace investigation process? All workplace investigations should be conducted according to relevant organisational policies and procedures, which should be consistent with the law. Of course, all workplace matters have the potential to attract the application of the various state and federal workplace relations laws, including workplace health and safety, industrial, discrimination, privacy and other laws. Special attention needs to be paid to those complaints where special laws and procedural provisions apply. For example, if “whistleblower” or “protected disclosure” legislation applies to your organisation, that legislation usually sets out specific requirements which will dictate how the investigation must be carried out. Investigators must therefore be familiar with how these laws and policies affect investigations, so that they can ensure that the investigation process is compliant. The rules of procedural fairness should also govern workplace investigation, whether or not your organisation’s policies refer to fairness. These rules are examined in more detail in Chapter 5. Although there is case law establishing that where an employee’s employment is terminated in accordance with the terms of the contract, there is no obligation to procedural fairness,1 the objectives of workplace investigations, identified above, cannot be achieved if the process is procedurally unfair. For example, if you do not gather the appropriate evidence, preserve and properly test that evidence and protect the rights of the participants, the findings and outcome will not be defensible, and the flawed process will impact poorly on the employees involved, with flow-on effects such as loss of confidence in the organisation’s complaints and investigation processes. Relying on a procedurally flawed investigation will also expose your organisation to many legal risks. These can include the reinstatement of employment by a court or tribunal, penalties under the law, liability for damage to the employee’s health and safety, enforceable directions given by workplace health and safety officers or industrial relations commissions, or compensation or damages being awarded to the employee for breach of contract. Alongside these legal and financial risks are important ethical duties of the employer. The rules of procedural fairness are fundamentally about protecting the rights and wellbeing of the employees. These rules are not mere technicalities: undue delays can cause terrible anxiety in the parties; failing to give the respondent a reasonable opportunity to respond to the allegations means they will not properly be heard or empowered to defend themselves; and failure to provide a support person deprives the parties of emotional support in a stressful situation. Therefore, once you have decided to investigate, be rigorous about running a procedurally fair process, irrespective of minimum standards in employment contracts or other industrial instruments. Organisational policies A variety of sources of “internal” workplace rules regulate the conduct of an investigation. These include: • the values of the organisation — organisational values commonly include respect, integrity, fairness and equity • employment contracts • the organisation’s code of conduct, and organisational policies stating standards of conduct, such as fraud, bullying, discrimination and workplace health and safety, among others • processes and procedures which direct employees to carry out tasks and make decisions in certain ways, such as conflict of interest and procurement procedures • policies and procedures which set out the processes the organisation will apply when concerns are raised, such as those addressing grievances, complaints-handing, dispute resolution, union representation and employee supports, and • provisions of the union or collective agreements, awards and other industrial relations instruments

which are about dispute resolution, grievances, complaints, misconduct, discipline and union representation. Investigation procedures All organisations should have in place processes and procedures to give guidance on appropriate conduct. It is also important that every organisation has processes in place which explain how the organisation will respond to allegations of a breach, including those cases which require investigation. This will position the investigator and the decision-maker in the organisation to make sound decisions, and to resolve the matter, in a way that is fair, efficient and defensible. It will give potential complainants clear information as they consider how to raise concerns, and inform respondents as to how they can respond to concerns that have been raised about them. The organisation will be well-positioned to do this with a well-planned policy and procedure for complainthandling which includes: • guidelines to support decision-making about whether to investigate or not, and the available alternative approaches (such as coaching, mediation and training) • a clear statement that the decision to investigate is the employer’s decision to make, rather than the complainant’s • standard complaint, investigation and disciplinary processes, applicable to everybody and transparent to everybody • clearly allocated roles and responsibilities in the investigation and possible discipline process • a statement of the confidentiality that is required from all participants • opportunity for the complainant and the respondent to be heard and to consider contradictory evidence being considered by the investigator • a commitment to the efficient conduct of the investigation (it is not usually a good idea to promise a specific time frame, as the complexity of the investigation and the availability of the witnesses can result in reasonable delays), and • a range of options for discipline and resolving disputes including training, coaching, review of role or accountabilities and sanctions. A consistent and fair investigation process, set out in a policy, will provide confidence that the complaint is being handled fairly, establish trust in that process and foster a greater acceptance of the outcome. The investigation process should be described in a single procedure or policy to avoid confusion and inconsistent approaches within the organisation. We do not recommend having a different grievance procedure for alleged breaches of the bullying policy, procurement policy, sexual harassment policy, and so on. The core principles of sound investigation process and good decision-making about the consequences of breach of policy are the same, no matter what type of misconduct is alleged. The process should be able to be described in a way that applies to all alleged breaches, with any specific exceptions being noted (such as for matters covered by whistleblower and protected disclosure legislation, or requiring safety regulators to be alerted). The one investigation process can then be used for all the types of complaints that may arise in the organisation. Tip Avoid including a clause in your policy that requires the complainant to nominate a course of action before any action is taken. Employers should retain the right to formally investigate allegations that may pose a risk to health and safety, or to decide to use alternative dispute resolution options if appropriate.

Crime, corruption and outside regulators

If the allegations include alleged criminal conduct, there may be an obligation on the organisation to report the matter to police under mandatory reporting legislation. For matters which include corrupt conduct, the employer may be obliged to alert the state or federal anti-corruption commissions, or the relevant ombudsman (see below). There are similar obligations to notify the state workplace health and safety regulator or Safe Work Australia, WorkCover, bodies tasked with the protection of children or other industry-specific regulatory bodies, before taking any further steps. Internal investigators should acquaint themselves with these additional obligations, which vary from jurisdiction to jurisdiction, and depend on the nature of the work and of the organisation. If the allegations are very serious (for example, involving assault or fraud), seek legal advice as soon as possible. Insurers The organisation may also have an obligation to report certain allegations to their insurer, as a condition of their insurance policies. In some cases, the insurer will “take over” the matter and conduct their own investigation, as the organisation’s rights to handle the matter are “subrogated” to the insurer. If you are unsure, check with the insurer before commencing, lest you lose the protection of the insurance policy. Whistleblower and “protected disclosure” laws Whistleblower laws exist for large corporate entities (including universities) and protected disclosure laws — varying between states — apply to government departments, government entities, public bodies and other organisations covered by the relevant legislation. The Corporations Act 2001 (Cth), strengthened in 2019 by the Enhancing Whistleblower Protections Act 2019 (Cth), also recognises and protects whistleblowers from detrimental action in reprisal for making a complaint. You should understand in advance whether and how these laws apply to your organisation’s handling of complaints. When faced with corrupt or unethical practices in the workplace, many employees do not speak up because they are afraid that they will suffer adverse consequences if they lodge a complaint. This fear is often not misplaced, sadly, given the common, poor outcomes for whistleblowers; however, Australia now has world-leading protections in place.2 When a complaint which qualifies for whistleblower or protected disclosure protections is made and an investigation instigated, the investigator has a key responsibility to manage the process in such a way that the whistleblower’s identity is protected and the requirements of any applicable whistleblower/protected disclosure protection laws are met. If a complainant makes an allegation which relates to “improper” or corrupt conduct in a business or public body, it is possible that whistleblower or protected disclosure legislation applies. If you are certain that the allegations are not covered by the applicable whistleblower legislation, they can be handled as a normal investigation. It is important to note that whistleblowers do not have to identify themselves. Complaints can be made on an anonymous basis. A business or public body has to treat anonymous whistleblower complaints with the same care and diligence as other whistleblower complaints. Key features of a “whistleblower” investigation If you determine that the allegations are covered by whistleblower legislation, special rules now apply to: • who is chosen to conduct the investigation • how you handle the allegations • how you conduct the investigation • how you handle the information you receive • how you refer to the person who made the disclosure, and • the steps the organisation takes to protect the whistleblower from reprisals. Whistleblower laws impose very strict and serious additional obligations on investigators that you must be

aware of. Research and understand the whistleblower protection rules before doing anything else. Be particularly careful not to mention the name of the complainant to anyone without determining first whether the whistleblower rules apply. Cth

Corporations Act 2001* Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 Public Interest Disclosure Act 2013 (APS related)

ACT

Public Interest Disclosure Act 2012

NSW

Public Interest Disclosures Act 1994

NT

Public Interest Disclosure Act 2008

QLD

Public Interest Disclosure Act 2010*

SA

Public Interest Disclosure Act 2018

TAS

Public Interest Disclosures Act 2002

VIC

Protected Disclosure Act 2012 Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Act 2019

WA

Public Interest Disclosure Act 2003

* Provides some private sector coverage.

If you are not sure about the application of the whistleblower/protected disclosure legislation, err on the side of caution and get advice from the organisation’s most senior whistleblower officer (or the anti-corruption agency itself) before proceeding. Concurrent external investigation Another investigation may be undertaken into the same allegations, by the relevant workplace health and safety body, the Fair Work Commission, the ombudsman, an anti-corruption commission or the police. If you become aware that there is an existing investigation underway by an external body, we recommend that you do not take any steps to investigate before getting the written approval of that external body. If you suspect that either party has taken their concerns to an outside body, or if an outside body has been informed of the matter but not yet started its own investigation, we recommend the following steps: 1. If the external body has already been informed about the matter by one of the parties, inform the external body that the organisation wishes to conduct its own investigation. 2. As a general rule, take guidance from the outside body and avoid hampering any external enquiry or investigation. 3. Comply with any direction by the external body to suspend your investigation. You may be allowed to continue, but you may also be asked to avoid interviewing anyone who has not already been interviewed by the external body. This is so you do not inadvertently taint the witness’ evidence or reveal information of which they were not already aware. In this case, do your best to accommodate and defer to the outside body’s investigation, as it probably takes precedence over the employer organisation’s interests. 4. If the respondent is not aware that the complainant has taken the matter to the external body, do not inform the respondent (or anyone else). You do not want to reveal anything to the respondent that the complainant or the external body has not authorised you to reveal, or in other ways disrupt or compromise the external investigation. In this situation, without the respondent knowing that the matter is being investigated by the external body, you cannot proceed with the investigation. This is because you have information you cannot share with the respondent, and this may affect the answers they give or their ability to make an informed decision to participate in your investigation.

In some circumstances, the investigation may not be able to proceed for some time. This is because one or both of the parties may have received their own legal advice not to give any evidence in your workplace investigation prior to the resolution of external proceedings, so as not to prejudice their position. Delay of this sort can pose complex issues for the organisation that has its own legal obligations to mitigate and manage risk, and its obligations to protect the complainant and others from further inappropriate behaviours. Seek legal advice early where a concurrent external investigation is creating additional risk for the organisation. Footnotes 1

Intico (Vic) Pty Ltd v Walmsley [2004] VSCA 90.

2

R Smith and AJ Brown, “The good, the bad and the ugly: Whistleblowing outcomes” in A J Brown (ed) Whistleblowing in the Australian Public Sector, (2008) ANU Press; and AJ Brown et al, “Whistling While They Work 2: Improving managerial responses to whistleblowing in public and private sector organisations”, Griffith University, 2019, available at www.whistlingwhiletheywork.edu.au/, accessed July 2020.

¶1.4 Is a formal investigation appropriate? Triage the complaint and consider the alternatives Don’t use a sledgehammer to crack a nut! A formal investigation may not be appropriate in all cases. The toolkit of options available to the employer to deal with complaints of inappropriate behaviour includes a range of alternatives to investigation, including mediation, training, counselling or coaching. Internal decision-makers should always “triage” complaints carefully and identify the best approach in the circumstances. Alternative dispute resolution (“ADR”) options such as mediation or facilitated discussion, and professional development options such as coaching and training, are less costly, less time consuming and less likely to damage relationships than workplace investigations. These options should therefore always be thoroughly explored as possible alternatives to investigation — or as a preliminary step before an investigation is pursued — when deciding whether to investigate or not. For example, if the alleged misconduct (even if proven) would not result in any disciplinary action and the parties believe that they can still work together, it will be more appropriate to attempt a mediation or problem-solving discussion. This will give the parties an opportunity to share and resolve their concerns, and to agree on how they can work together in future. This is a far quicker, less polarising process to run within a workplace. If the alleged behaviour is not likely to amount to a breach of a workplace policy or code of conduct, even if all allegations are proven, the matter is unlikely to warrant formal investigation. The dispute may involve interpersonal conflict, trivial concerns, disagreement about work processes or decisions, or matters with insufficient connection to the workplace. Such matters might better be addressed by having a quiet word with each party separately, reminding people about required or prohibited conduct, training the team in conflict resolution, holding a workshop to discuss process improvements, or engaging a coach or mentor for one or both parties. Alternatively, if the issues appear to indicate a widespread concern — such as systemic problems with accountability, merit-based decision-making, clarity of role or leadership — a workplace review may be a better approach. A workplace review involves interviews with a group of staff about their experiences of things like: • supervision • understanding of, and connection with, organisational purpose

• accountability and clarity of KPIs • recognition • teamwork • communication • leadership • culture, and • any other perceived areas of concern. The reviewer then reports on the issues, with actionable advice about the steps the organisation can take to improve workplace culture, reduce risk, and improve productivity and compliance. This process will provide the organisation with a far richer and more broad-ranging picture of “what is really going on”, as well as insights into how to manage the problems that are identified. One outcome might be a recommendation that some matters require investigation, among other possible interventions across the team and the business. Case example In the case of XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492, an employee referred to as “XVC” brought proceedings in the Victorian Civil and Administrative Tribunal (VCAT), alleging discrimination on the basis of her sex. XVC had brought concerns of alleged workplace misconduct to the attention of Ms Baronessa, a manager at her employer, Marriott Support Services. The conduct she complained about included a number of sexually inappropriate comments she said a co-worker had made to her and about other women. XVC said that Ms Baronessa offered her no support, did not offer to document the complaint and actively discouraged her from doing so. VCAT accepted her evidence that Ms Baronessa had told her “You are working in a man’s working environment and you need to expect that kind of unwanted attention” and advised her to “calm down”. She also said that maybe XVC was “being oversensitive”. VCAT found that Ms Baronessa treated XVC less favourably because of her sex, and compounded the unfavourable treatment that XVC had received from colleague YLH by discouraging XVC from making any formal complaint about conduct which amounted to sexual harassment, including suggesting that she was oversensitive. VCAT also found that Ms Baronessa’s remarks, and her employer’s apparent acceptance of them, subjected XVC to detriment — namely they caused her to feel upset, and humiliated.

¶1.5 When an investigation is not appropriate Investigations are not appropriate when alternative dispute resolution options are available and are suitable for the dispute that has arisen. They are also not appropriate for trivial matters that will not lead to disciplinary steps, even if allegations are proven. In fact, investigations should only be commenced when they are absolutely necessary because, even done well and fairly, workplace investigations do have negative impacts on the individuals involved, and on teams and organisations. Done poorly, the negative impacts are greatly increased. Most notable of these impacts for the parties are an entrenchment in the parties’ polarised positions and the very significant anxiety and stress associated with the process, the time it takes, whether they will be believed or not and what the outcome will be. Witnesses are often uncomfortable in their role, concerned about how their evidence will be used and what impact it will have on their colleagues. HR professionals, who are managing stakeholders, the rights and wellbeing of the participants, as well as the outcome and the aftermath of the investigation, have a complex and high-risk task. Therefore, we strongly recommend that if there are any other viable alternatives to investigation, these should be attempted in the first instance. For example, complaints about behavioural issues might relate to interpersonal differences that have escalated to a dispute but remain amenable to mediation, facilitated discussion, coaching or counselling. A similar approach can be taken during an investigation if it becomes apparent to you that the parties

might still be amenable to resolving their issues through ADR options. Discuss this option with the parties, or your instructor, and explore the benefits and possibility of the ADR approach. There is no rule that once you start an investigation, you must finish it. Do take the opportunity to resolve issues if the opportunity arises, even during an investigation. (You will usually need to appoint another person to conduct the ADR process such as mediation or facilitated discussion.) Lastly, the investigation process should never be used when it is an abuse of process, as this will profoundly damage the integrity of your complaints and investigation process. An abuse of process may occur in the following situations: • an investigation is instigated by an employer as a means to exit an employee from the organisation, rather than with the aim of finding out what has happened in order to make a sound disciplinary decision • the investigation process is used to manage poor performance rather than the performance management process • the investigation is instigated with malice, involving an ulterior motive (such as to put an employee under pressure or punish them for exercising a workplace right), or an absence of belief in the possible truth of the allegation • the employer intends to direct or control the outcome of the investigation (for example, by withholding key evidence or access to witnesses) to achieve a particular result, or • only vague, generalised allegations are available, which cannot be fairly put to the respondent for response. Case example In Lynette Bayly v Bendigo TAFE and others [2017] FWC 1886, an employee obtained an injunction to prevent a workplace investigation from going ahead (and also preventing any disciplinary findings or termination of employment) before the Commission determined the employee’s substantive application for a stop bullying order. This case is the first of its kind to obtain this sort of interim order. Ms Bayly had made a complaint of her own, however, after her complaint was lodged, she herself became the subject of misconduct allegations and a workplace investigation into those allegations was initiated. During the investigation, Ms Bayly became unwell and was not able to attend a meeting to discuss the investigation findings. There was a possibility she would have her employment terminated at that meeting. She then sought stop bullying orders at the Commission and was successful in obtaining orders to prevent the investigation from continuing, until her substantive case had been heard. This case demonstrates that where a workplace investigation is carried out for an illegitimate purpose, it can provide an employee with an opportunity to argue that the workplace investigation amounts to further bullying conduct and seek a remedy at the Commission.

¶1.6 How formal should the investigation be? Judge the risks Investigations can be run in many ways. Some investigations can be short and relatively informal. Others can be lengthy and formal, usually where allegations are complex and serious, where there is a large amount of documentary, digital and verbal evidence to consider, or where it is foreseeable that the investigation findings and decisions made may result in legal proceedings. A quick and straightforward investigation will still apply the “golden rules” of procedural fairness, but will likely be less detailed in terms of the written record. It may be as simple as the investigator having conversations with the relevant individuals, taking handwritten notes and writing a short memorandum setting out the conclusions you have drawn and the basis on which you have drawn them (that is, what evidence you have relied upon and why). See Chapter 5 for more details about the “golden rules”. By comparison, formal and highly risk-managed workplace investigations will entail: • recording interviews (by audio recordings, transcripts, or detailed handwritten notes) • providing each participant with the record of their interview

• keeping detailed contemporaneous file notes of every conversation you have with any participant or potential participant (such as telephone calls arranging interviews), as well as your instructor (if there is one), with the file notes later being attached to your report • giving participants longer to consider any information before being asked to comment on it • conducting most correspondence with the parties in writing, rather than giving them information verbally, and • writing a more detailed investigation report which describes the steps you took in the investigation, any issues that arose and how you resolved them, and identifies relevant evidence you considered in relation to each allegation in making your findings of fact, and decisions about breach of policy. Subject to any mandatory requirements in the organisation’s policies and procedures, the choice is yours as to what process is required. The appropriate level of formality is usually dictated by the nature of the allegations, their seriousness and complexity, and the likely consequences for the parties if the allegations are proven. It should also be dictated by the risk to the organisation. Organisational risks likely to be on the investigator’s mind as they decide on their process will include the matters in the checklist below. Ask yourself, where do these allegations sit, on the spectrum of risk to the organisation?

Checklist: Things to consider — Spectrum of risk Seriousness □ Is it possible that your organisation may terminate the employment of the respondent, if the allegations are proven? □ Is the complainant or respondent very senior in the organisation? □ Would the alleged conduct be a serious breach of your policies, if it did take place? □ Would the alleged conduct be a breach of any law or other enforceable rule of conduct, if it did take place? External Stakeholders □ Could the alleged conduct have broader implications for the organisation (such as, needing to contact customers or other external stakeholders), if it is found to have taken place? □ Could the organisation be required to report its handling of the matter to outside regulators, such as accreditation bodies, ombudsmen or auditors? □ Is the Board of the organisation (or other senior stakeholders such as a government minister) interested in the outcome? □ Are there other external reasons (such as political reasons, relationships with stakeholders or contractual requirements) why the organisation should take a formal approach? Industrial Relations □ Are there any industrial relations implications? □ Could this matter potentially set a precedent for future actions by the employer? Policy Requirements

□ Are either of the parties already involved in another workplace process (such as a disciplinary process or poor performance management) which means that the organisation needs a particularly detailed and robust determination of the allegations? Systemic Issues □ Are there potentially other people affected by the alleged behaviour, who may also come forward? Complexity □ Are there multiple parties, numerous allegations, complex information or voluminous documentation? Legal risk □ Is either party anticipated to have a highly litigious or aggressive response to the process? □ Is it likely that this matter could result in legal action against the organisation? Reputation □ If these allegations became public somehow, would it be a high-profile media story which may affect reputation and morale (rather than just the subject of low-level industry gossip)? □ Are leaks to traditional media or social media likely? Financial Risk □ Is much money at risk (for example, penalties, repayment of sums wrongly paid)? Values □ Does the organisation want to send a clear message to employees that this sort of alleged misconduct will be taken seriously?

This checklist is available for complimentary download at www.worklogic.com.au/downloads. In general, if one or more of the above factors are present, the greater the potential risks to the organisation, and so the more formal and detailed the investigation should be. In Chapter 3, we examine the pros and cons of a formal or full investigation. Key points • A workplace investigation is an enquiry into allegations of misconduct initiated by allegations, a grievance or concerns. • The aim of a workplace investigation is to decide whether the alleged conduct did occur, and sometimes also whether the organisation’s policies or procedures were breached. • Once the organisation is put on notice of possible misconduct, it should take steps to investigate, unless the alleged conduct is trivial, impossible or irrelevant, or it would not amount to a breach of policy even if proven, or the allegations are vexatious or malicious, or the subject matter and parties are amenable to alternative dispute resolution processes. • Your investigation must comply with relevant organisational policies and procedures, applicable laws and the directions of any external body that is involved. • The level of formality, procedural strictness and detail required in your investigation will depend on the requirements of laws, policies and procedures, as well as your risk assessment.

Chapter 2: Scope of the Investigation The scope of a workplace investigation

¶2.1

Types of decision-making: Fact-finding and value judgment ¶2.2 Common problems with allegations

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Drafting allegations

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¶2.1 The scope of a workplace investigation While the initial focus of an investigation is often a letter of complaint or the complainant’s verbal account of what occurred, the complaint alone does not determine the scope of an investigation. Subject to any express requirement to the contrary, the organisation can decide which allegations need to be investigated, irrespective of what the original allegations state. As discussed above, it may be that the allegations do not need to be investigated, because they would not amount to a breach of policy if proven, or they are trivial or irrelevant to the workplace. In other cases, the allegations may have important particulars and details missing. In such cases, the investigator or the organisation will need to ask the complainant for more information before the scope of the complaint, the seriousness of the allegations, the ability for the allegations to be investigated procedurally fairly, and the appropriateness of an investigation process, are finally decided. The scope of the investigation is ultimately a decision for the organisation to make. This is because it is the organisation that is responsible for ensuring all of its policies are followed, and that a risk-managed, safe and ethical workplace is maintained. In this regard, as the internal investigator, you may be tasked with deciding the scope of the matter. Alternatively, an individual in your organisation may provide you with directions which set out the remit of your investigation. Before starting your investigation, think about what is within and outside the scope. If you are appointed to conduct the investigation by someone else within your organisation, confirm your understanding with that person. In order to be clear about the scope of your investigation, seek answers to the following questions: 1. What allegations or parts of the allegations actually need to be investigated? 2. What allegations or parts of the allegations cannot be determined by you? For example, an allegation that certain conduct has caused the complainant to suffer a medical condition is not usually something that can be investigated without medical training 3. What shouldn’t be investigated by you? For example, is there anything contained in the allegations that would be inappropriate for you to explore, such as an employee’s personal activities outside of work? 4. What decisions will you be making as the investigator? 5. What policies are relevant to the alleged behaviours? 6. Look at the wording of the allegations — how clear and precise are they? In this chapter, we look at the different types of scoping decisions you may need to make as the investigator and how to deal with common problems regarding the wording of allegations.

¶2.2 Types of decision-making: Fact-finding and value judgment

A smart way to quickly determine the scope and terms of reference is to think ahead to what you are going to produce at the end of the process: conclusions contained in the investigation report. There are three types of conclusion that you may be required to provide in an investigation report: • What happened, on the balance of probabilities? • Whether the conduct found to have occurred is a breach of policy or not, and possibly • What organisational response is appropriate? Consider this example. Your investigation finds that Bronwen transferred $1,847.01 from the company account to her own bank account on 28 June. This is a finding of fact. You also find that Bronwen produced receipts for genuine business expenses she had previously made, and obtained sign-off from her manager, before making the transfer. These are also findings of fact. You consider Bronwen’s duties and responsibilities as the Finance Manager, the bank account policy and finance delegations, and decide that her actions did not constitute a breach (because she was reimbursing herself for genuine business expenses and followed the procedure for reimbursements). This is an assessment of whether the proven behaviour breaches the company’s rules. You decide that there is no need for training, a warning or any other response by the company, as Bronwen has acted appropriately and not breached the policy or procedure. This is a recommendation about the appropriate consequences. In all cases, as investigator, you will make findings of fact. In-house investigators usually also comment on whether there has been a breach of policy, and are sometimes tasked with deciding the appropriate organisational response. These different types of decision-making are described below. Fact-finding In a fact-finding investigation, you will collect evidence and determine whether the allegations are substantiated or not, on the balance of probabilities. You may be familiar with some of the other phrases that refer to this same task and which can be used interchangeably, such as: drawing conclusions, deciding whether the allegations are proven or not, making findings of fact, or making findings. Breach of policy, code or standard If you find the alleged conduct has occurred, you can then consider in what way this conduct did or did not comply with the organisation’s policy. In making this assessment, make reference to a clear definition of the inappropriate behaviour from your organisation’s policy and procedure, and compare the proven behaviour with that definition. For example: “I find, on the balance of probabilities, that the allegation that Jason raised his voice to Murray is proven. The behaviour found proven does not amount to bullying as defined in ACME Ltd’s bullying policy because it occurred once only and the definition requires a ‘repetitive or persistent pattern of behaviour’.” Therefore, when setting the scope of the investigation, the organisation should identify exactly the workplace policy or procedure that has potentially been breached. It is useful to identify that policy early in the planning stage, so that during the investigation you will have the behavioural standard or rule in mind. This will assist you to collect the relevant evidence you need in order to assess the behaviour against the rule. For example, in relation to an allegation of sexual harassment, you will need to collect evidence as to whether the behaviour was of a sexual nature or not, and whether it was “unwelcome” or not, as both are elements of the definition of unlawful sexual harassment. Organisation’s response A finding of fact and breach of policy that “sits on the shelf” with no practical consequences will do little to educate the employee who engaged in wrongdoing, improve the organisation’s culture and conduct standards, or manage risk to the organisation. If it is established that certain conduct breached the organisation’s expected standards of behaviour, some action should be taken to address this. Such action

might include disciplinary action, training, coaching, and correspondence with the parties and participants. Broader initiatives across the organisation might also be considered: an audit to identify any similar conduct, a review of policies and procedures, a review of the organisational culture, a review of the compliance program or performance development processes, and other ways to reduce risk and reinforce the values of the organisation. If possible, it is preferable that one person makes the decision on both facts and policy breach (the investigator) and, if available, a second person decides the appropriate consequences for the respondent (the decision-maker — who is often a senior line manager of the respondent). This can protect the investigator from perceptions of bias that can arise if the investigator also decides to impose discipline or terminate the employment of the respondent. Where the allegation includes a breach of the law, it is likely that the consequences for the respondent will be serious, and you may wish to seek legal advice. Best practice is to separate the conclusions about what happened and whether it breached policy (investigation outcomes) from the decision about consequences for the parties (disciplinary process).

¶2.3 Common problems with allegations Few complainants understand how to draft their allegations so that they can be readily and effectively investigated. This is understandable and commonplace — most people have had no prior experience of what might be required in a workplace investigation. If the complaint document does not clearly and precisely state the allegations of fact, their complaint may fail to be proven (or even investigated at all) simply because of the drafting. Vague allegations also make it impossible to provide appropriate clarity to the respondent so that they can fairly respond. While it may be tempting, never start an investigation in the hope that the allegations will become clear while you are collecting the evidence. Vague allegations are surprisingly difficult to fix once your investigation has gained momentum. Most importantly, if the allegations are unclear or poorly particularised, it is procedurally unfair to put such allegations to the respondent and expect them to respond. Here are some common problems with allegations that investigators often encounter. If you identify these problems early, you will have time to rectify them before the investigation begins. Impact statements and feelings Many letters of complaint are written in the form of a story and focus on the impact of the conduct alleged and how upset or stressed the complainant is feeling. While there is nothing wrong with that, the complainant feeling bad does not necessarily mean that the respondent has broken an organisational rule. For example: “Mr Conias’ behaviour is making me really stressed. I don’t think it is acceptable. It’s making me sick and I can’t face going to work anymore. I know he does this to other people too.” The above allegation lacks any detail of the behaviours alleged. What did Mr Conias actually do? Before it can be investigated, the allegation should state specifically what Mr Conias did, where did the behaviour occur, when it occurred, how often and to whom. Claims about impacts on the complainant’s health are common in letters of complaint. It may or may not be necessary to establish whether a health impact has occurred, in order to determine whether any proven conduct of the respondent has breached a policy. Where it is important to verify a claim about health, however, this will normally be done by obtaining a statement from a qualified health practitioner. Comments about third parties Sometimes complaints contain negative comments about third parties against whom no allegations are made. Often such comments are criticisms of bystanders or senior managers who, the complainant claims, should have intervened. If they are irrelevant to the allegations being investigated, comments

about third parties’ actions should be removed before the allegations are given to the respondent. Rumours Some complaints include guesswork or are based on rumours and suspicion. For example: “I am pretty sure that Carla or one of her mates is involved in this, I think she used to get up to this sort of thing in her past job from what I have heard around here and now she’s doing it again.” Does the complainant have any direct, personal knowledge on which this accusation is based? If not, and without specific information, it would be procedurally unfair to put this allegation to Carla and expect her to respond. Context Complaints often contain details about the context of the alleged conduct which are not, in and of themselves, allegations of misconduct. For example: “I got to work at 8.15am and no one else was here. I started work and saw a few staff members arrive. When the respondent arrived, she walked past my desk without even saying hello and then 15 minutes later she sent me an offensive email.” The first two sentences are context only. The only allegation of possible wrongdoing is, “she walked past my desk without saying hello and she sent me an offensive email”. Usually, you will not need to make a formal decision about background or context matters. It is preferable for the allegations to contain only enough context in order to make it clear what is being alleged against the respondent, and for the “context” and “allegations” to be stated separately (so it is clear what you will be making findings about). This will ensure that your investigation is targeted, efficient and isn’t diverted into unimportant matters. In contrast, in interview, it will be appropriate to explore that relevant context. Much of what you learn in interviews from the parties and witnesses will be contextual. People naturally describe the context of situations and events when they recount them, and the context can be very useful as you piece together what happened. The allegation put to the respondent, however, only needs enough detail for the respondent to be able to identify and understand what they are alleged to have done. Subjective conclusions and emotive statements Complaints will often include the complainant’s own opinions and conclusions about what motivated the respondent. Here is an example: “This was the worst piece of outrage I have ever had the indignity to experience and is a clear breach of policy and needs urgent action to stop it ever happening again. There is no other logical conclusion than that the respondent wants me to be isolated even to the detriment of our clients as I am completely excluded from meetings and there is no sane reason for totally isolating me from the staff meetings besides the obvious fact that the respondent is determined to slowly but surely force me out of this organisation because I’m a single parent.” Subjective conclusions will often be highly emotive and critical of the respondent. While they demonstrate the strength of the complainant’s emotion, they do not constitute compelling evidence that the alleged behaviour did in fact occur, or the reasons why it occurred (if in fact it did). As you cannot make findings of fact about reproaches (such as, “This was the worst piece of outrage I have ever had the indignity to experience”, above), generalised speculative comment or statements of emotion, they should not form part of the allegations you are investigating and do not need to be put to the respondent. On the other hand, a claim that the respondent acted in a particular way for an improper reason can be investigated, and such a claim is often of genuine interest to an employer. In the above example, if the complainant was “completely excluded from meetings”, this may not be wrongdoing at all if the meetings in question were inappropriate for the complainant to attend. It is a different thing entirely if the complainant should reasonably have gone to the meetings, and the respondent did this only to “force me out of this organisation because I’m a single parent” (see “Investigating Discrimination” in Chapter 4).

In order to be able to investigate the issues raised above, the complainant should be asked what was the exact behaviour that was the “worst piece of outrage”, and how the respondent “isolated” them, and when, where and how often it has occurred. The complainant also needs to explain the basis on which they believe they were discriminated against. You can then investigate whether the isolation occurred or not, and whether it was a breach of policy or discriminatory as the complainant claims. Case example In Frank Natoli v Envision Employment Services [2018] FWC 4034, Mr Natoli was dismissed by Envision, his employer, following its finding that five allegations that had been made in relation to his conduct were substantiated. The allegations were that Mr Natoli: 1. on 22 June 2017 and 27 June 2017 had interactions with a client, which Envision described as harassment: asking her out for lunch, and insisting she drink his “proper coffee”, and that he was sitting too close to the client 2. on 27 June 2017 and 29 June 2017 called female employees in the sewing room “witches”, and on 29 June 2017 had “stormed into the sewing room and confronted the employees” and “made an offensive gesture towards the women” 3. had intimidated one of the employees who had raised concerns about his behaviour, and when another employee, Mr Collins, attempted to challenge him, a violent argument had ensued 4. challenged Mr Collins and suggested to Mr Collins that they both step outside, and 5. refused to apologise for any offense or distress he had caused the employees, and then demonstrated a lack of empathy and understanding of the work Envision did. The dismissal followed an initial, informal investigation and then the commencement and conclusion of an independent investigation by an external investigator. Mr Natoli was notified of the allegations in writing and given two opportunities to meet the investigator, but did not provide a written response or meet with the investigator. The employer appears to have taken the view, when a further request from Mr Natoli was received to delay the meeting to the following day, that the investigation process could have dragged on for too long. That then prompted the decision to dismiss Mr Natoli. In the ensuing unfair dismissal proceedings brought by Mr Natoli, the Commission ultimately found “on fine balance” that Mr Natoli’s dismissal was not “harsh, unjust or unreasonable”. It noted, however, that there were procedural flaws in the process followed by the employer. These included Mr Natoli not having been given the opportunity to respond at any time to at least two of the alleged incidents, and that some of the allegations, as set out in the letter to him, were unclear, lacking in detail, not clear statements of alleged facts and/or lacked dates. As well, the allegations were also described in emotional terms and not as objective alleged facts, which was something that the Commission suggested could lead to a conclusion that the process was biased against Mr Natoli.

Too many allegations Occasionally a complaint letter contains 30, 40, 50 or more allegations. The organisation may choose or be obliged to investigate all of them, in which case you will need to consider how to manage large numbers of allegations. You might: • identify which allegations, if proven, are matters requiring action by the organisation and focus on these only (or first) • invite the complainant to explain which are the most serious from their perspective and focus on these only (or first) • focus on the more recent allegations only, and/or • select only one of a number of allegations of the same or similar alleged behaviour. Some complainants will object to narrowing the scope of their allegations, because they will see the number of issues as reinforcing the strength of the complaint. The impact of narrowing scope needs to be carefully considered in relation to bullying complaints, in which repeated unreasonable conduct needs to be established in order to meet the definition of bullying. Remember, however, that the investigation is the organisation’s job, based on the goals and objectives set out above. If the organisation does not need to determine every allegation to make a sound, defensible decision which addresses the main issues in the complainant’s complaint and minimises its risks, then you should be confident to decide the scope in line with the organisation’s available resources. Vague allegations Allegations that are vague, incomplete, or imprecise about dates, times or other details can be impossible to investigate fairly. You will require more details or “particulars” so that the allegations you put to a

respondent for response are clear and precise. The words “constantly” and “always” are too vague to investigate, and usually exaggerated. As a result, such allegations will usually be found unproven. It is physically impossible for the respondent to have “always” done anything, except perhaps to breathe in and out! Complainants should be asked to particularise their allegations by stating when and how many times the conduct or behaviour occurred. Even if they cannot identify specific dates, they may be able to clarify that, for example, by “constantly” they meant “weekly, on average, over the last 12 months”. Stale allegations Old or “stale” allegations, which relate to conduct dating back years before, can be challenging to investigate due to the passage of time and erosion of witnesses’ memory. Over time, witnesses may have forgotten the events or have discussed them with others. Their recollections to some extent may have shifted based on those discussions, and may well no longer be a fresh, independent recollection based on what they observed. While a blanket prohibition on raising allegations of behaviour from the distant past may be tempting, this is not always appropriate or possible. For example, the definition of bullying behaviour requires that it occurs repeatedly over time, and a significant fraud or physical assault is so obvious and memorable that it is likely that the participants should be able to recall and comment on it. Old allegations can be considered on a case-by-case basis. If the evidence available is too poor, no longer available (such as deleted data), or apparently tainted, state this in your report. It may not be possible to make a finding of fact if the evidence is not considered reliable due to the passage of time. Missing particulars Case example In Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915, Commissioner Richards evaluated an investigation into non-specific allegations of bullying and whether a subsequent termination of the respondent’s employment was justified. He held that although there was a valid reason to terminate the respondent on the basis of her performance, the dismissal was harsh, unjust or unreasonable because the respondent was not afforded procedural fairness in the investigation that was undertaken. The fatal flaw in that investigation was that the alleged misconduct was not sufficiently particularised so that the respondent was able to respond, even though “on the face of it” the allegations were provided. Although a 19-page schedule was provided to the respondent listing 37 allegations, and a reasonable and extended time frame was provided to respond, this was not found to be sufficient. For example, not all allegations were “sufficiently identifiable by reason of the absence of any identifiable event or particularised conduct to which the Applicant was capable of responding. In most instances, this arose from the allegation being too generalised or lacking any chronological structure”.

The above case example demonstrates how important it is that the organisation (together with the complainant) gets the allegations right and includes any missing particulars before the investigation commences. This issue is particularly fraught where bullying comprised of repeated low-level incidents is alleged. Such bullying may not lend itself to particularisation and detail, being comprised of many apparently “small” incidents over a long period of time, the details of which can be hard for the complainant to remember. If the allegations cannot be particularised sufficiently by the complainant, the organisation may need to address these types of behaviour using other options, such as a workplace review or targeted training. Ask the complainant to be specific In summary, the allegations must be clear and contain enough particulars for the respondent to be able to understand exactly what they are alleged to have done. The complaint should not include subjective conclusions, emotive statements, “stale” allegations, vague claims, rumours or comments about third parties. Where necessary, you should ask the complainant to provide more details, and explain that without knowing the “who, what, when and why” of the wrongdoing, it would be procedurally unfair to proceed. It is advisable to include in the organisation’s complaint procedures a statement about the level of detail required for the investigation to proceed.

The complainant should be asked for “who, what, when and why” particulars, before the investigation can start, that is: • Who did that to you? Who was present at the time? • What did the respondent do, exactly? • When did they do that? If it was repeated, how many times, and over what time period? • Why do you say that was wrong? Although particularising the allegations might seem to delay the process initially, it can also save considerable wasted investigation time later in the process. You will also be able to provide the respondent with a procedurally fair opportunity to respond. Without procedural fairness, you will be unable to make defensible findings of fact. Case example In Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107, it was found that the investigation was “amateurish and inadequate” and lacked procedural fairness. The court noted that the investigator: • failed to provide the allegations to the respondent before the interview and began the interview by asking, “Do you know why you are here?” and only put specific “incidents” to him after he answered • exhibited bias by referring to the respondent in correspondence as the “alleged offender” • failed to provide the respondent with a transcript of the interview. Eventually notes were provided after the respondent was “convicted”, but only in summary form • failed to specify the allegations in the report itself, instead noting that there were a number of “concerns” based on hearsay • discounted or did not include evidence, without explanation, of denials of the allegations by the person who had suffered the alleged misconduct • made inadequate findings of fact • relied heavily on hearsay, some of which was “bizarre”, and • ignored circumstantial evidence.

¶2.4 Drafting allegations Whose role is it to draft clear and investigable allegations? Most allegations are drafted by the complainant. Some allegations, however, are verbal or have come to you via a third party. If the complaint is not detailed enough to investigate and the complainant needs to be helped to put the complaint into investigable form, the question arises as to who (if anyone) is responsible for assisting the complainant to particularise the allegations. Some complainants can draft allegations themselves, but for others it is quite a difficult task. Think about how your involvement as investigator in helping the complainant to write written allegations will be perceived by the respondent. Some investigators meet with the complainant in an interview and effectively assist them to clarify their allegations. These allegations are then later put to the respondent, who might reasonably doubt the independence of the investigator who will later be making an assessment of the truth of those allegations. If the complainant seeks your assistance in clarifying the allegations in this way, take great care to maintain your independence. If you help the complainant to clarify their allegations, you will likely appear to the respondent to be on the complainant’s side and advocating for them. The respondent might, quite reasonably, resent that they did not receive the same level of “help” with their response. In such a situation it will be very difficult to avoid a perception of bias by the respondent or others. On the other hand, if an investigator decides after interviewing the complainant that the complaint is not

worth investigating — for example, because it appears fanciful or implausible — this can be pre-emptive and create risks for the employer. As you are the investigator, we recommend that you avoid providing assistance to the complainant, and avoid acting in a way that could later be perceived to indicate that you were the advocate for, or biased against, the complainant. Case example In the Administrative Appeals Tribunal matter of PLBB and Comcare (Compensation) [2020] AATA 1348, a long-term Centrelink employee sought a review of a decision to refuse her workers’ compensation, claiming that she suffered a recurrence of an adjustment disorder with anxiety, as a result of her employer’s management of a bullying and harassment complaint that she made against her manager, Ms LJ and three other managers. Ms LJ had also made a complaint against the employee and Mr BP, a Senior Human Resources Consultant in the organisation, was asked to undertake a preliminary investigation of the complaints and to provide a report and recommendations as to whether further action should be taken in relation to the complaints. Mr BP elected to investigate Ms LJ’s complaint against the employee first and interviewed five witnesses, not including the employee. He made a recommendation, which the organisation accepted, that no further action be taken regarding the employee’s complaint. She alleged that the preliminary investigation was unfair, and that the employer was wrong to accept his recommendation. When reviewing the decision, Member Sandra Taglieri considered the employer’s argument that if the employee was found to have suffered an injury as a result of the employer’s actions in the course of her employment, then it was not compensable, on the basis that it was suffered as a result of reasonable action taken in a reasonable manner. Member Taglieri determined that the actions and in particular, the investigation process undertaken by the employer, did not constitute reasonable action taken in a reasonable manner. In reaching this conclusion, she took into account the following issues. • The basis upon which Mr BP had been instructed to undertake the preliminary investigation and make recommendations was not in accordance with the Public Service Act 1999 (Cth), as the staff who made the request did not have the requisite authority to do so or to make decisions about actions relating to a bullying and harassment complaint. • Mr BP's preliminary report failed to consider a number of relevant issues when considering the substance of the employee's complaint. • In the interest of expediency, Mr BP spoke to five other parties when investigating the employee's complaint; however, he did so in the context of investigating Ms LJ's complaint against the employee. What he should have done was ask them separately about the employee's allegations against Ms LJ. His failure to do so was capable of conveying bias. • The method of investigation and use of the same investigator for both complaints did not accord with the principles applicable to the employer's complaint management process. It, therefore, followed that the adoption of Mr BP's recommendation not to take any action in relation to the employee's complaint was tainted by unreasonableness.

Within an organisation, if possible, it is always preferable that another person helps the complainant to clarify their complaint. This might be their support person, union representative, a staff member from Human Resources who is not involved in the investigation, or an external consultant. If it is not possible to find anyone else to assist the complainant to draft their allegations clearly, try to remain “at arm’s length” during the process by asking for specific details of the allegations, and write down the complainant’s own words wherever possible. Address any complaints about your role by explaining to both parties that the purpose of particularising the allegations is so that the respondent may have a full and fair opportunity to respond. If you, as the investigator, then draft allegations for the organisation to consider, call this the “investigator’s understanding of allegations”, rather than “the complaint”. An impartial investigator cannot “draft the complaint”. An impartial investigator can interview the complainant about their concerns, gathering extra details that are needed for the investigation to be procedurally fair, and then draft “the investigator’s understanding of the allegations”, which the complainant then reviews, edits and confirms. A guide for drafting investigable allegations is available for complimentary download at www.worklogic.com.au/downloads. Confirm that the allegations are complete The investigation process can be significantly delayed if the complainant raises more allegations during the investigation. It is prudent to close the scope of the investigation with the complainant upfront. After the allegations have been fully particularised, ask the complainant to confirm in writing that their

allegations are accurate and complete, and that there are no more allegations they wish to raise. New allegations arising during the investigation Setting the scope as suggested above can help you to avoid “scope creep” during the investigation. It can be all too easy to take into consideration unsolicited “evidence” provided voluntarily by witnesses or other staff in the organisation about the respondent’s previous behaviours that are similar to those being investigated. This evidence is usually irrelevant to whether the alleged behaviour occurred on this occasion, but sometimes investigators find themselves accidentally investigating other people’s complaints against the respondent. The risk of incidental “scope creep” is that you will greatly increase the time and cost of the investigation, and potentially appear biased to the respondent because you have improperly engaged in a “witch-hunt” and gone outside your scope by including new matters in your investigation. There is also a risk that you will make findings about allegations which were not properly put to the respondent for response. If a witness says “the respondent did that to me too”, or “I saw the respondent do something similar to someone else another time”, advise them that they can make their own complaint about conduct which they experienced if they wish, but that this investigation is focused on the complainant’s allegations. (See also Chapters 11 and 17 for guidance on when this sort of evidence is relevant to making findings of fact because it has less weight as “similar fact evidence”.) We recommend a similar response when a respondent refers to alleged misconduct on the part of the complainant (or another employee) to explain or justify their own behaviour, blames their superior for allowing that type of conduct, or tries the “Nuremberg” defence (“my boss told me to do it”). On the other hand, sometimes serious allegations against the respondent (or the complainant) will be raised by others during an investigation and it will be more effective to include them in the scope of the current investigation. In such cases, as long as you handle new allegations in a procedurally fair way, and do not actively seek additional allegations against the respondent in the interview (that is, conduct a witch-hunt or go on a “fishing expedition” for new claims of wrongdoing), those matters can be added to your investigation scope at an early stage of your investigation. Alternatively, if your investigation is well advanced, the organisation may decide to conduct a separate investigation of the new allegations afterwards. To be procedurally fair and transparent, ensure that the new allegations are provided to the respondent in writing before they are interviewed about the matter. To maintain the respondent’s trust in the process, you should explain to the respondent how the new matters have come to light, for example, that they were offered unsolicited during an interview with the complainant or a witness. Inform the respondent that he or she will be invited to respond to the new allegations and that findings of fact will also be made about them. Avoid scope creep Permitting “scope creep” to occur during your investigation risks extending the time, effort and organisational impact of the investigation to unmanageable levels. It also creates risks to procedural fairness and to your perceived impartiality.

Key points • Before starting an investigation, have a clear sense of what the investigation report will address and what findings/comments/recommendations are required. • Establish the scope of your investigation with clear, fully particularised allegations. • Ensure that the allegations are specific and contain the “who, what, when and why” of the alleged events. • Make sure that the allegations do not contain emotive statements, subjective conclusions, “stale” allegations, vague claims, rumours or comments about third parties. • Ideally, before the investigation commences, the complainant should confirm in writing that the allegations are accurate and complete, and that there are no more allegations which they wish to raise. • If new allegations arise during the investigation, ensure that you act impartially and fairly.

Case Study — Yellow Duck Limited — Episode 1: Sam’s email You have been an HR Manager at Yellow Duck Ltd,* an Australian listed company, for two and a half years. There’s a reasonably good workplace culture. A few issues around business ethics still exist, partly as a result of the previous owners of the business. They tended to employ their family and friends, and were known to do “deals” with their mates. You enjoy reasonably good relationships with the staff, and the staff turnover is quite low. A few months ago, Sam, an accounts manager, came to see you about how to approach his boss Kristen in relation to what Sam felt was unconstructive negative feedback. Sam felt he wasn’t being given a fair go in his performance review, and that he needed more helpful guidance in order to develop in his role. You gave both Sam and Kristen advice at the time. This appears to have improved the situation. You’ve just made your morning coffee, when the following email pops up in your inbox. From: [email protected] Sent: Friday, 2 February 2018 2:46 PM To: [email protected] Subject: Grievance Hi I have experienced some shocking behaviour from Marisa and I think she is trying to get rid of me because she wants to get a job in this organisation for one of her family members. She has already done this in the past when she got her friend a job here and she didn’t follow the recruitment process. She is making my life an utter misery, what she is doing is outright harassment. As you know I have a skin condition that I have been anxious about all my life. A while ago Marisa started scratching her arm and neck as a “joke” while smirking at me. Then I discovered “Sam’s a scabby specimen” written in pen on a table in the lunchroom and I tried to rub it off but I couldn’t. I heard Marisa and Kim talking about me as we’re in the open plan area and they called me “scabby wonder”. Later I spoke to Marisa and said I felt really embarrassed about it. Marisa told me to lighten up and said stop taking everything so seriously, and that they were just having a laugh. When I told her I felt like I was being bullied, she told me to “back off”. Since that day Kim and Marisa have ignored me and last week when I went to the lunch room both of them got up and left. Then I saw that someone had added to the writing on the table “whinger”. Clearly it was Marisa or Kim who wrote this. Last month at a team meeting, I was presenting about a key client and I saw Marisa scratching herself then she smiled at Kim. She was obviously trying to put me off. It was so inappropriate, I told her to stop it. It’s not true that I yelled. It was to be expected that I was angry. I walked out, it was the last straw. Then last week Brandon gave me a printout of his Facebook page and it shows posts that Marisa and Kim made, and other colleagues were tagged, they referred to me as “mental”. I took Thursday and Friday off on my doctor’s advice because I am so stressed and upset and my eczema is so bad. I don’t want you to tell anyone about this because they are already saying I’m a whinger. I just need some help because I am trying to deal with it in a constructive way but it’s not working. Thanks for advising me about this, I know you’ll support me. Sam. You are aware that Marisa and Kim are in the IT team, and that they are roughly as senior as Sam. Consider the following questions. 1. Are the allegations in the email currently in a form that can be investigated? If not, what are the options to achieve that? 2. Is a workplace investigation the most appropriate way to address these matters? What alternatives exist, for some or all of the concerns that Sam has raised? 3. On the information above, are you able to conduct the investigation? Why or why not? 4. On the basis of Sam’s email, do you have any concerns about risks that might need to be managed (eg confidentiality, victimisation, the parties’ perceptions of your role …)? What might you do to manage those risks?

* This case study, which appears throughout this book, is a complete fiction. Yellow Duck Ltd does not exist at the time of writing. None of the elements, characters or circumstances of this case study are based on any real case, person or circumstance.

Chapter 3: Different Types of Investigation Choosing the right type of investigation

¶3.1

Preliminary enquiry

¶3.2

Preliminary investigation with no findings of fact ¶3.3 Full investigation

¶3.4

Investigation on the papers

¶3.5

Editorial information The investigative process can be tailored, depending on the nature of the allegations. This chapter explores the pros and cons of each of the following alternative types of investigation: 1. A preliminary enquiry — in which you explore the available evidence with key employees, after potential wrongdoing is discovered (such as theft). This may then lead the organisation to put allegations to a respondent in a formal investigative process. 2. An investigation “on the papers” — in which you solely rely on documentary evidence in order to make a finding of fact. 3. Preliminary investigation with no findings of fact — a review of a matter that has arisen in the workplace, with no findings of fact. 4. A full investigation — in which you make findings of fact about allegations of wrongdoing, on the balance of probabilities. It should be noted that irrespective of the type of investigation you undertake, it should be confidential and treat all participants with respect, and it must adhere to the principles of procedural fairness if any negative consequences could flow for any employee.

¶3.1 Choosing the right type of investigation Several considerations should be taken into account when deciding the most appropriate type of investigation for your organisation in the circumstances. These factors include: • how much information is already at hand • the seriousness and nature of the allegations, including whether disciplinary action is a possible consequence if the allegations were to be proven • the level and type of risk to the organisation that the alleged conduct poses — see the “Spectrum of risk” checklist in Chapter 1 • whether (and to what extent) any of your complaint-handling policies give you other options for addressing the situation, and • time and budget constraints. By way of a general guide, the table below shows how these factors determine which type of investigation

is available to you. Be aware of what your workplace policies say about the process to be applied. Best practice policies will clearly state that the employer (rather than the complainant, union or other stakeholder) has the right and discretion to determine what process will be applied. It is important that your decision about which type of investigation you conduct is consistent with the language and obligations set out in your policies. If you proceed in a manner which does not accord with your policies, recent cases indicate that you may be found to have breached the contract of employment and be liable for damages. This risk can arise if your policy clearly creates mutual obligations on employer and employee and is not merely aspirational. For example, if your policy states that you will conduct a full investigation and make findings of fact on the balance of probabilities for all written allegations of bullying, but you then decide to carry out a different process instead — even with good intentions to support the employees to resolve the issues between them — you may have breached your own policy. It is also important to manage the complainant’s and the respondent’s expectations. One party may demand a full investigation to expose the “truth” from their perspective. Alternatively, a party may prefer a process that will provide a quick result so as to move on to resolution faster. It is important that both parties understand what process you have selected and why, and also that the decision about the process to follow is the employer’s decision to make. Case example In Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177, an employee successfully sued her employer for failing to comply with its own investigation policy process. Ms Romero was employed by Farstad as a second officer on board the ship Far Swan when she fell out with her Captain and was relieved of her duties on the ship, at her request. Ms Romero emailed her employer raising concerns about the Captain’s behaviour. Her email did not amount to a formal or informal complaint under Farstad’s Workplace Harassment and Discrimination Policy (Policy) and Farstad made a decision to treat the email as a formal complaint. However, at or about the same time, the Captain also made allegations about Ms Romero’s competency and temperament. Having received these complaints, Farstad then conducted a single investigation mainly of the allegations made by the Captain against Ms Romero, rather than investigating Ms Romero’s allegations. Ms Romero successfully claimed that the Policy formed part of her employment contract and that Farstad acted in breach of its contractual obligations by failing to investigate her complaint in accordance with the terms of the Policy.

¶3.2 Preliminary enquiry Evidence of wrongdoing often comes to the attention of the organisation without any individual “complaint” or “complainant”. For example, it may be clear that money has been stolen, company equipment sabotaged or misused, confidential information has been leaked or some other loss or damage has occurred to the organisation. Alternatively, the organisation may hear indirectly, through a third party report, that behaviours of concern are occurring. In a preliminary enquiry, you identify the loss and damage, and whether wrongdoing has possibly occurred. If it has, is there evidence regarding who might have been responsible? What might they have done, or not done, which led to the loss or damage? Once these things have been explored, the allegations can be put to the respondent in a formal investigation. Though there is no “complainant”, the organisation is entitled to explore the potential wrongdoing to protect its own interests, and then decide what (if any) other intervention is required. A preliminary enquiry is a less formal exploration of circumstances. As no allegations are put to the

respondent and there are no findings of fact, disciplinary action is not an appropriate outcome. Outcomes may include training, coaching, mediation or a full investigation. Some of the evidence you collect in a preliminary enquiry might then be included in the investigation, as part of the context which led to the investigation commencing. If you speak to “witnesses” or a potential respondent in a preliminary enquiry, they should then be formally interviewed as part of the investigation, as their comments in the preliminary enquiry are not taken formally as evidence.

¶3.3 Preliminary investigation with no findings of fact When is a preliminary investigation appropriate? A preliminary investigation is a consideration of circumstances or of allegations, exploring the available information or “evidence” as far as you need to. Based on what you have learned, you will then make “observations” about what appears to have happened in this situation. A preliminary investigation is similar to an investigation in that you will conduct confidential interviews, collect other evidence and prepare a report in which you will analyse that evidence. It differs from an investigation, however, because it does not include findings of fact. A preliminary investigation is an appropriate tool to use when you have allegations of wrongdoing that the organisation wants to determine as far as possible, but where formal findings of fact cannot be made or it is not possible to take disciplinary action against an individual for some reason. For example, a preliminary investigation can be appropriate when: • the allegations are so old and “stale” that insufficient evidence is available to be able to make reliable findings of fact, for example, key witnesses have left the organisation and are uncontactable • there is apparently no specific wrongdoing by an individual, but a situation has arisen which the organisation wants to explore in detail, or • the employee who would be the respondent has left the organisation. Even though no findings of fact will be made, a preliminary investigation can be used to explore the issues at hand. It may identify employee conflict that could be mediated, individual employees who need coaching or training, or systemic issues that need to be addressed, such as the clarification of roles or reporting lines. A preliminary investigation is not appropriate, and a full investigation is advisable, in the following situations: • the organisation anticipates that it will pursue disciplinary action against the respondent if the allegations are proven, or • your workplace policies specify that allegations of this type will be dealt with by a full investigation. Procedural fairness in a preliminary investigation Importantly, because you will not usually put contradictory evidence to the parties (see Chapter 16 for more information about what is contradictory evidence and how to use it in an investigation), unlike a procedurally fair investigation, no findings of fact can be made in a preliminary investigation. It is good practice, however, to ensure that the process is procedurally fair, as far as practicable. Ensure that it is confidential and that you explain the nature of the preliminary investigation to the participants. If there is any chance that the information you collect may be used by the organisation both during and after the preliminary investigation, including in any later investigation, you must tell them this before they participate in the preliminary investigation. Advantages and disadvantages of a preliminary investigation with no findings of fact Advantages • A preliminary investigation is an effective and efficient way for you to determine “the lay of the land” without running a full investigation.

• Some of the allegations may be admitted. • It may also become apparent that a form of dispute resolution is appropriate, such as mediation or a facilitated discussion. • A preliminary investigation can be a swifter and less expensive option than a full investigation. Disadvantages • You cannot take disciplinary action as a result of any comments or assessments you make in a preliminary investigation, except where allegations are admitted by the respondent, because you have not provided the respondent with an opportunity to respond to detailed allegations or contradictory evidence. • If the allegations are sufficiently serious and you decide that they can be investigated, you will then need to commence a full investigation in a procedurally fair way. Can a preliminary investigation turn into a full investigation? In short, yes, subject to some provisos. A preliminary investigation may reveal evidence against a person, and its revelations may become the basis for what the organisation believes the person may have done wrong. In our view, ideally the preliminary investigator should not then be the person to investigate the respondent for those alleged breaches. It may be perceived to be a “witch-hunt” by the relevant internal investigator against one employee, and if that investigator later decides that employee has a “case to answer” in an investigation, how can that HR manager or investigator be seen to have kept an open mind about the employee’s guilt? We recommend that, if practically possible, one person does the preliminary investigation, initially examines the available evidence and formulates any allegations that require investigation. This could be done by a manager in the workplace. After this, the investigator can conduct the full investigation and interview the parties, compile any further evidence, judge all the evidence as a whole and make findings of fact.

¶3.4 Full investigation A full or formal investigation differs from a preliminary investigation in the following ways: • it involves careful planning and scoping • the respondent will be initially informed of the allegations and told that, depending on the possible investigation findings, disciplinary action may result • fully particularised allegations in writing are put to the respondent with adequate time to provide any response • all relevant witnesses are interviewed and other evidence is collected • both parties are provided with an opportunity to comment upon any contradictory evidence before findings of fact are made • findings of fact are made on the balance of probabilities based on the evidence collected, and • a formal investigation report is prepared. When is a full investigation appropriate? As noted above in Chapter 1, full investigation is appropriate in any one or more of the following circumstances: • when your policies require you to do so

• when you need to determine if wrongdoing has occurred and whether there has been a breach of policy • if you anticipate that you may wish to pursue disciplinary action against the employee, particularly where the allegations, if proven, would constitute a serious breach of workplace policies and/or unlawful conduct • you want to have a factual basis upon which to make sound and defensible decisions about managing risk or disciplining an employee, and/or • there are significant reputational or legal issues involved. A full investigation is also appropriate where an early intervention such as mediation, training or counselling has not improved the situation. Advantages and disadvantages of a full investigation Advantages • You will be meeting and interviewing the parties and relevant witnesses, and so will be in a much better position to obtain information which helps you to assess their credibility. • You will be making findings of fact, which means that the organisation can pursue disciplinary or other appropriate remedial action if the allegations are found to be proven. • The organisation can confidently make defensible employment decisions based on a procedurally fair process. • Participants often provide contextual information during interviews, which is of great assistance in identifying systemic improvements, training priorities and culture change initiatives. Disadvantages • Full investigations can be a time-consuming and stressful process for the participants, the investigator, and all the other stakeholders. • Interviewing witnesses can mean that notably more people in the workplace become involved, and maintaining confidentiality may also be more challenging. • It can be difficult for employees, including witnesses, during and after a workplace investigation to work together, so some relationship management, team rebuilding and support for the parties will almost certainly be required after the investigation. • A full investigation is part of the solution, but certainly not “an end in itself”. After any full investigation concludes, you will need to consider what further decisions, training, systemic improvement or culture change will be required. This is explored further in Chapter 21.

¶3.5 Investigation on the papers An investigation on the papers is one in which you make a finding or assessment of the evidence available, based only on written material. Where this method of investigation is used, you may proceed with your fact-finding objective and reach a conclusion based on the evidence received, without meeting with and interviewing the parties, so long as the respondent is provided with a reasonable opportunity to respond to allegations. This process is often selected where costs and/or time are an issue. It is an efficient and effective way to obtain an assessment of the written evidence. When is an investigation on the papers appropriate? Investigation on the papers can be used:

• primarily, where the complaint is about issues which can be proven based only on documentary evidence • where the documentary evidence is the most compelling source of evidence, because of the nature of the allegations • to review whether a prior investigation or particular action taken by the organisation against an employee is defensible, or whether the organisation followed its own policies and procedures, such as in an appeals process • to determine whether certain conduct, the facts of which are not in dispute, constituted a breach of a particular policy • when the parties and key witnesses have either left the organisation or refuse to (or are unable to) participate in the investigation, or • when the only evidence available is in written form. An investigation on the papers is not likely to be appropriate when the facts themselves are in dispute, or where witness evidence is required to know what happened. You will only be able to draw defensible conclusions when the written record is an adequate source of evidence, and there is no need for interviews with witnesses. For example, it may be that the credibility of a participant is not at the heart of a dispute, or the allegations are entirely centred on specific text messages or emails. Depending on the outcome of the investigation on the papers, it may be appropriate to extend the process to include witness evidence and contradictory evidence (that is, a full investigation). Note that even in an investigation on the papers, allegations and contradictory evidence must always be provided to the respondent for response, in order to accord procedural fairness. Proceed with caution! An investigation on the papers will only be appropriate in very limited circumstances. Advantages and disadvantages of investigation on the papers Advantages An investigation on the papers is less costly and time-consuming. This is because you are not required to arrange and conduct interviews or prepare transcripts. Disadvantages • In order to make findings of fact against a respondent, you must put the allegations and contradictory evidence to them for response. • If the parties and the witnesses are not able to be interviewed, you will not have the benefit of inperson accounts of events. These are a rich source of evidence, and often help you judge the credibility and weight of other evidence. • The parties may feel that they have less personal involvement in the process and have not been heard, and therefore may be less likely to accept the findings eventually reached.

Key points • Depending on the specific circumstances of the case, you may decide to undertake a preliminary enquiry, a preliminary investigation with no findings of fact, a full investigation or an investigation on the papers. • Time or cost constraints, issues of credibility about one or more of the participants, whether disciplinary action is a likely result of the investigation and the magnitude of the risk to the employees

and the organisation will influence which of the options is best in the circumstances. • If the process you chose may result in action being taken against a person’s interests, such as disciplinary action, you must ensure that the process is procedurally fair.

Chapter 4: Considerations: Nature of Allegations and Type of Participants Breaches of policy and procedure

¶4.1

Investigating critical incidents

¶4.2

Investigating bullying

¶4.3

Investigating discrimination

¶4.4

Failure to act can amount to bullying

¶4.5

Investigating sexual harassment

¶4.6

Investigating fraud

¶4.7

Duty to report: Concurrent external agency/police investigations ¶4.8 Breach of company values: Harder to judge

¶4.9

Investigating non-employees

¶4.10

Investigating senior employees and executives

¶4.11

Editorial information While every investigation must be procedurally fair and follow the golden rules set out in the next chapter, investigators may face different intellectual and logistical challenges depending on the nature of the subject matter and the characteristics of the participants. This chapter examines some issues you may encounter when investigating bullying, sexual harassment, discrimination, fraud and other types of misconduct, and also when investigating allegations against non-employees, Board members and senior executives.

¶4.1 Breaches of policy and procedure Organisational policies and procedures Most organisations have internal policies and procedures with which employees are required to comply, and these can form part of their contract of employment. These expected standards of behaviour for employees are sometimes grouped together in a human resources policy manual or a code of conduct, which also sets out the process that applies in the event of an alleged breach. When an employee commences employment, these policies and procedures are provided and explained as part of the induction process. Some employers codify all of their behavioural expectations in policies, while others leave much of the expectations unsaid. At a minimum, most employers have policies which address the requirements of state and federal legislation (including bullying and discrimination). Unless the organisation has previously directed the employee not to do something, the organisation will be limited in its ability to discipline the employee or impose any other consequences. The diligent employer will ensure that they retain evidence that their employees have been briefed about, and understand, the employer’s conduct expectations. Employment policies often limit employees’ use of the organisation’s resources and equipment, specific to the nature of the work. For example, policies may state the appropriate use of the organisation’s mobile phones, car fleets, social media and the organisation’s other technology resources. Policies usually set out the minimum standards based on applicable legislation, additional obligations, rights and requirements, and the processes that apply to the organisation’s investigation of alleged breaches of policies. As a consequence, most matters which proceed to investigation within an

organisation involve an express or implied allegation of a breach of policy. This means that, as investigator, you will often be tasked with determining whether there has been a breach of policy. Ensure you are clear about what to investigate and conclude When an employee is accused of breaching one of the organisation’s rules — whether it is set out in an employment policy or procedure, manual, code of conduct, employment contract, enterprise agreement or even a verbal direction — be very clear about what rule the employee is alleged to have breached. Get a copy of the relevant policy or procedure, and check the relevant provision: exactly what did it forbid the employee to do, or require the employee to do? Does the alleged behaviour “match” that description? It is important that you are familiar with the relevant rule. This will ensure that you have a full understanding of the conduct expected or prohibited, and the procedure that applies for investigation and assessment.

¶4.2 Investigating critical incidents Unfortunately, from time to time, organisations can be faced with unexpected and possibly traumatic incidents. These may be events such as the death of a client in a residential facility or at a recreational site; the suicide of a staff member; or a significant workplace accident or near-miss. After such an incident, employees will likely feel shocked, shaken and even devastated. There are possibly serious and long-term consequences for the organisation and the individuals concerned, usually involving outside regulators. Procedural fairness, however, will still apply in an investigation into a critical incident. Given the seriousness of the issues, and the potential consequences for everyone involved, take particular care to consider the following. Prioritise the welfare of staff Staff who were present when the incident occurred, and those who directly worked in the area or with the person affected, may suffer shock in the immediate aftermath. They may also experience ongoing trauma or blame themselves for what has occurred. In some cases, the incident leads to a crisis of confidence for the staff: they may question whether they should continue to work in the field or for the organisation. Work with Human Resources staff and immediate managers — and if needed, seek professional advice — to support the employees’ emotional wellbeing and responses to the event. In some circumstances, staff who were involved or nearby may fear that they have done the wrong thing, or failed to prevent the incident. If it’s apparent from the outset that those staff will not face any disciplinary outcomes as a result of the incident (for example, if it’s clear that there was no breach of policy or procedure), tell them straight away. This will be reassuring for them and will help alleviate some of their anxiety. Also, they will be better able to participate in any investigation of the incident that you conduct, and respond honestly and openly, when they are not concerned about possible consequences for their employment. Understand the organisation’s reporting obligations Depending on the nature of the organisation’s work, whether it is a public institution, and whether there were any occupational health and safety consequences for a staff member, client or visitor, the organisation will probably need to report the incident within a specified timeframe to: • a government body or regulatory authority which is a contract partner or has oversight of service delivery or the industry • a state or federal ombudsman, or industry ombudsman • WorkSafe (or the equivalent WHS/OHS regulator in your state) — note that you may be obliged to report to WorkSafe even if a staff member was not injured • the police, if the matter involves a potential crime, and • other regulators in your industry.

There may be other stakeholders who should be notified, such as contract partners or unions. To ensure that the organisation is fully abreast of these reporting obligations, consider seeking legal advice. Secure all relevant evidence It is essential that in the immediate aftermath of a serious incident that the integrity of all evidence is maintained. If there has been negligence or a breach of policies and procedures, people sometimes try to destroy the files or interfere with their content, so that their conduct is hidden or viewed more favourably. Security camera records, emails and swipe card data are good examples of important evidence that can be easily deleted. It is imperative that you take steps to ensure that this does not occur. Strictly limit access to all relevant records or files, and save copies of digital evidence. You should also secure the site of the incident or a specific piece of machinery. Even cleaning the site can damage or erase important evidence, so ensure that it is cordoned off until you and any outside regulators have completed the site visit and evidence collection. Communicate with employees about the incident and the organisation’s expectations of them It is important that relevant staff members are informed of the incident and what action will follow, including that there will be an immediate investigation or review undertaken. In the absence of information, there is more scope for speculation and gossip and for anxiety to develop. Determine whether the police, coroner or other regulator will be investigating Find out if any external regulator intends to investigate (ideally with help from your lawyer, for serious incidents), and cooperate with their requests. See the further discussion of concurrent investigations by external regulators at page 89. In this next part of Chapter 4, we consider the special issues that arise during investigations of allegations of workplace bullying, discrimination, sexual harassment and fraud.

¶4.3 Investigating bullying As part of your investigation, ensure you address the elements of bullying as defined by the federal, state and territory work health and safety (WHS) laws, as well as regulators’ publications and guidelines, and your own employment policies. In this section, some of the specific issues that often arise in bullying investigations are explored. The definition of bullying The word “bullying” is used to describe a wide range of inappropriate interpersonal behaviours at work. Historically there has been significant variation in the definitions in employment policies, federal legislation and occupational health and safety guidance material issued by state and territory WHS regulators and Safe Work Australia. In some jurisdictions around the world, bullying is less recognised and understood. No specific definition of “bullying” is available in the legislation of some countries (such as New Zealand, USA and the United Kingdom) and repeated, inappropriate actions are more broadly covered under legislation prohibiting “harassment”. Since 1 January 2014, Australia has a definition of bullying in the Fair Work Act 2009 (Cth). When this legislation was first introduced, there were concerns that the Commission would be flooded with bullying applications. In fact, the number of anti-bullying applications and outcomes has remained steady, at around 700 each year, since the introduction of the legislation in 2014. In 2018–19, the Commission finalised 734 applications for orders to stop bullying (with 10% being finalised by a decision). While these figures are lower than expected, Australian research1 indicates that the prevalence of bullying in the workplace is very high: • 9.4% of Australian workers indicated that they had experienced workplace bullying in the previous six months (2014–15) • 37% of Australian workers reported being sworn or yelled at in their workplace

• $22,600 was the median cost for accepted bullying and/or harassment claims in 2013–14. Research has found that bullying causes approximately $693m per year in lost productivity attributable to workplace bullying and job strain2 suggesting that much work remains to be done to address this costly workplace problem. The Fair Work Act 2009 (Cth) definition of workplace bullying is now widely used across Australia, not only under the jurisdiction of the Fair Work Commission, but also adopted as the “best practice” definition in workplace policies and used in bullying guides published by Safe Work Australia and WorkSafe New Zealand. According to this definition, a worker (or group of workers) is bullied at work if, while the worker(s) is at work,3 an individual or group of individuals4 repeatedly behaves unreasonably towards the worker (or group of workers)5 and that behaviour creates a risk to health and safety.6 “Repeated” behaviour has been held to mean, at a minimum, “more than once” but where it is low level or indirect bullying it will usually refer to the persistent nature of the behaviour, and can refer to a range of behaviours over time which constitute a pattern of conduct. Where the behaviours are more serious, a smaller number of behaviours may create a risk to health and safety and constitute bullying.7 “Unreasonable” behaviour is understood to mean behaviour that a reasonable person, having regard for the circumstances, would view as victimising, humiliating, intimidating or threatening.8 “Risk” includes risks to psychological health such as stress and anxiety. Note that other state, territory and federal laws cover conduct understood to be “bullying”, even if they are not described as anti-bullying laws. Bullying is a crime under the Crimes Act 1958 (Vic), and harassment (including “cyber-bullying”) is an offence under the federal Criminal Code Act 1995 (Cth). The Fair Work Act 2009 (Cth) definition excludes from the definition of bullying “reasonable management action carried out in a reasonable manner”. This means that, as investigator, you will need to collect evidence of whether any proven behaviour by management was reasonable in the circumstances, as well as reasonableness in the manner in which it was carried out. This can include considering whether decisions about poor performance, misconduct and directions or work practices are objectively reasonable, even if the complainant believes it to be unreasonable. The significant objective element of such a decision, and the understanding it requires of the job (including such amorphous and idiosyncratic matters as workload), make the assessment of reasonableness an unenviable task. Case example In Ms SB [2014] FWC 2014, the applicant was a team leader who claimed that employees who reported to her had behaved unreasonably. In providing context, the applicant also raised claims about the actions or inactions of her immediate manager and the HR staff, arguing that they should not have given any credence to unfounded allegations made by one of the employees against her the previous year, and that they failed to deal appropriately with false rumours being spread about her. In response, Commissioner Hampton of the Fair Work Commission advised that actions can be characterised as “reasonable management action” rather than bullying if they are objectively reasonable in the circumstances (even if not perfect), lawful, and not irrational, absurd or ridiculous. In terms of determining reasonableness, it was considered useful to ask whether the action was a significant departure from established policies or procedures, whether (if so) the departure was reasonable in the circumstances and whether the action itself was taken in a reasonable manner. The above statements of Commissioner Hampton were further refined in Amie Mac v Bank of Qld [2015] FWC 774, where VP Hatcher held that management action would only be considered unreasonable if it “lacked any evident and intelligible justification”. More recent cases in the FWC have followed the principles established in both cases9. For example, in Ms Susan Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College [2016] FWC 2308, Ms Susan Purcell, a teacher of 20 years at St Aloysius College, claimed she had been bullied at work by Ms Mary Farah, Principal of the college. DP Gostencnik applied the principles of Hatcher VP in Amie Mac to a number of contested management actions, and found that some of Ms Farah’s actions were indeed undertaken without “intelligible justification”, and therefore found that Ms Farah had bullied Ms Purcell. The management actions found to be unreasonable were as follows: • Ms Farah’s decision to appoint the school business manager, Andrew Coates, as the second person to conduct Ms Purcell’s annual performance review, because Mr Coates was not a trained teacher, Ms Purcell had had recent “unpleasant dealings” with him and this was known to Ms Farah, and Mr Coates had not conducted any other teacher’s performance review in the past. • By requiring that Ms Purcell (a teacher of 20 years’ experience) undertake an induction program upon her return from long service leave, Ms Farah treated Ms Purcell differently to other staff members and she could have simply communicated the information to Ms Purcell in short written or oral form upon her return. • Finally, the assignment of a mentor to Ms Purcell upon her return from long service leave (who was a much more junior staff member) appeared to deliberately target Ms Purcell and was likely to humiliate and distress Ms Purcell.

By now, it should go without saying that you should review the relevant provisions of your organisation’s policy. Check its definition of bullying and consider whether that differs at all from the Fair Work Act 2009 (Cth) definition. Then, as you are planning your investigation, including determining the people to approach for interview and the questions you will ask them, you can ensure that you collect evidence that addresses the specific elements of the relevant definition of bullying. Doing this will enable you or the relevant decision-maker in your organisation to consider those behaviours that are proven against those described as bullying in the policy, and to decide if the behaviour constitutes bullying or not. Make sure you include the relevant definition of bullying in your report so it is clear what definition you are using to judge any proven behaviours. Elements to investigate The in-house investigator will usually make findings of fact and also draw conclusions as to whether the proven behaviour constituted bullying and whether it breached policy. Sometimes, to ensure that legal decisions are left to the lawyers, the nature of the proven conduct (bullying or not) and any breach of the law is decided by the organisation’s legal advisor or someone other than the fact-finding investigator. This can be appropriate, given that a finding that the respondent has engaged in bullying is effectively a finding that the respondent has breached the criminal law in some states. If you are considering the proven behaviours against the applicable policy or law, we recommend that you use slightly different language to reflect the nature of that decision-making. A “finding” is made in relation to allegations of fact, as this is a decision of an objective nature. A “comment”, “judgment” or “assessment” is made about whether the proven behaviour appears to have breached policy or law, as these are more subjective judgments and concern the nature of the conduct. This is particularly important if you are not the ultimate decision-maker in relation to any disciplinary outcome, as it will make it clear that you have not made a definitive decision about the ultimate result. External investigators should be particularly careful not to “stand in the shoes of the employer” and determine the future of the respondent’s employment — such as stating the respondent’s employment must be terminated — as such decisions should only be made by the employer. In an investigation into allegations of bullying, clearly identify your objectives along the following lines to ensure that you have addressed the elements of the unlawful behaviour as defined: • make findings of fact as to whether the alleged actions occurred, on the balance of probabilities • make findings of fact as to whether any proven behaviour was repeated, persistent and/or occurred over a period of time (whatever is the applicable standard) • make findings of fact as to whether the proven behaviour was directed to (or impacted on) the complainant, or a group of employees including the complainant • if in issue, whether the behaviour occurred at work • comment on whether the respondent’s proven behaviour was reasonable or unreasonable in the circumstances (which may include a consideration of “reasonable management action”) • comment on whether the conduct appears to have created a risk to the complainant’s health and safety (noting that you may not be able to make a finding as to whether there has been a health or safety impact, without medical evidence), and • comment on (if you are an external investigator) or make a finding about (if you are in-house) whether any proven behaviour is an apparent breach of policy. Particular issues in bullying investigations → What is “reasonable”?

One of the complexities of bullying allegations is the subjective nature of an opinion about what constitutes reasonable and unreasonable behaviour. Sometimes the parties will agree that the alleged behaviour occurred, so the fact-finding part of the investigation process will be relatively straightforward. Often the real area in dispute in bullying cases is whether the alleged behaviour was reasonable in the circumstances. For example, what a complainant has experienced as bullying may in fact be entirely reasonable workplace supervision and monitoring of performance, depending on the reasonableness and consistency of both the application of performance standards and the delivery of the feedback. Conversely, what a manager considers to be “the way we’ve always done things in this organisation” might, in fact, be entirely unacceptable in the modern workplace, and constitute bullying. The workplace culture that enabled the conduct may also need to be addressed. With any allegation of bullying that is brought to your attention, you will need to set aside any presumptions about the reasonableness or otherwise of the alleged conduct, and listen carefully to what the parties tell you about how the behaviour is reasonable or not. → Don’t discount the impact of low level incidents Another particular issue in bullying investigations is that “low level” unreasonable incidents that are repeated over time are not particularly memorable or identifiable events that can easily be recalled by witnesses. Some examples of conduct that might be hard for witnesses to recall are: the absence of the complainant from a regular team meeting a few times (exclusion), a manager’s comment about a report being completed late, where it was unjustifiable in the circumstances (unfair negative feedback) or someone rolling their eyes while the complainant was giving a presentation. At first glance, such incidents might appear minor or trivial, but when they are repeated over time and target a particular person, they can be just as damaging from a mental health perspective as more overt bullying such as abusive language or physical assault. From the investigation perspective, where allegations contain some apparently minor events such as not saying “hello” or closing the lunch room door when the complainant approaches to collect his lunch, it is important to recognise the potential significance of these events from the complainant’s perspective. In particular, it is commonplace for more sensitive employees to feel ostracised and targeted if they perceive there to be a build-up of incidents, however minor, and where they are being treated differently to the people around them. → Repeated behaviour may involve behaviours that occur on the same day Although bullying is commonly understood to involve a number of unreasonable behaviours, which endure over a period of time, and thus cause a risk to health and safety, case law interpreting the Fair Work Act 2009 (Cth) definition of bullying has found that behaviours may be bullying even if they all occur within a very short time. Therefore, when examining whether there has been repeated behaviour that meets the definition of bullying, be aware that the threshold for the amount of repetition may be lower, especially if the behaviour is serious. Case example In O’Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWC 7011 (14 October 2015) the Fair Work Commission found that behaviour that occurred on one evening only, was repeated behaviour within the definition of bullying. In particular, the bullying behaviour occurred over a period of 15 to 20 minutes, when an employee said to another, “I f — ing hate you”, “f — off”, “drop dead”, “f — off and die”, “go kill yourself” and “every time I see you I just want to punch you in the face” whereupon the victim left the bar. After 20 minutes, the victim returned and asked for the reason for the verbal “barrage” and as part of his response the employee told the victim to “f — off out of my face”.

The anti-bullying provisions of the Fair Work Act 2009 (Cth)10 provide that if the Commission is satisfied that a worker has been bullied at work and that there is a risk that the worker will continue to be bullied at work, then the Commission may make any order it considers appropriate to prevent the worker from being bullied at work. The provisions exclude the power to make orders requiring payment, but otherwise give the Commission broad powers to make orders to require the organisation or one or more parties to take particular actions. For example, the Commission has made orders that organisations provide staff with anti-bullying training, that they put in place or update policies for making and handling complaints and that

they follow their existing policies in relation to complaints handling or the resolution of disputes. In making orders, the Commission must consider any dispute resolution procedure available to the worker in the workplace, and any outcome arising out of the dispute resolution procedure. This means that the employer may be able to prevent an order under the Commission anti-bullying provisions by pointing to a workplace investigation that it has already undertaken, consistent with the employer’s dispute resolution procedures. If the employer has run a procedurally fair and thorough workplace investigation into the concerns raised by the employee who has made an application under the anti-bullying provisions, the Commission may be content to adopt its outcomes. However, while the Commission is obliged to take into account any outcomes of a workplace investigation, it is not bound by the investigator’s findings and has the power to make its own orders. Footnotes 1

Safe Work Australia. “Bullying and Harassment in Australian Workplaces: Results from the Australian Workplace Barometer Project 2014/2015” (2016). www.safeworkaustralia.gov.au/system/files/documents/1705/bullying-and-harassment-inaustralian-workplaces-australian-workplace-barometer-results.pdf, accessed July 2020.

2

Dollard, M F & Bailey, T S. Australian Workplace Barometer: Psychosocial safety climate and working conditions in Australia: Australian Federation Press (2014).

3

Regarding the definition of “at work”, see Amie Mac v Bank of Queensland Limited [2015] FWC 774; Sharon Bowker and others v DP World [2014] FWCFB 9227.

4

Note the interpretation of behaviour by a “group of individuals” by Commissioner Roe in Hammon v Metricon Homes Pty Ltd [2015] FWC 5565.

5

Regarding the definition of “worker” under the FWA, see McDonald [2016] FWC 300; Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408; Trevor Yawariki Adamson [2017] FWC 1976 (given there is “a wide approach to the definition of a worker”, a worker may sometimes include the Chairperson or director of a Board).

6

Regarding the definition of “risk to health and safety”, see comments of Commissioner Hampton in Ms SB [2014] FWC 2104.

7

See O’Connell v Wesfarmers Kleenheat Gas Pty Ltd T/A Kleenheat Gas [2015] FWC 7011.

8

See comments of Commissioner Hampton on “unreasonable” behavior in Ms SB [2014] FWC 2104.

9

See also Application by Ms A [2018] FWC 4147.

10

Section 789FF.

¶4.4 Investigating discrimination Just as “bullying” involves some key concepts — repeated, risk, reasonableness — investigations of discrimination allegations have some particular elements you should keep in mind. Discrimination investigations also have some commonly occurring complexities to anticipate and manage. Remember also that the same behaviour may be described as both bullying and sexual harassment. In

fact, in contrast to the lower than expected take up of the anti-bullying jurisdiction of the Fair Work Commission, Equal Opportunity Tribunals and courts around the country are now imposing increasing damages awards for sexual harassing behaviour including in the following two examples. Case examples Collins v Smith (Human Rights) [2015] VCAT 1992 (23 December 2015) in which an owner/manager of a licensed post office branch was ordered by VCAT to pay compensation to a former staff member of over $333,000 in relation to sexually harassing conduct that he had engaged in toward her. Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728, in which the Victorian Supreme Court ordered compensation of $1.36m in damages be paid to a female employed as a labourer for a large construction company who was subjected to repeated abuse, bullying and sexual harassment from Winslow employees and subcontractors.

A victim of behaviours characterised as both bullying and sexual harassment may have a powerful financial motivator to seek damages for their pain and suffering at an EO tribunal rather than approach the Fair Work Commission to stop the behaviour. Discrimination continues to be a major societal challenge with people with protected attributes continuing to suffer discrimination and disadvantage in the workplace. Some examples reported by the Human Rights Commission include:11 • Overall employment rates for people with disabilities remain low, with workforce participation at around 54% compared to 83% for people without a disability.12 • Just over half (52.2%) of Aboriginal and Torres Strait Islander people aged between 15 and 64 years were not employed in 2012–2013, compared with 24.4% of non-Indigenous Australians.13 • One in ten Australians (1.5 million of the nation’s adult population) believe that some races are inferior or superior to others. Around 20% of Australians have experienced race-hate talk; 11% have experienced race-based social exclusion.14 • The Scanlon Foundation’s Australians Today survey, for example, found 54% of respondents with an African background and 59% of Indigenous respondents experienced racial discrimination in the previous 12 months.15 • Research has found that Australian Muslims are more likely than Australians in general to have completed or be undertaking secondary and tertiary studies and yet they are underemployed, underpaid and experiencing discrimination and bias in Australian workplaces.16 • At the Human Rights Commission, 54% of Racial Discrimination Act 1975 (Cth) complaints received in 2015–16 were made by Indigenous Australians and a large number of complaints related to employment. • Of the 500 complaints lodged under the Racial Discrimination Act 1975 (Cth) in 2012–2013, 192 related to incidents of racial hatred. This was a 59% increase over the previous year, with a large proportion of the complaints (41%) involving material on the internet.17 • People born in countries where English is not the main spoken language are three times as likely to experience discrimination in the workplace.18 • Around one in three Australians (35%) aged between 55 and 64 years say they have experienced discrimination because of their age. The most common types of discrimination include being turned down for a job, being ignored or treated rudely and having disparaging jokes made about their age.19 • One in five Australians aged 55 years or over claim that age is a major barrier to finding a job or getting more hours of paid work. They say that employers consider them “too old”.20

• LGBTQI young people report experiencing verbal homophobic abuse (61%), physical homophobic abuse (18%) and other types of homophobia (9%), including cyberbullying, graffiti, social exclusion and humiliation.21 The definition of discrimination Discrimination means treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law. Anti-discrimination legislation operates in all jurisdictions to prohibit discrimination on the grounds of certain identified attributes or characteristics such as: age; race; sex; gender identity or intersex; sexual orientation; disability; industrial or political or religious activity; lawful sexual activity; marital status; pregnancy; breastfeeding; parental status or status as a carer; or personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes. There are some variations between the states and territories, and similar provisions operate under Commonwealth discrimination Acts, which also apply. Ensure that you check the applicable legislation. The federal, state and territory anti-discrimination agencies provide some good resources for employers.22 Discrimination on the basis of an attribute includes discrimination on the basis: • that a person has that attribute or had it at any time, whether or not they had it at the time of the discrimination • of a characteristic that a person with that attribute generally has (for example, a person with a chronic illness is assumed to be too tired to work overtime) • of a characteristic that is generally imputed to a person with that attribute, and/or • that a person is presumed to have that attribute or to have had it at any time. Direct discrimination Discrimination can be direct or indirect. Direct discrimination occurs if a person treats, or proposes to treat, a person with a particular attribute unfavourably because of that attribute. Some examples of direct discrimination: • Susan tells her manager she is caring for an elderly parent and will soon be taking the carer’s leave she is entitled to. Her manager then criticises her commitment to the job and later overlooks her for promotion because she has taken carer’s leave. • David sees an ad in the window of his local café looking for an assistant to work in the cafe. When David asks about it, the café owner tells him they are only looking for a female assistant and that there is no point applying. In order for an allegation of direct discrimination to be substantiated, the evidence must show that the complainant was discriminated against because they had one of the attributes protected by the relevant legislation in your jurisdiction. This means that it must be proven that the respondent treated the complainant less favourably in the same circumstances (or circumstances not materially different) than the respondent treated, or would treat, a person without that attribute. In Susan’s example above, would Susan’s manager have criticised the commitment of another employee who hadn’t taken carer’s leave, or who had taken leave to go on a holiday? Indirect discrimination Indirect discrimination is likely to be less obvious than direct discrimination. Indirect discrimination happens when a practice or policy appears to be fair because it treats everyone the same way but actually disadvantages people from a particular group and is not reasonable. Refer to the legislation applicable in your jurisdiction to determine the elements of indirect discrimination. Here are two examples of indirect discrimination. • To qualify for a new training course leading to promotions, all employees are required to attend

weekend preparation sessions. Naresh, a sole parent, cannot attend the weekend sessions due to his parental responsibilities. He fails to qualify for the training course and therefore doesn’t qualify for the promotional opportunities that follow. Those without similar family responsibilities can attend the training course and are not disadvantaged. • An organisation decides that bonuses will only be paid to those employees who have not taken any sick leave during the year. Isabelle misses out on the bonus because she had severe morning sickness in the early stages of her pregnancy and required hospitalisation for two weeks. Implicit in the requirement to avoid indirect discrimination is the requirement to accommodate reasonable adjustments for disabled persons.23 Case example The Victorian Civil and Administrative Tribunal held in Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056, that the employer of a customer services officer (CSO) discriminated against her. The employer failed to make reasonable adjustments but also then sacked her because she was not able to return to her pre-injury duties. The Tribunal found that the employer failed to accommodate the neck and shoulder injuries sustained by the CSO in the workplace because, in considering the genuine and reasonable requirements of her position under s20 of the Equal Opportunity Act 2010 (Vic), it focused on her pre-injury duties in the call centre, whereas she could have been redeployed as a CSO in the accounts and enquiries area, where reasonable adjustments could have been made to assist her.

What is not illegal discrimination? Actions may be discriminatory but not illegal if they are based on the inherent requirements of the job. For example, a vision-impaired woman applies for a sales job that involves frequent visits to regional locations. The woman is not able to obtain a driver’s license (due to her impairment) and is not hired for the job because she does not have a driver’s license. This may not be illegal discrimination if driving a motor vehicle is necessary to do the job. The organisation did not refuse to employ her because she has a vision impairment; it did not hire her because she did not have a driver’s licence, and the organisation believes that having a driver’s licence is an inherent requirement of this job. However, before rejecting the woman’s application, the organisation should explore whether the regional visits can be made without driving — is public transport a feasible and efficient alternative? Additionally, taking reasonable management action against a person who has a protected attribute is not prima facie an example of discrimination. For example, performance-managing a staff member who happens to be in a wheelchair is not discrimination, so long as the management action is in response to his poor performance, not his disability. Elements to investigate Where a complaint includes an allegation of discrimination, it is appropriate to make findings about whether the respondent took the action, and then whether the respondent took the action because of the complainant’s protected attribute or for some other reason. You can then assess whether there has been a breach of policy. You may wish to include a paragraph in your report that is similar to the one below: “The investigator is aware of the definition of unlawful discrimination in our policy, and has considered the elements of unlawful discrimination. Accordingly, the investigator has made findings of fact, on the balance of probabilities, as to whether the alleged conduct occurred, and also whether the complainant was treated in the manner alleged because of his/her protected attribute or for some other reason. The investigator has then considered whether the respondent’s proven conduct amounted to a breach of policy.” In discrimination investigations, remember to seek evidence which will assist you to decide the respondent’s reason for engaging in the alleged behaviour. Particular issues in investigating discrimination → Organisational “norms” are no defence

Ignorance of the law and turning a blind eye to developments in workplace requirements is no excuse when it comes to defending a claim of discrimination. Statements like this, by a respondent, will probably not suffice: • “We’ve always done it this way and nobody’s ever complained before.” • “It’s the Australian way, get used to it.” • “I’m just trying to get the job done.” • “I’m the manager, and I set the rules.” • “I was only joking — don’t be so sensitive!” The last claim, that the discrimination was “just a joke”, is heard all too often, but it gets short shrift from anti-discrimination tribunals and Fair Work Australia.24 → Cultural differences in the workplace A rich cultural diversity is part of Australia’s national identity and one of our greatest strengths. Most workplaces today employ people from diverse cultural backgrounds, some of whom have specific needs that are required to be taken into account in order to ensure that we encourage tolerance and respect, protect employee health and guard against direct or indirect discrimination. These may include: religious observances (for example, prayer times); family-based obligations (which may conflict with work), specific food preparation and requirements; specific social values (for example, in relation to social behaviours and work ethic); and clothing that may need to be worn at all times. Be mindful about particular cultural sensitivities, noting that eye contact, facial expressions, hand gestures and how people interpret them vary between cultures. As the investigator, don’t be afraid to ask a witness to tell you more about a cultural norm, if you are not familiar with it. Keep an open mind and remember that something that does not matter to you at all (such as how you store your lunch at work) may be very important to someone else for cultural or religious reasons. → Vicarious liability for the acts of its employees Generally, “vicarious liability” means that employers are legally responsible for workers’ conduct in the course of their employment. Employers’ legal responsibility extends to workers’ conduct not only in their regular work environment, but also at work-related events such as seminars, conferences, work functions, Christmas parties, business or field trips. Under current federal and state anti-discrimination legislation, employers are vicariously liable for workers’ breaches of these laws which occur in connection with their employment; unless “all reasonable steps” have been taken to prevent this conduct from occurring.25 Case examples In Robinson v State of Queensland [2017] QSC 165, the plaintiff, Mrs Robinson, was the District Director of Nursing at the Cape York Health Service. She sued the State for Queensland for breach of its duty of care in exposing her to a foreseeable risk of psychiatric injury in her employment. She argued that she had suffered a psychiatric injury as a direct result of a series of vexatious bullying and harassment complaints brought against her by the Nurse Unit Manager, Ms Holmes. She further argued that the State of Queensland was vicariously liable for the District CEO’s failure to respond to or investigate these complaints, as well as other instances of what she alleged was the CEO’s own demeaning and belittling behaviour against her. In the Queensland Supreme Court, Henry J determined that the State of Queensland was vicariously liable for the actions of the CEO, and had therefore breached its duty to the plaintiff. The State of Queensland was ordered to pay damages of $1,468,991. The Court noted that: • Although Ms Holmes submitted eight separate complaints against the plaintiff, not only was the plaintiff not advised of these complaints for months, but despite assurances that she would do so, the CEO failed to investigate them. • During the period in which the complaints were unresolved, the plaintiff repeatedly informed the CEO that these events were having a very negative effect on her mental state. In Sharma v QSR Pty Ltd t/as KFC Punchbowl [2009] NSWADT 166, a 17-year-old employee at a KFC Restaurant brought an action in the NSW Administrative Decisions Tribunal alleging that her supervisor, Mr Matic, who was twice her age, had subjected her to sexual harassment and sex discrimination. The allegations included that Mr Matic had asked her to swim nude with him on

Bondi beach, pulled her along the ground by her leg, purred at her like a cat, showed her pornographic images on his mobile phone and gave her boyfriend pornographic material in her presence. The tribunal agreed that the sexual harassment and discrimination had occurred. It also found that Mr Matic’s employer was vicariously liable for his unlawful conduct, for not taking all reasonable steps to prevent the unlawful behaviours and indeed allowing similar behaviour of Mr Matic to go unchecked. Specifically, while the tribunal did not find that the employer expressly authorised the unlawful conduct, it did find that “Mr Matic was able to go about the workplace openly ‘talking dirty’, showing employees pornography and engaging in unlawful sexual harassment seemingly unchecked.” The Tribunal made the following comments: “While the [employer] provided some training and had a policy there is little evidence that this policy was enforced and consequently it was ineffective in preventing Mr Matic’s conduct. While a grievance procedure is important it is not sufficient for an employer to rely on young employees to make complaints about those who manage them.” The Tribunal ordered that the employer pay the complainant $15,000 in damages.

Footnotes 11

Human Rights Commission. Face the facts, 2014.

12

Australian Human Rights Commission. Submission to the United Nations Committee on the Rights of Persons with Disabilities: Information concerning Australia and the Convention on the Rights of Persons with Disabilities (11 March 2013); Australian Bureau of Statistics, note 6.

13

Department of Prime Minister and Cabinet, Australian Government. Closing the Gap, Prime Minister’s Report 2014.

14

University of Western Sydney. Challenging Racism: The Anti-Racism Research Project, (2008).

15

Scanlon Foundation, Australian Multicultural Foundation, Monash University — Australians Today, (2016). scanlonfoundation.org.au/wp-content/uploads/2016/08/Australians-Today.pdf.

16

International Centre for Muslim and non-Muslim Understanding 2015, University of South Australia, Australian Muslims — A Demographic, Social and Economic Profile of Muslims in Australia, 2015.

17

Australian Human Rights Commission, Annual Report 2012–2013.

18

Victorian Health Promotion Foundation (VicHealth). More than tolerance: Embracing diversity for health: Discrimination affecting migrant and refugee communities in Victoria, its health consequences, community attitudes and solutions, (2007).

19

Australian Human Rights Commission, note 2, footnote 2; Australian Bureau of Statistics. 3222.0-Population Projections, Australia, 2006 to 2101, (September 2008).

20

Australian Bureau of Statistics. 4102.0-Australian Social Trends, Sep 2010: Older People and the Labour Market, (September 2010).

21

Australian Research Centre in Sex, Health and Society, La Trobe University. Writing Themselves in 3: The third national study on the sexual health and wellbeing of same sex attracted and gender questioning young people, (2010).

22

See Australian Human Rights Commission, Information for Employers: Contacts www.humanrights.gov.au/information-employers-contacts#contact; Australian Human Rights Commission, A Guide to Australia’s Anti-discrimination Laws, available at humanrights.gov.au/our-work/employers/quick-guide-australian-discrimination-laws, accessed

July 2020. 23

See, for example, Australian Human Rights Commission. Workers with a Mental Illness: A Practical Guide for Managers, (2010).

24

See, for example, Green v State of Queensland, Brooker and Keating [2017] QCAT 008.

25

In Asnicar v Mondo Consulting Pty Ltd [2004] NSW ADT 143, the NSW Administrative Decisions Tribunal held that what are “reasonable steps” taken to prevent sexual harassment will vary depending on the size of the employer or principal, but some steps must have been taken.

¶4.5 Failure to act can amount to bullying In addition to vicarious liability for the actions of individuals who breach an organisation’s policies, recent cases also illustrate that the organisation’s inaction (or that of an HR department) can itself amount to “unreasonable management action” and therefore bullying, in and of itself. Case examples In Ms Anne Pilbrow [2020] FWC 2458, the applicant alleged that her direct manager had subjected her to bullying and that HR staff had failed to respond adequately to her complaints. It was held that while her manager’s communication style was not ideal and performance concerns were “ventilated in a suboptimal way”, the manager’s conduct was found to be reasonable management action and did not amount to bullying. The Commissioner was critical of the HR department, however, noting that the conduct of HR staff had “potentially reached the required level of unreasonableness”. Their failures included: • a refusal to assign light duties to her consistent with her medical requirements • a lack of consultation about allocation of duties at an alternative work location, including being given 30 minutes notice to attend the new workplace • poor responses to her concerns about changes to her work location and duties, and • limited training opportunities. It was only the fact that a bullying order can only be made against “an individual or group of individuals”, not an organisation’s HR department, that saved the HR department in this case. In Watts v Ramsay Health Care [2018] FWC 1455, the applicant had brought to the attention of her direct manager and the HR manager allegations of bullying and harassment against several of her fellow workers. Noting that the applicant had raised these concerns with her managers, including in the context of investigation of her own performance or behaviour, the respondent determined not to commence any kind of enquiry or investigation into the applicant’s allegations, citing a lack of specific information and/or evidence about the allegations for their decision. In granting Ms Watts’ application, the Fair Work Commission accepted that her managers had behaved “unreasonably” towards her and that their decision not to investigate her bullying allegations was not “reasonable management action”. The Commission determined that the applicant had been understandably reticent to name the offenders but had nonetheless provided her managers with sufficient information, and that those managers had “imposed their own requirements” on how Ms Watts must complain to them about the alleged bullying before they would commence an investigation.

¶4.6 Investigating sexual harassment We now explore the specific issues that arise in investigations into allegations of sexual harassment. The definition of sexual harassment All organisations in Australia should have a policy which prohibits sexual harassment. When conducting an investigation into allegations of sexual harassment, begin with the relevant definition, as set out in your organisation’s policies or the relevant state and federal legislation. By way of example, the Sex Discrimination Act 1984 (Cth) aims to eliminate so far as possible discrimination involving sexual

harassment in the workplace. That Act defines sexual harassment as: “A person sexually harasses another person (the person harassed) if: a. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or b. engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.” Sexual harassment in the workplace can occur between people of the same or different sex. Do not assume that a person cannot be sexually harassed, or cannot sexually harass, because they are young, married, gay, of a particular religion, the same sex as the other party, more junior than their target, or have any other personal attribute. Sexual harassment can include, but is not limited to: • uninvited touching, massaging, kissing or embracing • leering or staring at parts of the body • smutty or sexually explicit jokes or discussions • offering favours or making threats in exchange for sexual favours • sexual gestures, sex-based taunts, teasing or name calling • displaying of sexually explicit objects or pictures, and • asking personal questions about a person’s personal relationships or private life. Sexual harassment includes written communication of a sexually explicit nature such as letters, cards, emails, the display of sexually explicit images on a computer screen or other electronic devices and forwarding such material to others. The Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) also encompasses sexual harassment between people employed by different organisations who do not have a workplace in common. As a result of the Act, it is unlawful for a person to sexually harass another person in the course of seeking, or receiving, goods, services or facilities from the harassed person. This provides protection to service providers against sexual harassment by customers and clients. A power imbalance between the parties is a common feature of sexual harassment occurring in the workplace, where an employee uses the power imbalance to prey upon a more junior colleague. Sexual harassment also commonly occurs in the context of employees’ attendance at work-related conferences and events, attendance at another workplace for the purpose of carrying out work and at official work functions, such as Christmas parties. Alcohol is another common factor in complaints of sexual harassment. Sexual harassment is often alleged where work-related social events “get out of hand”, or where a previously consensual relationship between colleagues has broken down or is regretted by one of the parties. In such cases, the investigator must carefully collect evidence to demonstrate whether the behaviour was unwelcome or not and, if it was previously welcome, at what point it became unwelcome. Another issue which has been raised in several recent cases is whether the alleged sexual harassment occurred in the “workplace” or not, with that definition being extended to include activities that take place after hours and away from the usual workplace. Case example In Vergara v Ewen [2015] FCAFC 100, the parties had walked from their office, where the respondent had been sexually harassing the complainant contrary to s 28 of the Sex Discrimination Act 1984 (Cth), to a hotel across the road. There, the complainant had sought to deal with the incident of harassment by way of moving to a safer, public location, whereas the respondent had continued to ask the respondent for sexual favours. The question was whether the respondent’s conduct at the hotel constituted a further

breach of the Act. The majority of the Full Court of the Federal Court held that it had been open to the primary judge to find that the function being performed by both parties at the hotel was to deal with what had commenced at the workplace, and that they were therefore carrying out functions “in connection with” being workplace participants, within the definition of “workplace” in the Act. The respondent’s appeal against the order to pay $476,000 in damages was therefore dismissed.

Aside from jurisdictional issues relating to whether the behaviour occurred at work or not, the federal Sex Discrimination Act 1984 (Cth) contains three essential elements in the legal test for workplace sexual harassment: 1. The behaviour must be unwelcome. This is determined on a subjective basis. How the conduct in question was perceived and experienced by the complainant is important rather than the intention of the alleged harasser. It is irrelevant that the behaviour may not have been unwelcome to others or has been an accepted feature of the work environment in the past.26 2. The behaviour or conduct must be of a sexual nature. 3. The behaviour or conduct must be such that a reasonable person would anticipate the possibility that the person who was allegedly harassed would be offended, humiliated, or intimidated in the circumstances. This is determined on an objective basis.27 The question to ask is whether a reasonable person would have anticipated that the behaviour would have such an effect. In some investigations of sexual harassment, the complainant will allege that sexual harassment took place and the respondent will deny that this behaviour occurred. In other cases, the respondent will agree that the behaviour took place, but deny that it was unwelcomed by the complainant. It is important to understand that: • Behaviour that is consensual, welcome and reciprocated, based on mutual attraction and respect is not sexual harassment. • Even if there was no intention to sexually harass a person, it could still amount to sexual harassment, because the person’s motive for engaging in the behaviour is irrelevant. “It was only a joke” is not a valid excuse. • Sexual harassment can be a single incident — unlike bullying, it does not have to be repeated or a series of incidents. • If sexually explicit discussions are overheard by others, or pornography or sexually explicit material are displayed and observed by others, then even if the discussions or sexually explicit material were not directed at the other colleagues, those colleagues could be subjected to sexual harassment. • Behaviour that may be acceptable in private life may be inappropriate in the workplace or in any place connected to work, such as a work-related function. • Allegations of sexual harassment will not necessarily fail because the person subjected to the behaviour did not directly inform the harasser or others that it was unwelcome (at the time or in advance). This is especially the case where the person harassed is more junior than the alleged harasser or where they are dependent on the alleged harasser for continued employment, pay and conditions, advancement, performance reviews or other key aspects of employment. Sexual harassment remains a major challenge in the workplace. In the last five years, 39% of women and 26% of men have experienced sexual harassment at work. The harasser was most likely to be a coworker (61%) and the most common forms of sexual harassment included offensive, sexually suggestive comments/jokes, intrusive questions about private life or physical appearance and inappropriate staring or leering.28 A KPMG report released in October 2016 (“She’s price(d)less”29) noted that sex discrimination is the biggest factor contributing to the gender pay gap, which has remained at around 16.2% for over 20 years. Elements to investigate

In an investigation into allegations of sexual harassment, you should be clear as to the scope of your investigation. Clarify your objectives along the following lines to ensure that you have addressed the elements of the unlawful behaviour as defined: • make findings of fact as to whether, on the balance of probabilities, the alleged actions occurred • make findings of fact as to whether any proven behaviour was unwelcome or not • make a finding about whether the conduct occurred at work or not (if in issue) • comment on whether or not a reasonable person would be offended, intimidated or humiliated in relation to that proven behaviour • make findings as to whether any proven behaviour was of a sexual nature or not, and • assess whether any proven behaviour is a breach of policy or not. The #MeToo movement, and its implications for misconduct investigations How to prevent and address sexual harassment in the workplace is not a new question, but it has been in the spotlight in the last few years with the rise of the #MeToo movement. #MeToo, a metadata tag used on the social media network Twitter, gained prominence in 2017 when accusations of sexual assault and harassment were made against film executive Harvey Weinstein. It soon became evident that Weinstein’s behaviour had been long known to many within the industry, but had been tolerated — and even actively facilitated by his colleagues — because of his position as joint founder and chief executive of The Weinstein Company, and his significant power and influence within the film industry. As the movement grew, other employees and actresses began to speak out, make complaints and take legal action against Weinstein and those who were complicit in allowing and facilitating Weinstein’s conduct. As over 100 women came forward to accuse Weinstein of sexual harassment, assault or rape, it became evident that his behaviour had been hidden from public scrutiny by the use of non-disclosure agreements in which complainants settled their claims against Weinstein and the company and agreed not to disclose their experiences. The Weinstein Company dismissed Weinstein in October 2017, and it declared bankruptcy in 2018. In early 2020, Weinstein was sentenced to 23 years in prison for rape. Demands for sexual favours in exchange for career opportunities or with a threat of retribution if the victim refuses to comply, such as in Harvey Weinstein’s case, are one of the less common sorts of sexual harassment. Far more common is sexualised behaviour that demeans people because of gender or departure from traditional gender norms. This sort of sexual harassment — put-downs, crude remarks and explicit “jokes” — has humiliation at its core and is more common in workplaces that have been traditionally male dominated. One of the lessons of the Weinstein case is that complainants will feel more comfortable to speak out and name their harasser if they see action being taken against sexual harassment in their workplace, industry and society more broadly. Anecdotally, complainants in Australian workplaces have reported that they feel more comfortable speaking up about being sexually harassed because they have seen other women raise concerns and the employer handled those complaints fairly. Many traditional workplace complaints-handling systems put the responsibility solely on the person who has been harassed to call out the behaviour and refused to address sexual harassment allegations unless the victim personally complained (in breach of occupational health and safety laws). This has often led to behaviour not being reported, or not reported until women feel safe enough to take action, usually after they have resigned from that employment. In addition, employers are becoming aware that the confidentiality that they apply to the process, primarily to manage their own corporate risks, can end up protecting harassers from any negative impacts of their proven wrongdoing. There have been numerous examples of women not able to speak out about sexually harassing behaviour in the workplace because of non-disclosure agreements, directions to keep matters confidential or fear of defamation allegations.

Investigators of sexual harassment allegations can note the following lessons from the #Metoo movement: • It is incredibly difficult for people to make complaints against very senior employees, particularly where the workplace culture is toxic and enables the abuser. • Sexually harassing behaviour that may have been tolerated in the past is increasingly being called out by employees. • There is strength in numbers — people feel more comfortable to call out harassment when others do too. • Prompt attention to sexual harassment complaints, and visible outcomes including the employer’s commitment to better measures of prevention in future, are important elements in building an ethical workplace culture. • Non-disclosure agreements and confidentiality considerations have sometimes allowed harassers to continue the behaviour and to move on to new roles (and new victims) without the behaviour ever being disclosed. • The employer needs to apply a nuanced approach and delicate decision-making to ensure that the investigation process remains procedurally fair to the respondent, while being conducted in a way that does not further disempower the complainant after the investigation, or other potential complainants in future. • Unfair and gendered beliefs about sexual harassment complainants persist, meaning that people who have been harassed may wish to remain anonymous or be reluctant to have complaints investigated formally. Particular issues in sexual harassment investigations → Use sensitivity and non-blaming language When an employee makes a claim of sexual harassment, it is important to remain aware that they are likely to be experiencing high levels of stress, vulnerability, anger, and possibly even shame or guilt (even though sexual harassment is never the victim’s fault). It is therefore critical that you treat complaints seriously and in a timely fashion, and interview the complainant with extreme care. Use neutral language, and take care not to make value judgments or imply that the complainant “asked for it” when assessing whether the conduct appears to have been “unwelcome” or not. Awareness of cultural differences should also be kept in mind at this time. It may be advisable to offer the complainant access to support and counselling and to separate the parties in the workplace, where possible. In addition, it is of course critical to maintain strict confidentiality during the investigation for the sake of both parties. Recent high-profile cases in the media have shown us that allegations of this nature can lead to victimisation of the complainant and serious career damage for the respondent. → Power imbalance A case of sexual harassment can be particularly harrowing for an employee if the unwelcome behaviour is demonstrated by their manager or someone else in a senior role, as was evident in relation to Harvey Weinstein. In such circumstances, it is commonplace for the employee to attempt to ignore or down-play the behaviours in the first instance. The subject of sexual harassment can sometimes appear to go along with inappropriate behaviours by the respondent for a period of time (not actively participate in sexual conduct, but not object explicitly either), due to feelings of powerlessness, concern about job security and being ostracised, fear that they won’t be believed, and fear that the organisation will rally around the respondent. These issues should be kept in mind in assessing any reluctance or delay in coming forward, and possibly also some level of apparent acquiescence by the complainant in the early stages. → When workplace relationships go wrong

It is worth remembering that there may be an increased risk of a sexual harassment claim (and associated claims) when a consensual romantic relationship ends between colleagues in a workplace. This is particularly likely if only one party chose the break-up and if the parties continue to work in close proximity. The emotional devastation, the impact on concentration and performance and the lack of acceptance that can follow a relationship breakdown can be a source of real difficulty not just for the parties, but for their colleagues and the organisation itself. After the relationship has ended, nonthreatening “pursuit behaviour” — in which one party tries to win the other one back — that may be acceptable in the outside world may constitute sexual harassment in the workplace. In such circumstances, the investigator will need to determine when the consensual romantic relationship ended, and when the conduct of a sexual nature (or harassment, bullying, etc) began, because the complainant was no longer consenting to it. The investigator, in cases like this, can learn far more than they would have liked about the parties’ personal lives, including the state of their marriages. During the investigation: • enable the parties to keep some distance between them, if possible • remain aware of double standards and recognise that, whereas men often experience acceptance and even congratulations when they have a workplace relationship, women may experience threats to their professional reputation and be given negative labels, and • ensure that both parties are offered support and counselling. Footnotes 26

Leslie v Graham [2002] FCA 32 at [70] per Branson J.

27

Poniatowska v Hickinbotham [2009] FCA 680, 289.

28

Australian Human Rights Commission, Everyone’s Business: Fourth national survey on sexual harassment in Australian Workplaces, AHRC 2018.

29

KPMG. “She’s Price(d)less — The economics of the gender pay gap”, Update Report prepared for Diversity Council Australia (DCA) and the Workplace Gender Equality Agency (WGEA), October 2016.

¶4.7 Investigating fraud When fraud occurs, the organisation is the direct “victim”. As a result, there may be no specific individual complainant, but rather a number of ways (often indirect and sometimes unusual) in which you have become aware of the possible fraud. Commonly, fraud is discovered when an employee goes on leave, and their temporary replacement discovers an anomaly. Definition of fraud The Australian Standard for Fraud and Corruption Control30 defines “fraud” to be: “Dishonest activity causing actual or potential financial loss to any person or entity including theft of moneys or other property by employees or persons external to the entity and where deception is used at the time, immediately before or immediately following the activity. This also includes the deliberate falsification, concealment, destruction or use of falsified documentation used or intended for use for a normal business purpose or the improper use of information or position for personal financial benefit.” That standard is undergoing review during 2020. Under the draft revised standards that were released for public comment,31 notes are provided to the definition of “fraud” which state:

“Property in this context also includes intellectual property and other intangibles such as information . .. Fraud also includes the deliberate falsification, concealment, destruction or use of falsified documentation used or intended for use for a normal business purpose or the improper use of information or position for personal financial benefit . . . While conduct must be dishonest for it to meet the definition of ‘fraud’ the conduct need not necessarily represent a breach of the criminal law . . . The concept of fraud within the meaning of this Standard can involve fraudulent conduct by internal or external parties targeting the organization or fraudulent or corrupt conduct by the organization itself targeting external parties.” One of the most common means of fraud is misuse of the corporate credit card. Organisations provide corporate credit cards to employees for a range of reasons. Typically, credit cards are provided for the employee’s convenience when undertaking work-related travel, purchasing goods and services under a particular value, and entertaining clients. Unfortunately, the possession of a corporate credit card can prove all too tempting for some staff, particularly if the threat of detection is considered to be low. While the potential misuses of corporate credit cards are limited only by employees’ imaginations, in our experience the following are some of the more common: • deliberately over-quoting travel expenses in order to withdraw more money than they were entitled to • paying school fees and purchasing school uniforms • paying for fuel, car servicing or purchasing a family car • purchasing personal clothing or gifts • paying off a personal credit card or home mortgage, and • unauthorised withdrawal of money in order to gamble, purchase drugs or pay for prostitution services. Other types of fraud by individual employees — not using credit cards — include:32 • theft of plant, equipment, inventory or cash • creating a false invoice which claims payment for goods or services not delivered, or stating an exaggerated value • accounts receivable fraud — misappropriation of income paid to the employer by a debtor, and • insider trading — buying or selling shares on the basis of information that the employer has by reason of their position, but which is not generally known to investors. Fraud cases cost Australian industry more than $300 million in 2015.33 Almost half (47%) of global companies surveyed by PWC experienced fraud in the period 2018–2019.34 Elements to investigate The investigator of internal fraud needs to ascertain what transaction has occurred, who carried out the transaction, and what policy, procedure, delegations or other rules are relevant. Of course, even if the fact of the expenditure is proven, the employer will need to determine whether the employee knew in advance that this transaction was not authorised. Fraud is often perpetuated over time in environments with ineffective or non-existent controls and monitoring. If a transaction was a borderline breach of the relevant policy and procedure, the employer will need to assess whether the communication of the relevant rule was sufficient. A glossy poster or a generalised message in annual training may not be specific, clear and recent enough. Identify exactly when and how the employee was informed of the limitations on their expenditure or other

relevant rule. Some fraud is very obvious, for example, if the expenditure is completely unrelated to work, or the benefit was conferred on someone unrelated to the organisation. However, do not take for granted that the employee “should have known” that they could not take their team out for drinks, buy the latest mobile phone or fly business class. Particular issues in fraud investigations Investigating fraud offences requires particular knowledge and skills. If the organisation is able to handle the matter internally (and that an anti-corruption body or the police do not prevent it), ensure that the proposed investigator (internal or external) is sufficiently skilled and experienced to investigate this type of misconduct. Ideally, the investigator should have a background in fraud investigation. It is also worth considering using an external investigator if the person being investigated is very senior in the organisation, given the higher risks.

Before starting an in-house fraud investigation, you should consider the following issues. → Cancel the credit card or block the bank account access If there is a risk of any further fraud, and no issues about revealing the fact that an investigation is underway, immediately cancel the credit card (or put it “on hold”) or suspend the employee’s access to the relevant bank account, to minimise risk and loss. As “financial manager” of the account, the employer is entitled to contact the bank to do this. → Obtain, secure and retain the employer’s own financial records Ensure that all documentation relating to the use of the credit card or bank account are obtained, as well as securing all internal records that may be relevant, such as copies of invoices. Gather all current and previous credit card and bank statements. It is preferable to have a complete record for a specific period — for example, for the last three years — than to rely on specific excerpts or some selected monthly statements from the bank. In some cases, employees will have “tested the water” and made a small unauthorised purchase to see if it is detected by the organisation. This more often occurs in larger organisations where the employee assumes that bank statement and credit card surveillance is minimal. Further, if the employee later denies that they made the fraudulent purchase and argues that the misuse of the credit card was by someone else (that is, unauthorised use by a third party), you will be able to review patterns of use of the card, locations of purchase, and other relevant factors. It is also possible at this stage, before the accused employee is aware of the investigation, to identify and review the records the organisation holds about approval of relevant expenses. This sometimes includes prior approvals for specific expenses, “after the fact” approval of monthly credit card purchases, and importantly, receipts for the purchases which are considered to be fraudulent. → Obtain additional transaction details from the bank If needed, credit card providers and banks are experienced and usually willing to provide the employer (as the “financial manager” of the account) access to key information, without notifying the card holder (the employee under investigation) that this information is being obtained. You may be able to obtain a detailed “back-end” card transaction report for the account. Depending on their internal privacy processes and fraud control policies, the credit card provider may release to you information about whether a PIN was used during the transaction, and where and when the transaction took place. This will assist you to assess any claim by the employee that they had lost their card, or the card was stolen or skimmed. → Secure computer-based records If data is held on computers to which the employee has access, and which are not remotely backed-up, take immediate steps to preserve key evidence including on the local drives of computers, laptops, tablets and phones. Depending on the organisation’s computer system, this may involve immediately “seizing” the accused person’s computer and removing their ability to access the computer system, ideally without their knowledge and often over the weekend. Alternatively, where full backups are made of all computer records, this can be done behind-the-scenes. Such steps require liaison with IT professionals (in-house or external) to preserve the relevant databases, emails and other digital information. It may also be necessary to engage an external expert who can assist with forensic examination of IT and financial and phone records. (See Chapter 15 regarding digital evidence.) → Provide support for your employee Sometimes employees engage in fraud out of desperation, such as a personal crisis. Gambling problems and financial distress are common reasons for theft and fraud in the workplace. Remember that no matter how serious the allegation or how convincing the early evidence is, the employee must be assumed to be innocent and also offered support, while the matter is being investigated or managed. Footnotes

Footnotes 30

Standards Australia. AS 8001–2008, Fraud and Corruption Control (2008), clause 1.7.8.

31

Standards Australia Public Comment, available at sapc.standards.org.au/sapc/public/listOpenCommentingPublication.action, accessed 5 July 2020.

32

Standards Australia. AS 8001–2008, Fraud and Corruption Control (2008), p 7–8.

33

KPMG. Fraud Barometer (2015), accessed at home.kpmg.com/au/en/home/insights/2016/06/fraud-barometer-october-2015-march2016.html.

34

PWC. Global Economic Crime and Fraud Survey (2020), available at www.pwc.com/gx/en/services/advisory/forensics/economic-crime-survey.html, accessed July 2020.

¶4.8 Duty to report: Concurrent external agency/police investigations Depending on the seriousness of the alleged wrongdoing and the nature of the organisation, decisions may need to be made about whether the alleged misconduct should be reported to the police, the workplace health and safety regulator, and/or the appropriate anti-corruption body, and if so, before or after handling the matter internally by way of a workplace investigation. You may have no choice in the matter, depending on the legislation that applies to your organisation in your state; alternatively, you may have the ability to discuss the issue with the relevant agency before making a decision. For example, in some states it is mandatory to report all suspected breaches of criminal laws to the police, not only for employers involved in the care of children and other vulnerable people. State and federal agencies must report allegations of breach of anti-corruption laws to external regulators in certain circumstances. The laws in this area are very strict and penalties are high for breaches, because of the importance that is appropriately placed on the primacy of any investigation by external bodies, and the integrity of public agencies. In fraud matters, carefully review your own whistleblower and anti-corruption policies, as well as the website and legislation of the relevant anti-corruption agency if the organisation is covered by it (see the discussion of whistleblower protection laws in Chapter 1). If you are in any doubt about your organisation’s obligations in this area, call the agency or get legal advice. Even if the organisation has the all-clear to conduct its own investigation, your own investigation into an employee allegedly behaving badly is not always the only investigation afoot at any time. It may be that, for example, allegations of sexual harassment are also the subject of a police investigation of a possible sexual assault. Similarly, allegations of workplace fraud may also be the subject of a criminal investigation. State WHS authorities as well as state and federal anti-discrimination commissions may also be conducting simultaneous investigations. Where there are concurrent investigations taking place, see the steps suggested in Chapter 1 before proceeding.

¶4.9 Breach of company values: Harder to judge Many organisations have a set of values or ethical principles — in addition to policies and procedures — which are intended to guide everyone’s conduct. Values are inherently more general in nature, and are usually aspirational, referring to positive values such as honesty, service, respect and diversity. By way of example, if Acme Pty Ltd’s values are “integrity, delighting customers, diversity and independence”, how would you judge whether a person’s actions showed the expected “integrity” at work? Could an employee

be disciplined for not “delighting customers”? Probably not, in a disciplinary sense, without a very subjective judgment by the investigator. Instead, Acme Pty Ltd probably has rules and performance standards that are specific, enforceable and more easily measurable, against which the same behaviours might be judged.

¶4.10 Investigating non-employees People who are not employees but who engage with the employer’s business may become the subject of an investigation, such as the Chairperson or a Board member (who may be employees, contractors or volunteers), an elected mayor or councillor, contractors, suppliers, customers, members of the organisation or volunteers. While these people are not able to be subjected to disciplinary action as employees, the organisation sometimes has legitimate reasons to investigate the actions of nonemployees, such as: • to determine the facts of an occupational health and safety incident — given that state occupational health and safety legislation covers visitors to work sites, contractors and even members of the public, as well as “workers” which is broadly defined — in order to meet its obligations to understand what led to the incident, to address any existing risks, and to provide a safe workplace • to ensure that contractual obligations have been met by the organisation’s contractors or suppliers, including standards of service provided and compliance with regulations • to test concerns raised by employees about the conduct of outsiders which impacted on their working experience • to explore whether the expectations of shareholders, business partners and other stakeholders or regulators are being met, such as checking the organisation’s supply chain for human rights compliance, or • to determine whether a member of the organisation (such as a sports club or a political party) has breached its rules, which might justify their censure or expulsion from membership. Before commencing an investigation into the conduct of non-employees, the organisation must first locate the relevant conduct rules that apply to the individual being investigated. Do not assume that the employment policies will apply to the accused individual. The conduct rules applying to non-employees might be contained in, for example: • the contract between a contractor, as an individual or the company, and the organisation — this might contain a clause such as “All individuals performing services for Yellow Duck Pty Ltd on behalf of the contractor company will comply with all laws and regulations applicable to the work site” or “The contractor will ensure that all of its personnel will comply with the policies and procedures of Yellow Duck Pty Ltd while performing services” • the Code of Conduct that applies to the Board of directors or elected councillors35 • any agreement with volunteers, or directions given to them in training or induction, or • rules or directions of external agencies, such as an anti-corruption agency or environmental regulator. The non-employee might push back on the legitimacy of the investigation, as sometimes the enforceability of these rules and guidelines is not clear-cut. Sub-contractor arrangements and joint venture structures, where there is a separation between the organisation with ultimate legal responsibility (such as to provide a safe workplace) and the employer of the individual respondent, can complicate matters. Political or commercial influence may need to be applied to encourage participation. At the same time, the organisation may be obliged to report certain allegations of misconduct to an external regulatory agency, such as an anti-corruption commission or an agency responsible for relevant professional standards.

The next case study describes a complex situation relating to the decision by a local council to investigate a mayor’s behaviour, and the mayor subsequently contesting the legality of aspects of that investigation. Case study: Robert Doyle, former Lord Mayor of the City of Melbourne The high profile case of sexual harassment complaints made by several women against the (then) Lord Mayor of the City of Melbourne, Robert Doyle, highlights the complexities that can arise when allegations are made against an elected official or a person who is not an employee of the organisation. This matter tested the authority upon which an investigation can be undertaken, and the extent to which parties and participants who are not employees can be directed to participate in an investigation process.36 In late 2017, two of Mr Doyle’s fellow Councillors alleged that he had behaved towards them in a sexually inappropriate manner, in the course of their interactions with him on Council. Ben Rimmer, the Council CEO, through the Council’s solicitors, then commissioned an independent investigation into the allegations. According to the report Mr Rimmer made to Council,37 he did so on the basis that he had an obligation to provide a safe workplace to Councillors and staff of the Council and before doing so, he had established that “there were no practical options available to [him] under relevant legislation that would achieve and appropriately preserve workplace safety”. Pertinent to his determination of how to proceed was his acceptance that as an elected official, Mr Doyle was accountable to the public and in the usual course of events, it would not be appropriate for him, as a CEO, to attempt to manage or control Mr Doyle’s (or any other Councillor’s) behaviour or commission an investigation into it. He determined, however, that his duties under occupational health and safety legislation may have conflicted with this general position; hence, the investigation should be undertaken. Mr Doyle elected to participate in the investigation and so was interviewed and made written submissions to the investigators, in which he strongly denied the allegations. He then resigned from his elected position on the Council prior to the investigation report being delivered to Council. Notwithstanding this, the investigation continued and the investigators found that Mr Doyle had engaged in inappropriate sexual conduct in relation to three incidents, in contexts in which he had consumed significant amounts of alcohol. During the course of the investigation of the two Councillors’ complaints, a further complainant Kharla Williams came forward to allege to the investigators that, during the period that he was Lord Mayor, Mr Doyle had touched her inappropriately at a black tie dinner hosted by Melbourne Health. Mr Doyle at this time was the honorary Chair of the Board of Melbourne Health. Mr Rimmer then elected to commission a further investigation into these allegations by the same investigators, seemingly on the basis that Mr Doyle’s alleged conduct was also in his capacity as Lord Mayor, and thus, impacted on its reputation and/or his OHS obligations. The Victorian Department of Health and Human Services also commissioned a separate investigation into the allegations arising from the Melbourne Health dinner. Mr Doyle did not participate in either of these investigations into Ms Williams’ allegations, on the basis of ill health. Given that he was an elected official of the Council and held an honorary position on the Board, he was not an employee of either organisation, and so it was not possible for either organisation to direct him to attend an Independent Medical Examination to determine whether he did have capacity to participate in the investigation. They were also not able to require him to engage any further with the process. The investigation conducted on behalf of the Department of Health and Human Services was finalised but its investigator said that he could not reach a conclusion because Mr Doyle had been too unwell to participate (see Chapter 7 in relation to the participant’s capacity to participate). In that report, the investigator noted, however, that he did not doubt the veracity of Ms Williams’ allegations.38 The Council’s investigators had initially decided to suspend the investigation, on the basis that it would not be appropriate for it to continue without Mr Doyle’s participation; however, it appears that a report, which has not been released, was completed by the investigators.39 Mr Doyle successfully sought an interim injunction in the Victorian Supreme Court in December 2018 to prevent the Council of the City of Melbourne from continuing or publishing the investigation into Ms Williams’ allegations. He argued that the Council did not have any basis to conduct this investigation, as he was an elected official and not an employee, and further, that he was not acting as Council’s representative at the dinner where the alleged conduct occurred.40 Shortly before the case went to a substantive hearing, Mr Doyle discontinued his application, and as a result there was no decision issued. The question of whether the Council did have any basis for conducting this investigation into Ms Williams’ allegations remains unresolved.

Take the opportunity now to review the policy and governance frameworks of your organisation, and the standard contractor arrangements. If a non-employee posed a risk to your organisation, would you have a sound avenue for proceeding with an investigation? It is unlikely that the organisation has the legal capacity to compel non-employees to participate (including former employees, as discussed in Chapter 14), but legal duties may compel the organisation to take some fact-finding action in any case. For example, under workplace health and safety laws, the organisation in control of the work site must take reasonable steps to ensure that it is free of risks to health and safety. It may be necessary for an investigation to at least commence, and be conducted to the fullest extent practicable, to position the organisation to manage the incident’s fall-out and to minimise risks of any inappropriate behaviour occurring in the future. The investigation’s findings may not lead to discipline of an employee, but it may enable the introduction of new protocols, risk management, training, governance or personnel changes. Footnotes 35

See, for example, aicd.companydirectors.com.au/resources/not-for-profit-resources/not-for-

profit-governance-principles/principle-9-conduct-and-compliance/ for company directors or www.olg.nsw.gov.au/councils/governance/model-code-of-conduct/ for local councillors, accessed July 2020. 36

See Adriana Orifici, webinar for the Australian Association of Workplace Investigators, “Learning from #metoo — Legal Issues and Lessons for Workplace Investigators”, accessed 15 May 2020.

37

www.melbourne.vic.gov.au/about-council/committees-meetings/meetingarchive/MeetingAgendaItemAttachments/808/14497/MAR18%20CCL%20SPECIAL%20AGENDA%20ITEM%203.1 accessed July 2020.

38

www.afr.com/politics/no-outcome-melbourne-health-doyle-complainant-wonders-why-shebothered-20180427-h0zbp8, accessed July 2020.

39

www.abc.net.au/news/2019-02-15/former-melbourne-lord-mayor-robert-doyle-withdrawslegal-action/10818080, www.theage.com.au/national/victoria/kharla-city-council-meeting-draft20190219-p50ytq.html, accessed July 2020. Ms Williams is reported to have made a complaint to Victoria Police, and the City of Melbourne has stated that it will not release its report until this investigation is concluded.

40

www.theage.com.au/national/victoria/robert-doyle-too-unwell-to-appear-as-witness-insupreme-court-trial-lawyer-20181203-p50jvc.html, accessed July 2020. See also: www.theage.com.au/national/victoria/robert-doyle-complainant-confronts-council-meetingdemanding-copy-of-her-report-20190402-p51a41.html, accessed July 2020.

¶4.11 Investigating senior employees and executives As employees, senior executives are subject to the same conduct standards that the employer requires of all the workforce. Indeed, many management commentators argue that leaders of an organisation can reasonably be expected to apply a consistently higher standard of conduct, given that the impact of their wrongdoing on the corporate culture can be significant. Inappropriate behaviour displayed by leaders can spread through the organisation, as employees look to people in senior roles to understand what interpersonal conduct is acceptable to the company.41 Wrongdoing by Board members or executives has higher potential for media attention, legal exposure, regulatory penalties, reputational damage to the company and even impact on share price. Investigation of senior executives needs to be conducted with the most stringent attention to impartiality and minimising any possibility of bias affecting the carriage of the investigation. Confidentiality and discretion are also vital given that the organisation’s reputational risk is in the mix. Organisations face particular challenges in maintaining the perceived independence of investigations against their most senior employees, such as a member of the executive team or the CEO. (Similar issues arise with investigations of Board members, whether or not they are employees.) The obvious challenge is how to maintain the investigator’s independence, and their perceived independence, when there is no one (or few people) who are more senior than the respondent. Who will instruct the investigator? Who will make decisions about disciplinary consequences, if the allegations are proven? Usually, in the case of the CEO, the Board; in the case of a Board member, the other board members “in camera” (discussions in the absence of the accused Board member and the CEO). Executives sometimes push back on Board-led investigations, arguing that “operational” matters are not the purview of the Board, but the personal liability of Board directors, including for occupational health and safety and some Corporations Law matters, usually provides sufficient grounds for their intervention.42 Investigations of executives and Board members are usually only ever conducted by an external

investigator who is instructed by the organisation’s external lawyers (not the in-house counsel, who reports to the CEO), to keep the investigation at arm’s length, and with the consequence that legal professional privilege applies over the evidence uncovered and the investigation’s findings (see further Chapter 6). Alternatively, the external investigator might report to a committee of the Board, such as the Risk Committee or Remuneration, People and Culture Committee or a Board working group set up specifically for the purpose of addressing the allegations. Senior managers who have actual or potential conflicts of interest in the outcome should be prevented from any involvement in case-handling, to protect the integrity of all. The appointment of this instructor needs to take into account the possibility that there will be witnesses who are other senior managers, internal legal counsel and/or board members, who need to remove themselves completely from instructing or making disciplinary decisions. The organisation must identify, at the commencement of the investigation, who will be the decision-maker once the investigation has been completed. In high-risk situations, protocols covering the investigation process, crisis response and media management may also be needed. Throughout the investigation, the investigator must check conscious and unconscious bias — of themselves and of their instructors — in relation to people in positions of power. At the start of the process, consider: has the scope been whittled down, so that only trivial or minor issues are examined? Have elements of the original complaint been excluded from the scope? Is this a tokenistic step, or is the organisation genuinely attempting to determine the truth of all of the allegations raised? Watch for undue influence by the instructor over your process and your findings, and check any assumptions you might be making about the accused executive. If the allegations are unproven, maintaining stakeholders’ belief in the impartiality of the investigation and disciplinary process can be arduous. The organisation might be accused of hierarchical invincibility — that is, assuming that the behaviour of executives or board members is beyond reproach or immune from scrutiny, merely because of their seniority. Hopefully the organisation will have a robust track record of fair and thorough handling of all complaints, and an ethical culture which upholds the integrity of conduct standards for all. If “rainmakers” and other influential employees have been allowed to misbehave in the past, a mixed or negative finding in an investigation of powerful people will struggle for legitimacy. Key points • Whatever the alleged wrongdoing you are investigating, ensure that you know what rule the employee is alleged to have breached, and how the wrongdoing is defined and proscribed in your internal workplace policies and procedures. • It is useful to be aware of some of the common practical issues and considerations that may arise in the course of investigating allegations of bullying, sexual harassment, discrimination and fraud. • The conduct rules that apply to non-employees — such as volunteers, contractors and volunteers — are not always clear nor is the organisation’s ability to discipline them personally for proven wrongdoing. • Investigations of Board members, CEOs and senior executives are usually conducted by external investigators, often instructed by external lawyers under legal professional privilege. The greater risks for the organisation and for the individual respondent — in legal exposure, reputational damage and other broader impacts on the organisation’s interests — make such investigations high-stakes.

Footnotes 41

See Rose Bryant-Smith, “Toxic at the Top: Can badly behaved managers and leaders be reformed?”, Worklogic blog, 23 August 2019, available at www.worklogic.com.au/workplaceculture/toxic-top-can-badly-behaved-managers-leaders-reformed/ and Priesemuth M., Schminke M., Ambrose M. L. and Folger R., “Abusive supervision climate: A multiplemediation model of its impact on group outcomes”, Academy of Management Journal, (2013), 57(5), available at journals.aom.org/doi/10.5465/amj.2011.0237, accessed July 2020.

42

See further, Belk, M., Johnson, B. and Reyes, M., “Investigating alleged misconduct of

corporate leaders”, AWI Journal, (2019), 10(4), p 1.

Chapter 5: The Golden Rules Natural justice and procedural fairness

¶5.1

Giving appropriate notice of the allegations and investigation ¶5.2 Key principle: Impartiality

¶5.3

Managing conflicts of interest

¶5.4

The investigator acting diligently and promptly

¶5.5

Confidentiality

¶5.6

Balance of probabilities based on the evidence

¶5.7

Editorial information There are golden rules that you must adhere to during your investigation. These rules apply to all types of full investigation, irrespective of whether you consider the matter to be high or low risk to the organisation. The golden rules of investigations 1. Use a procedurally fair process. 2. Provide adequately particularised allegations and advise about the possible outcomes to the respondent before asking them to respond. 3. Ensure you remain an impartial and independent investigator. 4. Maintain confidentiality where practicable. 5. Offer a support person to all participants and support the parties throughout the process. 6. Act diligently and promptly. 7. Make your findings independently and based on the evidence you have collected, on the balance of probabilities.

¶5.1 Natural justice and procedural fairness The terms “natural justice” and “procedural fairness” are sometimes used interchangeably. In the context of a workplace investigation, natural justice is part of the broader set of requirements for procedural fairness. Procedural fairness is referred to throughout this book in relation to each of the steps in the investigation process, because each step is guided by these principles. Without procedural fairness, all your investigative work may be undone. Case examples In Royle v Cheetham Salt Limited [2008] AIRC 709, the Australian Industrial Relations Commission decided that an unfair investigation procedure entitled the respondent employee to compensation even though the organisation was found to have valid grounds to terminate the respondent’s employment. The unfairness was found to lie in the following flaws: 1. At a meeting with management, the respondent was not warned, before being asked whether she wanted a support person present, that a potential outcome of that meeting was termination of her employment. 2. The respondent was provided with the allegations and her employment was terminated in the same meeting. This did not give her the opportunity to consider or discuss the allegations before responding. 3. Open-ended questions were asked which did not clearly put the allegations to the respondent. In Kefeng Deng v Westpac Banking Corporation [2018] FWC 7334 (U2018/5696), the Fair Work Commission held that Mr Deng, a

mobile lending manager, had been unfairly dismissed due to an absence of procedural fairness. Commissioner Riordan found that the investigative process deprived Mr Deng of his entitlement to a “fair go”. In making this finding, the Commission took into account the following aspects of the internal investigation conducted by Westpac: • Before being interviewed as part of the investigation, Mr Deng was not given any specific details in writing about the allegations against him. • During the interview itself, which lasted five hours, Mr Deng and his support person were given only two short breaks and did not have access to any food, tea or coffee. Mr Deng was also shown some 30–40 documents during this meeting. • Mr Deng was given only 24 hours to respond to a letter, titled “Intent to Terminate Employment”, given to him during the interview. The letter which set out the allegations of specific breaches was six pages long and contained detailed allegations about his conduct on 35 occasions. Commissioner Riordan described this time frame as “grossly inadequate and procedurally unfair”. • Although Mr Deng provided a response and raised a number of avenues of inquiry regarding customers and Westpac staff who may have relevant information to consider, the investigator failed to follow up or contact any of these relevant and pertinent sources of evidence.

Natural justice — a part of procedural fairness In order to arrive at a just and defensible conclusion that is also perceived to be fair by those involved, it is very important that your investigation adheres to the two rules that make up the legal term “natural justice”. Definition: Natural justice 1. The hearing rule — requires the decision-maker to give an opportunity to the person who may be adversely affected by the decision to be heard in respect to matters relevant to the decision. 2. The no bias rule — that the decision-maker shall not be a judge in his own cause; that the decision-maker is free from bias.

In a workplace investigation, the hearing rule means you must put the allegations to the respondent and consider their responses before you make your decision. This means that the respondent must receive the allegations in advance, and the respondent must be able to understand exactly what is alleged so that they can properly respond. The no bias rule requires you to be impartial. If you have an interest in the outcome — for example, if the actions of your division are criticised in the complainant’s allegations, or the respondent is a friend of yours — then you shouldn’t be conducting the investigation. This is because you may be biased against one party (even unconsciously), or you may be perceived to be biased. This damages the reliability and defensibility of your findings and the integrity of the whole process. Procedural fairness In addition to the two natural justice rules, several additional steps are required to complete a procedurally fair investigation. These are outlined below. Definition: Procedural fairness Procedural fairness, in the context of a workplace investigation, means that the investigator: • gives appropriate notice of the allegations and the investigation to the respondent • gives a supported, confidential and reasonable opportunity for both the complainant and the respondent to respond to and comment on allegations and/or evidence • collects and considers all relevant evidence • is not biased or perceived to be biased, and • acts diligently and promptly.

Sometimes a procedurally fair process involves a delicate balance of a range of competing interests. For

example, your obligation to conduct the investigation promptly may need to be balanced against your obligation to ensure that an unwell participant has a reasonable opportunity to participate. That participant may require more time to be ready for an interview, or may require a couple of shorter interviews with a few days’ rest in between. Maintaining procedural fairness protects the rights of individuals and enhances all stakeholders’ confidence in the process. If an investigation is not procedurally fair, your investigation and report may be worthless because employment decisions made as a consequence can be overturned if an employee were to challenge them or the decisions were to be considered by a court or tribunal. Flawed investigation processes also have significant flow-on effects, with the potential to damage the confidence that employees place in your complaint-handling and investigation process. This chapter provides a detailed examination of what procedural fairness means.

¶5.2 Giving appropriate notice of the allegations and investigation Notice of allegations Giving the respondent a procedurally fair hearing does not mean favouring the respondent; it means giving the respondent a fair opportunity to respond to the allegations. The person who is the subject of the allegations is entitled to know all the allegations made against him/her and must be given the right to respond and adequate time in which to respond. Once the allegations are clear and fully particularised, and your instructions as to the scope of the investigation are established, the organisation (or you, as the investigator) can provide the fully particularised allegations to the respondent, and invite them to respond. It is far preferable to provide the respondent with an accurate, concise and complete summary of the allegations, as outlined above, than to provide them with the complainant’s complete statement. Complainants’ statements often contain generalisations, sweeping statements and descriptions of emotion, which can imperil the positive future working relationship between the parties. There is no rule mandating that you must advise the respondent of the allegations as soon as the investigation has commenced. There may be good reasons not to tell the respondent immediately. For example, the allegations may be unclear and before they can be put to the respondent, you need to meet with the complainant and obtain further particulars first. If there is likely to be delay of some weeks to complete this step, rather than put the respondent on notice and have them wait anxiously for the details, it can be better to particularise the allegations with the complainant first, and after that step is complete, then inform the respondent about the allegations and the investigation. Alternatively, you may need, for instance, to secure evidence from websites or computer files before informing the respondent of the allegations. This approach prevents the possibility of evidence being destroyed, amended or removed. The amount of notice provided to the respondent of the allegations before they are required to respond will vary, depending on the nature, number and complexity of the allegations. Each case will require you to consider what is reasonable in the particular circumstances. For example, 24 hours’ notice or less may be adequate, if the respondent agrees, and the allegations are simple and small in number. If the allegations are lengthy or complex, the respondent needs to obtain documents or notes in order to respond or the respondent needs time to obtain legal advice or arrange for a support person to attend, then a week’s notice would be more appropriate. Check your policy to find out if it sets out a particular notice period and adhere to that period. Note, however, that you may need to make a judgment about fairness to all the parties and your obligation to investigate promptly if one participant is repeatedly not available to be interviewed. Case example In Jimenez v Accent Group T/A Platypus Shoes (Australia) Pty Ltd [2016] FWC 5141, an employee was dismissed for failing to immediately record a sale of shoes to his friend and place the cash into the till. The sale was, however, subsequently processed. The employee was invited to a meeting without notice, advised of fraud and theft allegations against him and asked to respond in writing. He was then required to attend a further meeting where his responses would be considered. After a break in that later meeting, the employee was advised that his employment was terminated without notice and was given a termination letter.

The employee subsequently claimed unfair dismissal on the basis that the way the allegations were put to him, and the termination process, was procedurally unfair and biased. The Commission agreed: it accepted that, while the employer had a valid ground to dismiss the employee for serious misconduct, the way the process was conducted evidenced a bias against the employee. Specifically, the employer’s characterisation of the conduct as “theft” (where the employee had subsequently arranged for the processing of the sale) implied a criminal intent, and indicated that it did not approach the issues with an open mind. The employer had “formed a view” about the employee’s guilt from an early stage, it misled (or did not inform) the employee about the purpose of the initial meeting, and the final termination letter had been pre-prepared prior to the final “show cause” meeting.

Notice of questions to be asked The investigator is not required to provide the respondent with the questions that will be asked about the allegations. The respondent need only be given the allegations that the organisation is asking them to respond to. Giving the respondent the questions before the interview would give them too much opportunity to prepare their specific answers, and reduce your ability to judge their credibility and the truth of their responses. In addition, the respondent’s answers to your questions will invariably lead you to ask other questions and you do not want to be restricted to only asking pre-agreed questions. If the respondent insists on responding only in writing, that is their choice. It may make your decisionmaking more difficult — as it is harder to judge their credibility without engaging with them in person — however, you are entitled to make findings against the respondent in this circumstance. A written response will often raise additional questions for the investigator, and these can be put to the respondent in writing, or put to them in an interview if they will agree to participating in an interview after submitting their written response. It will never be procedurally fair to present the respondent with the allegations, request a response immediately, and deny the respondent any time to consider the allegations and prepare their response. Notice of contradictory evidence Contradictory evidence is evidence you have collected which contradicts what one of the parties has told you and on which you are going to rely in order to make findings of fact. Each party should be given the opportunity to respond to any contradictory evidence. Specifically, where you are contemplating making findings and writing a report that contains conclusions adverse to the interests of any person, that person must be given the opportunity to respond to that specific evidence and to put forward material that may influence the outcome of the report, and that person’s defence should be fairly set out in the report. This does not mean that the respondent has to see every piece of evidence you collect or the whole report, they need only be provided with the evidence that contradicts their evidence. This step is an important part of procedural fairness, and can obviate the need to provide the whole investigation report to the parties, as they will have already seen, and had an opportunity to respond to, the evidence that may be relied upon against them. For example, Alison says that she could not have engaged in improper use of the company’s IT equipment and uploaded malware to the system on Saturday 17 August, because she did not logon to the system from home over that weekend. A forensic IT expert provides evidence that a person using Alison’s IP address logged on to the system at 3.04 am on that day. You must put that contradictory evidence to Alison for response before drawing conclusions on the basis of that evidence. What if Alison had a birthday party at her house that night, and had invited nine other employees from the company and one disgruntled ex-employee with IT skills? What if Alison can show that she was in fact on a remote Fijian island without internet access for the whole of that week, and her brother was house-sitting? Learning unexpected information such as this, in response to contradictory evidence, is not as unusual as you might think. See Chapter 16 for a further explanation of contradictory evidence. Notice of possible penalties At the commencement of the investigation, you should also inform the participants that disciplinary consequences might follow if: • you do find that any of the allegations are proven (respondent only)

• they have made vexatious or malicious allegations (complainant only) • they do not act honestly or participate in good faith in the investigation process • they victimise anyone for participating in the investigation • they attempt to influence a witness • they breach any confidentiality requirements. Note: A separate investigation may be necessary to ensure procedural fairness where a participant appears to have lied, acted vexatiously or in bad faith, or acted inappropriately towards another participant.

¶5.3 Key principle: Impartiality To be impartial as an investigator, you must not have a personal interest in the matter being investigated, or in the people involved in the investigation. As an impartial investigator, you must independently and impartially consider the relevant evidence, and make your own findings, without fear or favour, no matter what pressure is brought to bear on you to sway your findings one way or the other. Likewise, any decision-maker who may consider your report findings must not have a personal interest in the matter being investigated or the people involved in the investigation. The most important quality of a good investigator is that they are impartial. You must not only be impartial, but you must also be perceived by others to be impartial. A person accused of workplace misconduct is innocent until proven otherwise. To conduct a procedurally fair investigation, you must presume that the person whom you are investigating, who is accused of inappropriately committing an act or omitting to do something, has not behaved as alleged until you have evidence to prove the allegation one way or the other. This is the case throughout the investigation, until all the evidence has been collected and tested, and you come to your final decision. Given that you must carry out the investigation fairly and without bias, you need to ensure that nothing you do or say during the course of the investigation indicates even a perception of bias or prejudgment. Selecting an impartial investigator Selecting an impartial investigator (internal or external) is possibly one of the simplest steps to ensure the success of the workplace investigation. It is also the step, if done poorly, that has the most likelihood of derailing the investigation, rendering its results worthless and exposing the organisation to risks, including the organisation’s employment decisions being overturned. The organisation should carefully consider who is the best investigator for the matter that has arisen. Whether the investigator is internal or external to the organisation, the choice should always be guided by the golden rule of impartiality: is this investigator impartial, and will the investigator be perceived to be impartial? The most appropriate person to conduct the investigation is discussed in detail in Chapter 6. If you foresee that there may be a perception of bias if an internal investigator is used, it is sensible to appoint an external investigator. If that external investigator has a long-standing working relationship with the organisation or has a close relationship with the in-house lawyer instructing the investigator, consider whether they will be perceived to be truly independent by the parties, or by an independent tribunal that later evaluates the integrity of the process. Case example In Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIR Comm 51, the Commission held that the investigation process was “so infected by procedural deficiencies as to contaminate the process”. A decision made on the basis of the flawed investigation report to reduce the respondent’s pay increment and transfer him was overturned and the AIRC ordered that the respondent be returned to his former role. The flaws included:

• the decision-maker had a predetermined view of the outcome of the investigation, a flaw which on its own would have justified a finding that the termination was harsh, unjust and unreasonable • irrelevant matters were considered • the investigator had been involved in one of the alleged incidents and had disagreements with the respondent • two relevant witnesses were not interviewed • unreasonable delays in the process, which commenced in June 2006 and concluded in January 2008 • the delays caused stress and anxiety for the respondent, and • the respondent was not given details of the allegations until he was interviewed, many months after the investigation had begun.

In various legal cases, courts have found that the following factors can indicate a lack of impartiality by the investigator: • An investigator commented in their investigation report that the respondent had responded to questioning in a patronising and sarcastic way — this was found to affect the investigator’s objectivity and should not have been taken into account, as it did not reasonably affect the truth or credibility of the respondent’s answers.1 • An investigator who became upset when the respondent abused him verbally terminated the investigation before it was complete, limiting the respondent’s ability to respond, and did not give the respondent a chance to complete their evidence at another time or in another way. The court found that the investigation was fatally flawed because the respondent was not given an opportunity to respond to the reason for his termination of employment following the flawed investigation.2 • An investigator unfairly questioned a complainant’s credibility.3 • An investigator made predetermined conclusions.4 • An investigator’s recorded language during witness interviews included responding to evidence with comments such as “I’m not doubting that” and “… yes, I agree”, which were found to create a perception of bias.5 Of course, it should go without saying that the investigator cannot also be a witness in the case, and should it become clear during the investigation that the investigator is in fact a relevant witness, the investigator must stand aside. Case example In Emery v City of Stirling [2018] FWC 914, the employer displayed “considerable irony” (according to Deputy President Binet) for dismissing an employee for breaching a policy, while also failing to follow its own policy. Mr Emery was terminated from City of Stirling for modifying the air conditioning units on two council vehicles. Mr Emery maintained that he had received approval from manager Mr Snook to undertake these works and that they were part of his job description. Mr Emery was then investigated by Mr Snook, and his employment was terminated for misconduct. Mr Emery filed an unfair dismissal claim. The Fair Work Commission found that the City of Stirling had not followed its own policies in regard to the investigation. In particular, Mr Snook, the manager “whose evidence was central to the issues in dispute, was not only permitted to be present when [the employee] gave his evidence but in fact [he] was given carriage of the entire investigation”. Furthermore, when Mr Emery claimed that it was Mr Snook who had given him permission to undertake the car modifications, Mr Snook simply denied this was the case and moved on. He did not take any statements or records of any interviews conducted, or write a report, in clear violation of their own grievance management policy. The Commission held that Mr Emery should be reinstated and that he should be back-paid to the date of termination. The City of Stirling was then successful in its appeal of the findings to the Full Bench, which overturned DP Binet’s decision: City of Stirling v Mr Kevin Emery [2018] FWCFB 2279. In a further irony, the Full Bench held that DP Binet had denied the employer procedural fairness in the hearing when she failed to allow City of Stirling to respond to her conclusion that a key witness (the investigating manager) had “something to hide” and had a “clear motivation” for giving evidence denying that he authorised the modifications. The Full Bench referred the matter back to Commissioner Bissett for rehearing. In Kevin Emery v City of Stirling [2018] FWC 6853, Commissioner Bissett confirmed that Mr Emery had been unfairly dismissed

“because of the substantial deficiencies in the investigation process”, which “had a substantive effect on the capacity of Mr Emery to respond to the reasons for his dismissal such that he might have some influence on the decision”.

Be careful that your responses to the participants’ evidence do not indicate acceptance or agreement with the evidence they have provided, or conversely, rejection of their evidence before properly testing it. Remember: always assume that the respondent is innocent until proven otherwise. Even if you personally believe that the respondent did engage in the alleged misconduct, you may only have part of the story, and the investigation may reveal surprising evidence.

Checklist: Are you impartial? If the following procedurally fair steps are taken, you can be confident that you will be able to defend your investigation from criticisms of partiality or bias. Ask yourself if you are able to: □ Have no preordained ideas or preferences about whether the allegations are true (honestly!). □ Have no pre-existing special relationships with the complainant, the respondent or any witnesses who might give key evidence. □ Have no pre-existing relationships with your instructor or stakeholders in the organisation that may impact on your independence and impartiality, in reality or as perceived by the parties. □ Have no personal interest in any particular outcome, and the allegations have no relevance to you or your close colleagues (such as criticisms of your division internally). □ Be confident that you are not, and will not become, a witness yourself. □ Be impartial in assessing the credibility of the complainant, respondent and any witnesses, and where appropriate, include your observations and conclusions about the participants’ credibility in the investigation report. □ Anticipate and manage possible perceptions of a conflict of interest or bias before the investigation commences. □ Treat all participants fairly and consistently by adhering to a sound and planned investigation process from the outset. □ Keep an open mind about the allegations and maintain the belief that the respondent is innocent throughout the investigation, unless and until the evidence proves otherwise. □ Remain at arm’s length from the participants during interviews and the investigation process. □ During the investigation remain at arm’s length from your instructor in the organisation or other stakeholders who may attempt to influence you with their preferred outcome. □ Ensure that there is sufficient evidence to make the findings and not make a formal decision until all reasonable enquiries have been made. □ Resist pressure by others in your organisation to make a finding in a particular way or to change the report after it is completed, unless the change is soundly based on relevant evidence and only after independently and impartially considering that evidence.

You must be able to do all of these things in order to be, and be perceived to be, impartial. This checklist is available for complimentary download at www.worklogic.com.au/downloads. Footnotes 1

Dr Falk v ACT Health [2007] AIRC 613.

2

Roger Garrett v Shamrock Holdings [2009] AIRC 832.

3

Lee v Smith & Ors [2007] FMCA 59.

4

Gilmour v Commissioner of Police [2009] NSWIR Comm 51.

5

Lohse v Arthur (no. 3) (2009) FCA 1118.

¶5.4 Managing conflicts of interest Conflicts of interest can arise quite naturally in the workplace. For example, Rian’s sister-in-law applies for a job at the same company, and Rian had planned to be on the interview panel as part of the recruitment process. A conflict of interest has arisen between Rian’s personal interest (that his sister-in-law wants a job) and his professional interest (that is, Rian’s obligation to his employer to participate in unbiased decision-making about the appointment). A conflict of interest is a conflict between two competing interests, often between a professional or public duty, and a private interest. Conflicts of interest can involve financial or non-financial interests of the employee or of the employee’s business associate, family member or friend. In organisational decision-making, a reasonably perceived or potential conflict of interest can be as damaging as an actual conflict of interest. The best way to resolve a conflict of interest in a workplace investigation is to avoid the conflict in the first place. Most conflicts arise because of the investigator’s prior association with a participant in the investigation. Some examples of conflicts of interest might include when the investigator: • has been involved in disciplining the respondent for the same behaviour he or she is now accused of • is a close friend of the complainant and they regularly socialise at lunchtime or out of hours together • is managed by the respondent, so the complainant may perceive it to be against the investigator’s interests to make a finding of fact against the respondent • could be influenced indirectly by one party, because that party has some influence over the career interests of the investigator (for example, is a key contributor to their performance appraisal) — this is a common circumstance for business-based HR managers, who belong to the business management team but report to the HR division • has personally witnessed some of the alleged behaviour • is a close personal friend of one of the witnesses identified by the respondent in interview, or • has conducted a number of investigations in the organisation and one, or more, of the parties has a perception that the investigator typically favours managers or vice-versa. Impartiality scenarios Determining whether you have a conflict of interest or cannot be impartial requires an exercise in careful

judgment. Ask yourself if you could remain neutral in the following situations. Would others perceive you to be neutral? • A senior executive tells you: “This guy is a real problem and he’s done this before. Finally, we have the ability to get him out. I just sent you an email with all the dirt.” • You have previously made findings of fact against the respondent in the current case. • You are instructed to investigate a claim of misuse of the marketing expense account against a fellow executive you have known professionally and socially for many years. You know that his wife would be horrified if the allegations were substantiated. • You are immediately outraged by the allegations from a Syrian worker of racism at work. Some of your colleagues know that you have been active on refugee websites and in social media campaigns. • You’d prefer that the allegations were not substantiated, given that the respondent is a union delegate. In each of these scenarios, there is a possibility that one of the parties — if they become aware of your personal thoughts and preferences — will object to your appointment as investigator, and argue that you have favoured one party over the other. Even if you are confident that you can remain impartial, the perception that you may be biased can have very serious consequences for the investigation outcome and any decisions made in reliance on the investigation report findings. In the above scenarios, you might not have to step down as investigator, but you should consider and address the conflict of interest early. Interference by the instructor Interference in an independent investigation can come in many forms, some more direct and open, and others subtle or insidious. The instructor of the investigator — whether the investigation is being conducted internally or by an external consultant — is one of the more challenging sources of improper influence. Interference can take many forms, such as the instructor: • setting the scope of the investigation in such a way that legitimate concerns of the complainant are excluded, minimised or mischaracterised • trying to introduce information or evidentiary material that was not obtained by the investigator and asking the investigator to include that when making findings • calling witnesses in advance of the investigator’s contact, ostensibly to let the witness know of the investigation’s existence but at the same time influencing the witness towards a particular outcome or discouraging them from providing certain evidence (“Just don’t mention the procurement issues that Kris had last year, that will just complicate things”) • failing to action the investigator’s requests for access to documents, witnesses or IT support (“I really don’t think that line of enquiry is necessary”) • putting pressure on the investigator to “wrap this case up”, when premature completion will mean that the parties won’t have a proper opportunity to get advice or consider contradictory evidence, and • running a parallel internal investigation or exploring lines of enquiry, in an attempt to achieve their own objectives or influence the investigation’s outcome. Friction between the investigator and the instructor will certainly ensue. The investigator feels vulnerable given that the instructor is, in many ways, more powerful than the investigator, having instigated the process and approving the external investigator’s invoices for payment. The investigator must ultimately prioritise their loyalty to a fair and thorough process, above all else. The ethics and ultimate interests of the employer — and the investigator’s integrity and reputation — are more important than the investigator enjoying a pleasant relationship with the instructor. The requirements of a proper investigation process,

and potentially the scrutiny of a court or Commission in future, must always come first. How to respond when a conflict arises or your impartiality is challenged The best way to manage any challenges to your impartiality in advance is to communicate upfront with your client and reinforce to them you are there to be neutral, unbiased and thorough. This affirmation of roles and responsibilities should take place throughout the investigation. It is always safer to act early and err on the side of caution if a potential conflict of interest or challenge to your impartiality arises. Allegations of bias that are made after the investigation is complete — usually made by the party whose allegations or defence you did not accept — can be very damaging to the credibility of the investigation as a whole. Whenever a possibility of a conflict of interest or perception of bias arises, deal with it immediately and transparently, ideally with input from an impartial colleague. Conflicts of interest are sometimes hard to articulate and understand, so talking it through with someone who is not involved can be helpful. Full disclosure, with an opportunity for the parties to object to your involvement, may be adequate to manage the conflict of interest. If you decide that, despite the potential perception of bias, you are still able to investigate, you should declare the potential conflict of interest or perception of bias at the start of the investigation, to both of the parties. Notify and discuss with each party, in a documented meeting, the issue of impartiality that has arisen, such as your acquaintance with a participant. Tell them that you do not believe the potential conflict of interest prevents you from proceeding with an investigation, and conducting the investigation in an unbiased way, but that they should raise any such objections now. If neither party objects, after adequate time to consider the conflict, then you can proceed. If the instructor acts in a way that could be perceived as interference, warn them in writing about the risks of their actions, and remind them of your obligations and why you were engaged in the first place. This difficult conversation is essential. It will avoid further conflict during the investigation and support the maintenance of your impartiality. If genuine concerns are raised about your impartiality, this will not necessarily mean that you will be prevented from continuing to carry out the investigation. A further way to manage a potential conflict of interest is to have a third party sit in on key interviews and review the report before it is finalised, although resource constraints will probably mean that someone else investigates. If the conflict of interest or perception of bias cannot be managed, you should withdraw from the investigation and remove yourself from any further involvement in handling the case, and a new investigator will need to be appointed by the employer. If this step is necessary, hand over to the employer the work you have completed to that point (external investigators, keep a copy of the material for your own records). Withdrawal from a partly completed investigation is the last resort, given the impacts for the employer on cost, repetition of effort, its relationships with the employees who have participated to date, the duration of the project and the well-being of participants. Ethical questions like this often come out of left field. Do not try to handle them alone, particularly in highpressure situations. Take the time you need to think through the issue and consult with others, such as trusted colleagues within the organisation, others who work in the field of workplace relations, legal precedents and contacts within professional organisations such as the Australasian Association of Workplace Investigators, the Association of Corporate Counsel Australia or the Australian Human Resources Institute. Talking through strategic questions, challenges and risks with an informed and trusted colleague is invaluable. Finally, ensure that you document the alleged conflict of interest or challenge to your impartiality and the steps you take to manage it, and summarise them in your report, in case the issue arises again after the conclusion of the investigation. This will ensure transparency and communicate to the reader of your report about how the issue was addressed.

¶5.5 The investigator acting diligently and promptly There are no clear-cut rules about how quickly a workplace investigation must be undertaken, but there is a general requirement that it be completed as diligently and as promptly as possible.

Unreasonably long delays of up to 12–18 months to investigate have been found by courts to be procedurally unfair.6 Such delays increase the stress on the parties, often decrease the confidentiality of the process, make some types of evidence less reliable or harder to locate, and delay employment decisions about the alleged behaviours. Respond promptly when a complaint is first received, and appoint an investigator quickly. Balancing the obligation to conduct the investigation promptly against the need to collect all relevant evidence can be challenging, particularly if: • Participants attempt to delay or disrupt the process. • A participant cannot say when they will become available (for example, if they are sick). • Progressing the investigation without delay means that you miss out on key interviews or evidence. If a delay is unavoidable, document the reasons for any delays. Keep in touch with the complainant and respondent about the delay and your plan to finalise the matter, as they will be feeling anxious. The parties to a complaint experience delays more keenly than you do as the investigator. If a participant delays without reasonable explanation or they are unavailable for a long period of time or indefinitely for good cause, it may be necessary for you to conclude your investigation, without the benefit of their evidence, in order to meet the requirement that you investigate promptly, out of fairness to the parties. Whatever the delay and however you resolve it, note this in your report, in particular, the significance of any participant’s non-involvement and the opportunity you provided for their participation. Diligence in an investigation requires persistent effort and attention to detail. Diligence includes making all reasonable enquiries, attempting to locate evidence that could be important and relevant, interviewing enough relevant witnesses, and properly and carefully considering the evidence without preconceived ideas. A diligent investigator will ensure all participants have the process, rights and responsibilities clearly explained to them, including their right to bring a support person to their interview and to nominate witnesses. Courts tasked with considering the fairness of workplace investigations that lead to termination of employment have found that a lack of diligence such as failing to take into account responses to contradictory evidence (discussed further in Chapter 16) or conducting cursory interviews meant that the findings of the investigation were not a valid reason for termination of employment.7 Case example In Darko Gmitrovic v Australian Government, Department of Defence [2014] FWC 3166, an employee who was dismissed for alleged excessive time browsing the internet (and using an anonymous search engine for inappropriate purposes) won an unfair dismissal case in the Fair Work Commission, which called the HR investigation “extraordinarily drawn out”, “amateurish and unfair”. The flaws in the investigation found by the Commission were as follows: • failing to meet with potential witnesses during the investigation process, including with the employee’s immediate supervisor and co-workers to ascertain the amount of actual time he spent browsing the internet • at no stage did the employer consult with the employee in person, or allow the employee to properly respond to the final allegations used to justify his dismissal • making an assumption (without further enquiry) that the employee was using an anonymous search engine for a “nefarious” purpose, and • the investigation was not conducted in a timely and efficient manner. There was a two month delay in putting the allegations to him after he was initially advised of the investigation. The employee’s response to the allegations then alerted the employer to inaccuracies in the allegations, which were only corrected four months later. As a result, the investigation was too long, lasting just over 12 months.

Footnotes 6

Nikolich v Goldman Sachs J B Were Services Pty Ltd [2007] FCAFC 120; Gilmour v Commissioner of Police [2009] NSWIR Comm 51. In these two cases the investigations took 6

months and 18 months respectively and were considered by the courts to be procedurally unfair. In Antony Mundy v MSS Security Pty Ltd T/A MSS Security [2015] FWC 3226 it was found that a delay of six weeks was unreasonable. 7

See for example Rizwan Ahmad Khokhar v Bytecraft Systems [2010] FWA 3913 in regards to failure to take into account response to contradictory evidence. The investigator also had preconceived ideas, and the findings of the investigation did not constitute a valid reason for termination of employment. See Gary Bermingham v Kings Transport & Logistics [2010] FWA 1116 in regards to cursory interviews and a failure to advise of the right to support person. Roger Garrett v Shamrock Holdings [2009] AIRC 832 and Sheng He v Peacock Bros Pty Ltd, Wilson Lac v Peacock Bros Pty Ltd [2013] FWC 7541 are also relevant to this point.

¶5.6 Confidentiality A key principle in all investigations is the importance of maintaining a confidential process, as far as the investigation can reasonably permit. As an investigator, you must ensure that everyone who knows about the investigation is told that the process is confidential (with some limits, explained below) and ask all participants to agree to maintain confidentiality. This is important in order to: • protect the reputation of both the respondent and complainant • minimise the possibility of victimisation or detrimental action being taken against any participant • ensure all staff have confidence that they can raise allegations and that they will be handled sensitively and confidentially — workplace gossip and breaches of confidentiality can do widespread damage to that confidence, and • ensure that witnesses have not had an opportunity to collaborate or influence each other’s recollection, inadvertently or deliberately. What does confidentiality really mean for the participants? When the investigator asks participants to maintain confidentiality, this means not speaking about the investigation to anyone in the workplace including the complainant, the respondent or any witnesses involved in the matter. There are, however, limited exceptions to the requirement to maintain confidentiality. For example, participants can discuss it with you, as the investigator; with their support person; or with a union representative or lawyer who is advising them. They may also want to discuss it at home or with close friends (who are not colleagues) in private and out of working hours, provided those people also understand the requirements of confidentiality. Although it is reasonable to ask employees to maintain confidentiality so as not to compromise the investigation, it is important to make sure that confidentiality requirements do not unduly isolate employees and should allow them to maintain their friendships and social networks at work. Requests to maintain confidentiality should be limited to restrictions on discussions about the investigation, the interview and the questions asked and should expressly permit the participants to speak to their support person, relevant Human Resources staff and their advisors. To reinforce the requirement of confidentiality of the process, you may tell the participants that the organisation will consider taking appropriate disciplinary action against any participant who breaches that direction. If you suspect or become aware that confidentiality has been breached, either before or during your investigation, it can be useful to ask the participant directly what conversations they have had (particularly with the parties) and when. This will help you to determine whether there has been collaboration or whether the breach has affected the credibility or integrity of any witnesses.

What if you are not the first investigator to have considered the matter? If everyone whom you interview has also been seen by a workplace health and safety inspector, or an insurer’s representative, the participants in your investigation may not understand the need for confidentiality. They may also try to give you a copy of the statement they have already given, which you may or may not be able to receive and rely on. (This depends on the laws that cover the prior interview, which are strict about disclosure and reuse of statements created for WorkCover purposes, for example.) Usually you can explain that the workplace investigation that you are running needs to be contained and confidential in itself, and that you may or may not ask the same questions as the prior investigator. What does confidentiality really mean for the investigator? As investigator, you cannot promise complete confidentiality about the evidence you collect. This is because you may need to put the evidence of a party or a witness to other participants for comment, and this will include identifying who gave you that evidence. For example, if Lucy says Karen yelled at her rudely in the team meeting and Karen denies that she raised her voice, Karen should be given the opportunity to respond to contradictory evidence that Jesse, also present at the meeting, described Karen as “shouting angrily at Lucy with the words ‘I am not going to keep repeating myself. Just listen’”. In addition, your investigation report is not strictly confidential in that it may be read by other personnel in your organisation, such as another decision-maker, internal legal advisors, the board or the organisation’s insurer. It may also end up outside the organisation, if it is requested by an occupational health and safety regulator or other external body. Furthermore, if the respondent has been suspended, the fact an investigation is afoot may become widely known. So, while you may describe the investigation process as confidential, it is never completely confidential. The confidentiality that you can offer to those involved is only an assurance that the information will be treated in confidence as far as the investigation process can reasonably permit. Complete confidentiality cannot be promised where it would compromise the investigation or limit its effectiveness. It is important that the participants are aware of this from the outset. In advance of their interviews, you should explain to all of the participants exactly who might end up reading the report and seeing the evidence which they provide, so that the participants know who will potentially come to know about the evidence which they do provide to the investigator. What to tell witnesses before their interview to maintain confidentiality Given that participation in workplace investigations is usually voluntary (unless a staff member has been directed to participate), witnesses who participate should, as a general rule, be told just enough about the investigation to enable them to make an informed choice about whether to participate or not. Not all witnesses need to be told the identity of the parties or what the allegations are. As long as witnesses are provided with enough information to enable them to provide meaningful and relevant evidence, you do not need to provide more information to them. In the above example, Jesse can describe what he saw and heard at the team meeting on 4 June without knowing what anyone else has alleged happened in that meeting, or specifically that Lucy has made a complaint against Karen about her allegedly yelling. Minimising the amount of information that witnesses receive can greatly increase the confidentiality of the process. If you are concerned about the witness thinking your interview questions are odd or disjointed, don’t be. You can always explain at the start of the interview: “The questions I have for you may seem unrelated or surprising. This is because I am only going to ask you about the things that you might have directly seen or heard, on the basis of what I have been told so far in this investigation. Given that you still work with one of the parties, it’s best if I only ask you about those things you may have directly witnessed.” On the other hand, not providing enough information for a witness to respond and not identifying the parties can backfire if it means the witnesses’ curiosity leads them to talk to other employees to try and find out for themselves who made the allegations about whom. Use your judgment to provide witnesses with just enough information to be meaningfully involved and to have a clear understanding of their

obligation to maintain confidentiality. In the example below, the investigator has started with questions that do not identify the parties or the details of the allegation because this witness was apparently the only person alleged to have been present in a tea room where an argument allegedly took place on March 28. Therefore, as a starting point in the interview, the witness only needs to be asked if he/she was in the room on the relevant day and what was observed. It is not necessary to tell the witness that Rob has made an allegation of verbal abuse and swearing by Toby during an argument. In this example, however, the investigator did also need to ask questions that disclosed the identity of the parties and the details of the allegation in order to obtain relevant evidence. Your purpose of obtaining relevant information from an eyewitness in this case overrides your obligation to maintain confidentiality. For example: “Q. Were you in the tea room on 28 March? A. I can’t recall. Q. Did you observe an argument involving swearing between two staff members at any time in or about March? A. I saw a few actually! Q. Have you ever seen Rob involved in an argument? A. Yeah. He and Kaylene had a real barney about the state of the kitchen on level 12. Q. Is that the only time you have seen Rob involved in an argument? A. No, I’ve seen him do that a few times really. Q. Have you ever seen Rob and Toby involved in an argument? A. Actually, yes, I did but only once that I can remember. I think it was in late March because I had just got back from my holidays. Q. What happened? (etc)” What to tell witnesses at the end of the investigation to maintain confidentiality At the end of the investigation, it is very helpful to provide the witnesses with some information about the conclusion of the investigation and to thank them for their involvement. Failing to inform witnesses that the investigation has now ended can damage their confidence in the process and leave them wondering what happened. There is no need to tell witnesses what your findings were or what steps have been taken in response (for example, whether disciplinary action was taken). You can, in general terms, explain that the investigation has concluded and findings of fact have been made that enabled the organisation to make a decision, and thank them for their evidence, time and assistance. At the same time, remind them about their continued obligation of confidentiality. What to tell parties at the end of the investigation to maintain confidentiality In all cases, the parties should be informed of the findings that the investigator has made and what actions, if any, the organisation has decided to take in response to the findings. In some organisations, the employees (and others) may have a right to make a request for provision of the full report under Freedom of Information legislation. If the matter reaches the courts, it may be obtained through the discovery process. Some organisations provide the entire investigation report to both the complainant and the respondent. Others prefer to provide only a statement of the findings that have been made and a short summary of the evidence relied upon. Others provide a verbal summary of the findings of fact and actions arising. It is considered best practice by most employers not to provide the full report with transcripts or notes of interview attached to either party (unless there is a procedural or industrial obligation to do so). Providing the full report and transcripts to the parties can be potentially damaging to relationships within the organisation and expose witnesses to potential victimisation or detrimental action. Unless all participants were informed that this will occur before they participated in an interview, the participants will have a justifiable sense of grievance and loss of confidence in the process. It can also lead the participants to focus on the minute detail of who said what to the investigator, to attempt to restate their evidence, or to

try to bring further evidence into consideration. Sometimes the parties will feel aggrieved if they are not provided with a copy of the report, especially where the allegations are largely unproven (for the complainant) or the findings are used to support a decision to terminate the respondent’s employment (for the respondent). Where the respondent has been provided with all the allegations and the parties have been given a chance to respond to all the contradictory evidence relied upon before conclusions were made, it is arguable that they have already been provided with enough material to understand how the findings were reached. Therefore in communicating the outcome to the parties, and balancing the competing obligations to maintain confidentiality as far as practicable, it can be useful to provide to the complainant and the respondent a summary of the report that includes the allegations, the findings and the contradictory evidence relied upon.

Checklist: Ensuring your investigation is procedurally fair The steps below are essential to ensure that your process is procedurally fair: □ The respondent knows all the allegations made against him or her, in sufficient detail for them to be understood. □ The respondent is given a reasonable opportunity to respond and adequate time in which to prepare a response. □ Details of the possible penalties, together with the allegations, are made known to the respondent. □ The investigation is conducted within a reasonable time frame, and unreasonable delays are avoided. □ The parties, and ideally the witnesses, are given the right to have a support person of their appropriate choice. □ All participants are required to maintain confidentiality and reasonable efforts are made to ensure breaches of confidentiality do not occur. □ All relevant witnesses are interviewed and given an opportunity to relate their version of the events, including those nominated by the complainant and respondent where judged to be relevant by the investigator. □ The investigator and any decision-maker are impartial and independent, have no personal interest in the matter being investigated, and any issues of perceived bias are addressed. □ The investigator is impartial in assessing the credibility of the complainant, respondent and any witnesses and all the evidence collected. □ Each party is given the opportunity to respond to contradictory evidence. □ The investigator makes reasonable, diligent enquiries, and ensures that there is sufficient evidence before making findings on the balance of probabilities. □ The parties are informed of the outcome of the investigation and given enough information to understand and accept the outcome.

This checklist is available for complimentary download at www.worklogic.com.au/downloads.

¶5.7 Balance of probabilities based on the evidence The last key principle discussed in this chapter is the balance of probabilities. Definition: Balance of probabilities The balance of probabilities is the standard of proof that must be met in order for an allegation to be proven. In other words, it is the level of proof you must use when deciding if the complainant’s allegations are established or not. The balance of probabilities means that it is more likely than not that the alleged behaviours occurred.

Stated another way, the balance of probabilities means that the evidence, when weighed up, is at least 51% likely to have occurred. The evidence which you use in that weighing up process must be evidence you have collected in the investigation. You must be able to identify that evidence clearly, and explain in your report what evidence you have considered and relied upon. This means that personal opinions, past experience, previous problems with either complainant or respondent or other irrelevant matters should not be included in your weighing up of the evidence. Applying the test of the balance of probabilities in order to make your finding of fact is discussed in more detail in Chapter 17. The ethics of workplace investigations In many ways, everything in this book is about and based on ethics. This text covers in detail the golden rules of natural justice, procedural fairness, impartiality, clarity of scope to ensure limitation on powers, clear communication as part of accessibility, avoidance of bias and discrimination, fair treatment of people who have experienced trauma, reasonableness in drawing conclusions and so on. All of this guidance has at its heart a fair and reasonable process, drawing on judges’ and commissioners’ consideration of what was right in the circumstances of select legal cases. While there are some “golden rules” of investigations, ethics is never black and white, and there are a variety of sources of ethical guidance for workplace investigators. The Association of Workplace Investigators (USA) (AWI) has Guiding Principles8 which include various ethical rules and recommendations, fundamentally focused on impartiality, objectivity, confidentiality and fairness. The AWI principles include: “2.a. Whenever possible, the investigator should be someone who is in fact, and who is perceived by the participants to be, impartial, though this may not be possible in every case. b. Employers may choose to use an in-house (internal) investigator. In such a case, the internal hierarchy of the organization should be considered in order to avoid the fact or perception of bias or compromised objectivity. … e. Employers should guard against exerting undue influence on investigations. This does not preclude them, for example, without limitation, from preserving evidence, providing necessary notifications to employees, and providing input to investigators concerning the investigations’ scope. … 6.a. The investigator should maintain the investigation file in a manner that will protect the confidentiality of the information contained therein, consistent with the employer’s instructions and legal requirements. ... 8.c. An environment that is safe, private, and reasonably comfortable is conducive to a productive interview. ...

10.b. The investigator should strive in good faith to make reasoned findings.” Jurisdictional differences are apparent in the AWI Guiding Principles, in particular the notable absence of the provision of contradictory evidence to the parties, and ethical guidance around weighting different types of evidence (the rules of evidence are of course different in USA). We look forward to the release by the Australasian Association of Workplace Investigators of its own guidance on the ethics of investigations, which is in progress at time of writing. The legal regulation of investigators, covered in Chapter 6, is notable in its paucity of substance: these are licensing regimes, not standards boards or professional associations. Even investigators covered by a licensing regime get little guidance in the substance of their practice. Investigators who are also practicing lawyers have ethical rules which apply to their work, such as the Australian Solicitors’ Conduct Rules developed by the Law Council of Australia (adopted in South Australia, Queensland, Victoria, New South Wales and the Australian Capital Territory).9 Further, some employers have ethical codes and organisational values, which may or may not apply to the external investigator. An example is the Victorian Public Sector Employment Principles and Standards under the Public Administration Act 2004 (Vic),10 which require, among other things, that employees are treated fairly and reasonably; that processes are fair, clear and applied consistently in comparable circumstances; and that decisions are free of bias and unlawful discrimination. Some employers even have their own rules specific to the conduct of workplace investigations, with whose directions you may or may not agree.11 Sometimes the legal norms will conflict with your own personal ethics. The Queensland Court of Appeal may have found that there is no duty of care in the conduct of an investigation,12 but what “duty of care” will you choose so that you are able to sleep at night? Each investigator has the responsibility to identify the laws, rules, guidelines and ethical principles — including the values of the organisation that employs the parties as well as the investigator’s own personal values — that they will apply to the investigation before them. These ethical factors will change over time, and will be repeatedly tested, as ethical rules are often shaped in the “doing” and clarified in their practical application. Even once you have identified the ethical rules and principles that apply to your work, these can come into conflict at times and promote competing choices. Some other fundamental ethical questions that arise from time to time include the following: • In terms of scope, what is the “right size” for this investigation? This includes an assessment of the seriousness of the alleged misconduct and the possible consequences for the parties, as well as the extent to which time and resource constraints should impact. • How thorough is thorough enough? This question is pervasive from the very inception of the investigation to its completion, with every decision that the employer and the investigator makes. • How can I demonstrate empathy towards a distressed witness in interview, without indicating bias or giving the witness the false impression that I have decided to accept their evidence? • My decisions as an investigator affect individual employees and other stakeholders, and I also have professional obligations to the employer (whether I am in-house or an external investigator), and possibly to my profession. Whose interests do I take into account? How do I balance or prioritise those interests when they compete? When questions such as these arise for you, pause and reflect. Think through the consequences, pros and cons of the different courses of action. Talking about ethical questions with a colleague is good way to test your thinking, identify any blind spots and get a fresh perspective. Key points • Apply the golden rules to ensure that your investigation and fact-finding are thorough, reliable and defensible: natural justice and procedural fairness. • Provide appropriate notice of the allegations and the possible outcomes of the investigation to the respondent.

• Consider your own impartiality (lack of bias towards either party or any participant), and manage any perceptions of bias or conflict of interest very carefully. • Always be diligent and as prompt as you can be in the circumstances. • Ask for the participants to respect the confidentiality of the process, and explain what this means in the context of a workplace investigation. • Make your findings of fact on the balance of probabilities and base it on the evidence you have collected. • When ethical questions arise, work through those questions carefully, taking into account various sources of your ethical duties.

Footnotes 8

Association of Workplace Investigators. (2019) Guiding Principles for Conducting Workplace Investigation, 3rd ed. (St. Paul, MN), available at cdn.ymaws.com/www.awi.org/resource/resmgr/files/publications/AWI-Guiding-PrinciplesBroch.pdf, accessed July 2020.

9

Available at www.lawcouncil.asn.au/policy-agenda/regulation-of-the-profession-andethics/australian-solicitors-conduct-rules, accessed July 2020.

10

Available at vpsc.vic.gov.au/ethics-behaviours-culture/employment-principles-and-standards/, accessed July 2020.

11

See, for example, Public Service Commission. (2018) Managing Workplace Investigations: A Practical Guide for the Queensland Public Sector (Brisbane: State of Queensland (Public Service Commission)), available at www.forgov.qld.gov.au/documents/guideline/managingworkplace-investigations-practical-guide-queensland-public-sector, accessed July 2020.

12

Hayes v State of Queensland [2016] QCA 191.

SECTION 2 The Roles, Rights and Responsibilities of the Participants in Workplace Investigations Editorial information “With great power comes great responsibility.”Voltaire

Chapter 6: Who Should Investigate? Qualities of a good investigator

¶6.1

Choosing, appointing and instructing an investigator ¶6.2 Powers and responsibilities of an investigator

¶6.3

Editorial information Once it is clear that an investigation is required, the organisation should give careful thought to who should conduct the investigation. The same investigator is not going to be right for every case. Conflicts of interest, past involvement with the parties, workload or other factors might preclude you from conducting certain investigations. Sometimes more than one investigator is needed for highly complex or time-pressured investigations. The seniority or position of the complainant and respondent may dictate who in your organisation is best qualified to take on the role. Think carefully about whether you have the independence, perceived impartiality, time and capacity, before you start to investigate.

¶6.1 Qualities of a good investigator A good investigator will have the confidence, knowledge and skills to achieve the following. Communicate • Listen, interview and communicate effectively. • Manage the investigation so that the parties understand the investigation process, and have confidence in the integrity of the investigator and the process. • Keep parties informed and be available to answer questions. Think • Think critically. • At all times, apply common sense and logic, and be objective and rational in drawing conclusions. • Process and rapidly respond to new information, adjusting the plan as necessary. • Obtain assistance from others (including lawyers and other experts) when necessary. Judge • Evaluate conflicting evidence and judge credibility. • Be as objective and impartial as you can when making judgments, even if they might affect colleagues’ professional and personal interests. • Make findings of fact, on the balance of probabilities, and based on the evidence collected. Apply policies and procedures • Understand the organisation’s relevant policies, procedures, codes, as well as any special

requirements of privacy and surveillance laws. Maintain an impartial position • Be unbiased, impartial and non-judgmental. Even if there appears to be strong evidence against the employee at an early stage, the allegations against the employee may be found to be completely or partly unsubstantiated at the conclusion of the investigation. • Make your findings independently and fearlessly, based on the evidence collected, even where others have tried to influence the outcome improperly. Be fair • Abide by principles of natural justice. • Conduct a procedurally fair process. • Be empathetic, while maintaining a professional distance. It is possible to be compassionate to the parties at the same time as maintaining your impartiality. • Follow the steps in the organisation’s policies and procedures. • Treat all participants consistently and equally. Be strong • Deal with criticism and challenge. • Manage participants who attempt to derail the process, who delay unreasonably or who are not participating in the process in a constructive way.

¶6.2 Choosing, appointing and instructing an investigator An organisation wishing to conduct a procedurally fair and timely investigation to support informed decision-making has a number of choices in deciding who should conduct its investigation: internal management or HR staff, external consultants, in-house lawyers or external lawyers. Given the high importance which the courts attach to procedural fairness, the paramount considerations should be that the investigator is fair and impartial and is perceived by all participants to be free of bias, and has the requisite skills and understanding to apply a fair process. The decision may also affect whether the investigation report attracts legal professional privilege or not. Ideally, you should consider this issue before the investigation begins. (See below for information about when investigation reports and records of interview may be excluded from disclosure in later legal proceedings because they are privileged.) Using internal staff as investigators Workplace investigations are often conducted by human resource professionals, risk and compliance experts, and in-house legal counsel as well as line managers and others. Workplace investigations are multi-disciplinary processes which draw on ethical, legal and human resources principles. It is entirely appropriate for in-house service providers and line managers to investigate misconduct, but it does require them to understand and apply the legal principles which inform and underpin the investigation process. Internal managers, human resources staff, in-house lawyers and risk and compliance staff are usually the people who know the most about the organisation’s procedures and policies, and understand the particular operations and culture of the workplace. Internal investigators can usually commence the investigation quickly, and they need little time to get up to speed. It can sometimes be more comfortable for the participants to talk with a colleague than an external consultant, as the process feels less intimidating. Internal investigators are often best placed to make decisions on the appropriate resources and time which should be spent on a particular investigation. Not all investigations are the same, and internal

investigators are often in an excellent position to identify the resources available, likely complexity and the risk to the organisation posed by the allegations that need to be investigated. Perceptions of bias The main drawback with in-house investigators is perceived bias. When it comes to conducting workplace investigations, the carefully nurtured internal relationships needed for working as an effective internal human resources, compliance or legal professional can actually prove a disadvantage. The internal investigator may well have already assisted the parties with the matters in dispute, given advice, or advised a related party (such as the manager) about managing related issues in the team. They may also have or be perceived to have allegiances with certain individuals in the workplace which affect their impartiality. If a line manager is to conduct the investigation it is almost certain that the manager will know the participants, will have participated in other managerial processes (such as performance management or promotional decisions) in the past and possibly will have socialised with them. A manager or internal service provider may also have been involved in a process, such as a re-organisation, which forms the context of the complaint to be investigated, or dealt with one of the parties as a “repeat participant” in past cases. Case example In Keiko Adachi v Qantas Airways Limited [2014] FWC 518 (10 February 2014), a Qantas manager who dismissed the employee carried out the investigation in good faith, however, his investigation “reached conclusions that were not available to him upon the evidence”. Specifically, the existing long-standing relationship between the investigator and a witness led the investigator to accept that witness’ evidence as honest and more persuasive than 12 other cabin crew members’ accounts that did not corroborate the allegation.

Internal staff must therefore be careful to ensure that their previous interactions with the complainant, respondent or key witnesses do not place them in a position of conflict or perceived bias. Maintaining impartiality, both actual and perceived, is crucial to the success of any investigation. If possible, when using an internal investigator, try to use a staff member from a different organisational branch or interstate office, to ensure a sufficient impartiality towards the parties. It can be particularly risky for a Manager or HR professional who has previously been heavily involved dealing with an investigation into a previous complaint against an employee. In these circumstances, the HR professional or manager opens themselves to allegations that they are unable to conduct the investigation in an unbiased way, because the respondent employee “has form”. Ensuring internal investigators understand the principles that apply to the case The role of the in-house investigator in an investigation is to judge the allegations and evaluate whether staff have adhered to the organisation’s policies. As such, the in-house investigator should not normally be required to assess breaches of the law, but rather of breaches of policy. Where policies are not in place, there may be an additional expectation on the investigator to evaluate conduct against standards and rules set out in the law. The absence of written policies reflecting legal minimum requirements is a significant (and unwise) risk for the employer. This is because even if the investigator is sufficiently knowledgeable to assess proven conduct against legal definitions, it is not usually reasonable to assume that each employee will likewise know the appropriate minimum legal standards applicable in their workplace. In this situation, if your organisation disciplines an employee for conduct deemed to be “illegal” which is not properly covered by the policies, the employee might reasonably rely on a defence of ignorance. If you, as the in-house investigator, believe that your organisation’s policies do not fully reflect the applicable laws, as a first step you should take action to revise or supplement your organisation’s policies. Separation between the roles of Investigator and Decision-Maker Another reason some HR managers choose not to investigate is to preserve the ability to make

disciplinary decisions about the parties later. Generally speaking, if you must make the decision as to whether discipline or termination of employment is warranted, we recommend that you do not also conduct the investigation. The reason for separating these roles is to avoid any claim by the parties that the investigation was skewed to achieve a predesigned outcome. A perception by a respondent that “the whole process was designed to get rid of me” may mean that your investigation is open to challenge on the grounds of perceived bias. If you can’t avoid taking roles of both investigator and decision-maker about the disciplinary outcome, explain to the parties that you will later make a decision about any disciplinary consequences, but that you will determine the facts impartially first. Alternatively, the organisation might consider appointing an external investigator who can conduct the investigation, and provide it with their “arm’s length” findings so that the decision-maker can make an informed and defensible decision based on those findings of fact. Dealing with “interesting” issues outside of the scope of the investigation A difficulty faced by internal investigators is what to do with all of the “interesting” issues that arise in a workplace investigation that are outside the scope of the investigation. You might discover all sorts of concerns that come to light once you start to delve into a complaint and interview the parties and review documents. The challenge for internal investigators is not to become distracted by the allegations or identification of systemic issues when conducting the investigation. The allegations being investigated form the scope of the investigation and other concerns raised should not influence your findings. If you do come across systemic concerns or further complaints in the process of investigating the allegations within scope, you’ll need to make sure that they are dealt with under an appropriate policy or procedure, or that they are passed back into the most relevant area of the organisation. Time, resources and skills to investigate Think carefully about whether you have the time and skills to conduct the investigation. Investigations can be time-consuming and stressful. The reputational stakes can be high when you are investigating allegations against senior staff. Complex investigations can go on for months and involve many hours of interviews, site visits, consideration of documentary evidence and so on. In-house investigators with experience of handling complex misconduct cases are rare, particularly where legal, compliance and risk complications might arise. Once an investigation is started, it can be very difficult to hand over to another person to complete. This brings with it some other risks such as delay, difficulties the new investigator will have assessing credibility of witnesses they did not interview or a loss of confidence in the thoroughness or integrity of the process by some or all participants. If you already have a busy workload or you have leave planned during the next month, another investigator may be preferable, or a trusted assistant (such as a colleague with excellent administrative skills or legal skills) can help you to manage all the evidence and even to analyse voluminous data. The obligation on the employer to take prompt action in response to a complaint, and on the investigator to complete the investigation without undue delay, means investigation is a dedicated activity, and not a task that can easily be fitted around existing commitments. Case example In Duncan v Bluescope Steel Ltd [2013] FWC 8142, an employee was on his lunch break at a steel mill when he failed to respond when a gas alarm went off. Although the employee was one of a number of workers on duty at the time the alarm sounded, he alone was dismissed for serious misconduct. He successfully applied for unfair dismissal, with the Fair Work Commission finding that the investigation was seriously flawed, due in large part to the inexperience of the operations manager who had undertaken the investigation. The investigator’s failures included: • failure to ask obvious questions of witnesses • lack of consistency in treating participants as witnesses when they were also present during the incident, and • reliance on witness evidence despite the witness being previously found to be unreliable.

Managing investigations against senior staff Internal investigation of senior employees can be a particularly thorny problem for internal investigators. The internal pressures around cost, time and extent of the investigation are exacerbated when the investigation is looking at the conduct of a person who can influence the budget, resourcing, relationships or indeed career trajectory of a less senior in-house investigator. There may also be concerns that internal investigators are aligned with the reputation of their organisation and may be so influenced by the negative impact of any adverse finding of an investigation that they cannot hold the required level of independence to conduct an unbiased investigation. Further discussion around investigating allegations against very senior employees can be found at page 93. Legal professional privilege To enable lawyers and their clients to have open and frank communications, and for clients to keep confidential the contents of the legal advice they receive, “legal professional privilege” (LPP) applies to those communications and advice. LPP protects those communications and advices from later being produced in court. More specifically, LPP protects from disclosure, confidential communications between lawyers (including in-house lawyers) and clients that are made for: • the “dominant purpose” of giving or receiving legal advice, or • providing services in relation to existing or anticipated litigation. LPP also attaches to communications between a lawyer and a third party (for example, an external investigator whom the lawyer has engaged to conduct a fact-finding investigation), when the communication meets the dominant purpose test. In the United Kingdom, the High Court held that transcripts or notes of interviews in workplace investigations are not privileged, because the interviewee was not the client of the lawyer giving the advice.1 To date, Australian courts have not taken that narrower approach to LPP, preferring to hold that LPP can extend to: • communications between a lawyer for a client and a third party (such as an investigator), provided the communication meets the dominant purpose test (Pratt Holdings Pty Limited v Commissioner of Taxation (2004) 136 FCR 357), and • investigations carried out by lawyers to enable them to advise a client on legal risk and proposed course of action (AWB Limited v Cole (No 5) (2006) 155 FCR 30, 49). The particular circumstances of each case, however, will determine whether privilege applies. For example, Australian courts have taken differing approaches about whether lawyers’ notes of interviews of witnesses are protected by privilege or not.2 In an investigation context, where an organisation believes that one of the parties may later engage in legal action about the matter, or the investigation is initiated by the lawyer to inform the lawyer’s legal advice to their client, LPP may apply to the investigation (including all documents created as part of the investigation). Simply involving lawyers in conducting or instructing in the investigation will not, however, necessarily be enough to confer privilege on communications about the investigation. In each case, the issue will be whether or not the particular communication was for the dominant purpose of providing legal advice, or provision of legal services in connection with existing or anticipated litigation. Some key steps to consider as an investigator, to protect LPP include: • The investigator works to the instruction of a lawyer (internal or external) from the very start of the investigation. • The investigation is conducted solely for the organisation’s lawyers in order for the lawyers to give legal advice to the organisation and/or prepare for anticipated litigation.

• All communication between the investigator and the employer is channelled through the lawyer, identified “Subject to legal professional privilege”, and prepared for the sole purpose of legal advice or to prepare for litigation. • Aside from the provision of legal advice or in anticipation of legal proceedings, there should be no other purposes of the investigation, as mixed purposes will often cause a claim of LPP to fail. • Interviews, and the notes of interview taken, should be identified as being for the purpose of legal advice or in connection with actual or anticipated litigation, and the witnesses informed of this. • Care is taken to treat all communications as strictly confidential because inadvertent waiver of LPP will occur due to non-confidential treatment of the communications. If the matter is serious or legal action of any sort is possible, or if the organisation is considering getting legal advice in relation to the case, talk to your lawyer before any investigation is commenced. If you commence the investigation in the absence of instruction from the organisation’s lawyers, LPP cannot be “backdated” or applied halfway through. Steps must be taken very early to lay the foundations for a claim for LPP, as the scope of privileged material is narrow and it can be waived inadvertently. As demonstrated by the different results in the cases below, there are complex legal issues which can affect the application of LPP to investigations, which are beyond the scope of this book. We recommend that, if in doubt, you seek legal advice. Case examples In two cases in the Fair Work Commission, the employer DP World successfully maintained LPP over investigation reports in separate legal proceedings: Bowker and Ors v DP World and Ors [2015] FWC 7887; Kirkman v DP World Melbourne Ltd [2016] FWC 605. In both cases, DP World had requested its lawyers to engage a third party to conduct an investigation into the alleged bullying conduct of an employee, and to produce a report afterwards. In later unfair dismissal proceedings, the employee had sought access to the investigation report, on the basis that LPP had been waived. DP World refused access on the basis that the reports were subject to LPP, which had not been waived. The Commission found that in each case the investigation report was protected by privilege, because it had been created for the dominant purpose of assisting DP World’s lawyers to provide legal advice to DP World. DP World had not waived LPP either because (1) the findings of the report were not related to the proceedings or the employer’s defence, or (2) in the later disciplinary proceedings DP World did not rely solely on the report or disclose specific findings in the report (but rather gave the employee the opportunity to respond to the allegations). In Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517 the issue of LPP came up in the context of a claim of adverse action by an employee, Mr Bartolo, against his former employer, Doutta Galla Aged Services Ltd. The employer had dismissed Mr Bartolo for misconduct after an investigation was undertaken by its external lawyers. The subsequent report was provided to the Board, which made a recommendation to the CEO to dismiss Bartolo. In the proceedings Mr Bartolo requested access to the investigation report on the basis that it contained the reasons why he was dismissed, as the “state of mind” of the employer. The Board claimed the report was subject to LPP. In an adverse action claim, the onus is on the employer to demonstrate that the reasons for the actions were not prohibited reasons. As a result of this, the employer needed to disclose the reasons for the dismissal of Mr Bartolo (its ‘state of mind’ at the time), which in turn meant relying on the reasons set out in the investigation report that had led to the CEO dismissing the employee. While the FCCA found that the dominant purpose of the investigation report was to provide legal advice to Doutta Galla Aged Services Ltd, it found that LPP in this case had been waived. This was because once the employer’s state of mind became relevant to its defence to adverse action, this became inconsistent with maintaining the confidentiality of the privileged advice, and it was unfair not to disclose it.

More recently, in Gaynor King [2018] FWC 6006, Commissioner Wilson revisited the principles from Sharon Bowker & Ors v DP World Melbourne Limited & Ors [2015] FWC 788, and held that, in relation to whether the dominant purpose of the investigation report to obtain legal advice or legal services in relation to a proceeding: “With the background referred to; the fact that the City of Darwin has not put forward with any particularity the legal advisory purpose held by commencement of the investigation report; together with the fact that no anti-bullying application was made to the Commission until well after the report had been completed leads to the conclusion that the dominant purpose of the investigation was not to obtain legal advice or legal services in relation to a proceeding. From what is before the Commission, it seems unlikely that this was even its primary or substantial purpose. What is evident

from the material before the Commission is that the dominant purpose of the investigation was to inquire into Ms King’s complaints; to test if its Code had been breached and if so, to hold the transgressors to account”. Using lawyers as investigators Strictly speaking, considering this issue solely from a procedural fairness perspective, there is no rule that an organisation’s in-house or external lawyer may not conduct the investigation. However, this can damage the in-house or external lawyer’s ability to advise the employer in future, if the employer wishes to maintain procedural fairness beyond the life of the investigation itself. Where those same lawyers who conducted the investigation are later involved in acting for the organisation — for example, to defend an unfair dismissal brought by the employee whose actions were investigated by those lawyers — then a perception of bias will likely arise. The case below demonstrates that the employees who are party to the complaint may feel a justifiable sense of grievance in these circumstances, stemming from the lawyer’s primary role which is to defend the employer’s actions and minimise its legal risks. The employee quite understandably doubts the lawyer’s independence. Case example In Perananthasivam v Telstra Corporation Limited [2007] FCA 1584, Justice Sackville was critical of Telstra and its lawyers for a “socalled independent investigation” into an employee’s allegations of bullying. He said that Telstra’s decision to use the same lawyers to investigate an employee’s allegations of bullying and subsequently oppose that same employee’s unfair dismissal and discrimination claims in the Federal Court was not particularly sensitive. It resulted in a justifiable sense of grievance for the employee.

To avoid a similar outcome, we recommend using either an in-house investigator or an external investigator — not the organisation’s own external lawyers — to conduct the investigation, in case the organisation later needs advice or defence of the organisation’s decision-making. The external investigator can be instructed by the employer’s lawyers at arm’s length and retain their independence. This preserves the organisation’s ability to continue to seek legal advice from the lawyer and defend its decision-making at a later time. Broader and inter-connected perspectives of employee well-being and workplace culture are at play here too. Since the Perananthasivam v Telstra decision in 2007, there has been increased focus on the employer’s responsibility to look after the wellbeing of all employees who participate in an investigation (see page 159). Methodologically speaking, we note the importance of the investigator building an effective rapport with each interviewee, putting each of them at ease and being in an interview environment where the employee can feel comfortable and trusts the process. The visible involvement of lawyers might unnecessarily increase the stress levels of the employees participating, particularly if they are expected to attend the formal offices of a law firm for interviews. Many employees perceive the presence of lawyers as indicative of a serious incident or even crisis. Using external consultants to investigate External investigators may be preferable in the following situations: • Independence — there are no internal staff members with sufficient impartiality from the case and from the parties, for example, the allegations involve executive staff or members of the board, and there is a possibility that an internal investigator may be intimidated or conflicted. • Speed — the matter will be time-consuming and internal staff may have difficulty completing this activity in a prompt manner. • Bias — HR or internal staff have already been involved in managing internal conflict or previous allegations, or advising a party in relation to related matters, and are likely to be perceived by either of the parties as biased.

• Credibility — the matter that has arisen is serious and has the potential to lead to serious disciplinary action or litigation, so the organisation needs to be able to demonstrate that it responded to the matter with independence and objectivity. • Skills/Experience — the organisation does not have staff with experience in conducting investigations. • Work priority — the organisation prefers its own staff to focus on their normal tasks. • Legal professional privilege — where the organisation is seeking legal advice or litigation is possible, engaging external investigators via the organisation’s lawyers is prudent. If you do instruct an external investigator, Chapter 9 of this book explains how best to work with the external investigator. Do you need special training or a licence in order to conduct a workplace investigation? In Australia, state laws contain slightly different rules about whether investigators need to be licensed in order to conduct investigations in workplaces. In most states, private investigation licences can be obtained, usually on application to the police through the security licensing division. Eligibility criteria include a clear criminal history, referee checks and thorough checks of personal identification. Some states also require a training course is undertaken, such as a Certificate III in Investigative Services (offered by some Registered Training Organisations). Licences can be obtained for an individual investigator (sometimes called an “operator” or “inquiry agent”) and for investigation businesses (sometimes called a “master licensee”). Note that in the legislation listed below, employees of a business that is not a private investigation business (such as a human resources manager employed in a manufacturing business) are not required to be licensed. State

Legislation

ACT

ACT does not require private investigators to be licenced.

NSW

Commercial Agents and Private Inquiry Agents Act 2004 (NSW)

Commercial Agent and/or Private Inquiry Agent (CAPI) activities including:

Commercial Agents and Private Inquiry Agents Regulation 2017 (NSW)

– surveillance of people – investigation of people.

www.police.nsw.gov.au

Commercial and Private Agents Licensing Act 2001 (NT)

An “inquiry agent” who is a person that for monetary or other consideration:

Licensing NT

NT

Who must have a licence?

Licensing body

New South Wales Police — Security Licensing and Enforcement Directorate

Commercial and Private – obtains or provides nt.gov.au Agents Licensing Regulations information on the personal 2001 (NT) character, actions, business or occupation of a person – obtains evidence for a legal proceeding. QLD

Security Providers Act 1993 (Qld) Security Providers Regulation 2008 (Qld)

A private investigator is a person who, for reward: (a) obtains and gives private information about another person, without the other person’s express consent, or (b) carries out surveillance for

Queensland Department of Justice and Attorney-General Office of Fair Trading Industry Licensing Unit www.qld.gov.au

obtaining private information about another person, without the other person’s express consent. SA

Security and Investigation Industry Act 1995 (SA)

An “investigation agent” which South Australia Police is a person who performs one or more of the following functions for fee or reward:

Security and Investigation Industry Regulations 2011 (SA)

– obtaining or providing www.police.sa.gov.au (without the written consent of a person) information as to the personal character or actions of the person or as to the business or occupation of the person – obtaining evidence for the purpose of legal proceedings (whether the proceedings have been commenced or are prospective).

TAS

Security and Investigations Agents Act 2002 (Tas)

“Inquiry agents” who obtains or provides information on another person about:

Security and Investigations Agents Regulations 2015 (Tas)

– the personal character or actions of any person

Consumer, Building and Occupational Services, Tasmania www.cbos.tas.gov.au

– the business or occupation of any person – getting evidence for the purpose of legal proceedings – searching for missing persons or employing someone to do so. VIC

Private Security Act 2004 (Vic) Private Security Regulations 2016 (Vic)

WA

Security and Related Activities (Control) Act 1996 (WA)

A person who on behalf of Victoria Police Security another person is employed or Licensing Division retained to obtain and furnish information as to the personal www.police.vic.gov.au character or actions of any person or as to the character or nature of the business or occupation of any person or alternatively be employed to search for missing persons. An investigator is a person Western Australia Police who, for cash or other reward: Force Licensing Services (Security)

Security and Related Activities (Control) Regulations 1997 (WA)

– Investigates the conduct of people or organisations

www.police.wa.gov.au

– Investigates the character of people – Conducts surveillance work in relation to the above …

Qualifications in investigative services exist (primarily the Certificate III mentioned above), and some universities now offer subjects that include the study of workplace investigations in their human resources and law faculties. Unlike mediators, there is no established accreditation process or professional development obligations for workplace investigators. For internal investigations, where a range of skills are useful, most lawyers, risk and compliance officers, human resources staff and managers are able, with knowledge of the investigation process set out in this book, to conduct a sound and defensible investigation without the need for special qualifications. If the investigation relates to fraud, computer misuse, financial impropriety or professional negligence, you may need to locate an investigator with specialist knowledge, or get expert input and assistance with that aspect of evidence collection. For more information about investigations of that nature, Chapter 15 of this book explores the collection and use of digital and financial evidence. The Australasian Association of Workplace Investigators (AAWI) provides opportunities for professional development and networking for investigators, as do some practice-specific organisations (for example, risk, human resources, workplace relations). Worklogic and some other workplace investigation firms offer training programs for those wanting to learn more. Flawed investigations continue to be closely scrutinised by the courts, and the growing body of case law provides a rich source of information and guidance for those wishing to learn more about procedural flaws in workplace investigations and how to avoid them. These cases make it clear that some experience in investigations and skills in assessing evidence will be required by the investigator, whether they are inhouse or external, licensed or not. Case example In Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775, an HR manager’s investigation, leading to dismissal of an employee for assault, was found to be both biased and unfair because: • The investigator was biased against the respondent, exaggerating inconsistencies in her evidence. • Evidence of only one witness was relied upon to corroborate the complaint, while other evidence (that did not corroborate it) was ignored. • The investigator did not investigate counter allegations by the respondent, in the nature of extenuating or provoking circumstances. • The Fair Work Commission noted that the manager’s “inexperience and lack of forensic skills as to the assessment of witness evidence” was a major factor in finding the dismissal was unfair.

Footnotes 1

The RBS Rights Issue Litigation [2016] EWHC 3161 (Ch).

2

French v Triple M Melbourne Pty Ltd (Ruling No. 1) [2008] VSC 547 (privilege protected notes of interview); Stewart v Victoria [2014] VSC 601 (notes of interview were not protected by privilege because insufficient evidence brought to support the claim that the notes of interview were privileged).

¶6.3 Powers and responsibilities of an investigator Powers In general terms, the investigator is empowered by the employer, and only with the consent of the relevant participants, to: • Conduct interviews and ask questions. • Collect all relevant evidence from the parties and the organisation. • Decide which witnesses to interview and what other relevant evidence to collect. • Establish what happened (technically, make findings of fact on the balance of probabilities). • Determine whether any breach of policy has occurred. • Request or direct honesty and confidentiality from participants. Responsibilities The investigator also has responsibilities — ethical, legal, and to minimise risk to the employer and harm to the participants — to: • Afford procedural fairness to the parties. • Ensure the respondent receives the allegations and has adequate time to prepare a response. • Ensure that the respondent is told of the possible disciplinary outcomes of the investigation process before their interview. • Manage the investigation in such a way that the parties understand the process, have confidence in the appropriateness of the investigator and the integrity of the investigation process. • Maintain confidentiality in so far as the investigation process allows. • Keep parties involved and answer their questions. • Obtain assistance, where required, from lawyers or other experts. • Manage conflicts of interest. • Conduct the investigation as promptly as possible. • Collect and consider the available relevant evidence impartially and independently. • Reasonably accommodate any special needs of the participants. • Prepare a clear, defensible investigation report of the investigator’s findings about the behaviour and whether it constitutes a breach of policy based on the evidence collected. With respect to confidentiality, the investigator should: • Only disclose information about the complaint and its investigation to those other employees whom you need to interview as participants for the investigation, and to your instructor. • Reveal to witnesses the minimum amount of information necessary to enable them to provide relevant information (that is, they do not need to be told about all the allegations if they are only witness to one of them). • Take reasonable steps to conduct interviews privately.

• Keep relevant information, emails and documents generated as part of the investigation in a secure and confidential place. • Not disclose any information about the complaint or its investigation to a third party outside your workplace unless a regulatory body (such as WorkSafe) formally requests or compels you to do so, in which case, you may wish to seek legal advice. Key points • Once you have made the decision that an investigation is an appropriate tool for dealing with a workplace issue, consider carefully who is the best person to conduct the investigation. • Investigators must be independent and impartial. • When selecting an investigator, think about what skills are required. Consider whether an internal staff member, lawyer or an external investigator is the best person to investigate in the circumstances. • Give real consideration to the time an investigator will require to conduct the investigation promptly and what time the proposed investigator realistically has available. • If the matter is serious, might lead to legal action of any sort, or the organisation is considering getting legal advice in relation to the case, talk to your lawyer before any investigation is commenced. It may be that legal professional privilege should apply to the report.

Case Study — Yellow Duck Limited — Episode 2: Who should investigate? After reading Sam’s emailed complaint about Marisa (see page 47), you talk to the HR Manager in a different division, Vladimir. He tells you, “I wouldn’t take it too seriously. This is about the fourth time that Sam has made a complaint about people on his team. Every time we look into it, there’s nothing much in it, just his perception that the world is out to get him. He is an odd character, don’t make the mistake of getting caught up in his dramas. It’ll be a waste of time.” Later that day, Vladimir sends you an email with the findings of a previous grievance lodged by Sam that Vladimir investigated. It was not substantiated, and the report stated, “We should consider whether the grievance was brought in bad faith and/or was vexatious.” On the same day, Sam’s line manager, Kristen, gives you an update about how Sam has been performing. She says to you, “Look he is patchy, sometimes up, sometimes down. He seems to have a real problem with taking direction from others. I heard he had a relationship with Marisa which went sour. I’ll keep watching his performance. He is just not getting through the work.” 1. Can you, as HR manager, investigate this matter? Can Vladimir? Can Kristen, as Sam’s line manager? Of the three of you, who is best placed to investigate? 2. In relation to Sam’s allegations against Marisa, what type of investigation do you think is most appropriate: Preliminary investigation; Review with no findings of fact; Full investigation; or Investigation on the papers? Why?

Chapter 7: Rights and Obligations of the Participants Rights of the participants

¶7.1

Reluctant complainants and the right to withdraw allegations ¶7.2 The right to a copy of the investigation report

¶7.3

Responsibilities of the participants

¶7.4

Editorial information Each participant in an investigation has rights and responsibilities, which you need to understand. You must take proactive steps to ensure those rights are protected and the responsibilities are understood and complied with during your investigation process.

¶7.1 Rights of the participants The rights of the participants are based on the principle that investigations must be fair. We now examine what each of these rights means for how you conduct your investigation. The right to “reasonable accommodation” as needed Workplaces reflect the diverse make-up of our society, and include people with various capacities, abilities, skills and needs. Not everyone can comfortably engage in a face-to-face interview, in English, for sometimes over an hour, about possibly stressful subject matter. Part of your job as investigator is to make the process accessible for everyone. In a fair process, it is important that all of the participants in the investigation are able to engage in the process meaningfully. If a participant has a special need which affects how they communicate and participate in the investigation process, you must consider whether and how that special need can be reasonably accommodated. When a participant has a special need, be aware of your own unconscious bias and make sure you do not prejudge their evidence. Don’t assume that a person with special needs is more or less likely to give reliable evidence.

Case example In Sheng He v Peacock Bros Pty Ltd, Wilson Lac v Peacock Bros Pty Ltd [2013] FWC 7541, two longstanding employees at a printing company were dismissed after they had a verbal argument with their supervisor which escalated into a physical fight. They were dismissed for serious misconduct and both lodged an unfair dismissal claim. While the Commission found there was a valid reason for the dismissals it also found that in all the circumstances the dismissals of both employees was unfair. In addition to other flaws in the investigation, it was found that the employer failed to provide the employees an opportunity to have a support person present at the disciplinary meeting, and as they were not fully proficient in English, also failed to provide them with language assistance to ensure they could fully understand and respond to the allegations.

Illness Before or during your investigation, you may suspect that a participant is not well enough to participate. Maybe a participant discloses a medical condition to you during an interview, states that they are stressed and unwell after reading contradictory evidence from other participants, or tells you that he/she is on sick leave. If you know or suspect that the participant is unwell, you need to “reasonably accommodate” any special needs of the participant. “Reasonable accommodation” sounds technical. It’s not really. It’s about: 1. Practically adjusting the way you would usually carry out any part of an investigation.

2. So that a participant with particular needs is able to participate meaningfully. 3. Where this adjustment is within the organisation’s resources. What is a practical adjustment will depend on factors including time, cost, logistics, effect on other participants or on your role as the investigator. If you believe that the investigation process could exacerbate the participant’s illness or cause a risk to their health or safety, we recommend that you take the following two steps before proceeding. Step one — understand the participant’s needs Of course, if you have not been formally told by the participant that they are unwell, you will need to show discretion and tact. Ask whether there are any medical restrictions that you should know about. If there are no restrictions that have been formally directed by a doctor, describe the steps you will be asking the participant to take. For example, explain that you will be organising one or two interviews of up to two hours’ duration, then asking the participant to consider contradictory evidence. These can be stressful processes. Ask the participant whether they are well enough to do those things. If they mention being on medication or subject to limitations on their working capacity on advice from their doctor, ask whether their expected participation is within those limitations. If you fear that the investigation process could exacerbate the participant’s illness or cause a risk to their health or safety, you can ask the participant to obtain a medical certificate from their medical practitioner which confirms any medical accommodations you need to make. It is helpful to ask the participant to seek from their medical practitioner a written certificate that states that the participant is fit to participate in the investigation process, and on what basis. If possible, ask if the certificate can include some specific details about the way the investigation process could be optimally managed given their illness, for example: • The recommended length of the interview with the participant. • The number of breaks recommended during an interview. • Whether communication by you and the participant would be preferable in person, by telephone or in writing. • The participation of a support person at various stages. • Any other specific reasonable adjustments to the investigation process that may assist the participant to fully participate in that process. Not all medical practitioners know what a workplace investigation entails. It can be useful to provide some written material to the participant to give to their doctor. This material should explain the investigation process and what is expected of the participant. It will thus help the doctor to determine whether their patient can participate or not, and on what basis. Step two — reasonably accommodate the participant’s needs Once you receive the medical certificate stating capacity to participate in the process and any suggested accommodation, or advice from the participant themselves, consider whether these suggestions can reasonably be implemented. If a suggested accommodation is logistically possible, and is unlikely to unduly affect the information collected in the investigation or procedural fairness to other participants, then it should be implemented. On the other hand, you may receive a suggestion which is impractical and will significantly disrupt the investigation. For example, a recommendation that the complainant can only participate in the investigation for 30 minutes each week may unfairly delay the investigation from the respondent’s perspective, particularly if there is a complex set of allegations requiring a lengthy interview with the complainant. With any suggestions that appear impractical, have a further conversation with the participant about alternative ways for them to participate that are fair for all participants. In the above

example, it might be possible for the complainant to answer questions in writing first. You could then interview them for 30 minutes to test their evidence and credibility. Case example In Vernham v Jayco Corporation Pty Ltd [2015] FWC 8185, Thomas Vernham had been employed at Jayco for 15 years, but had not attended work since mid-2014. In November 2014, he sent an email to his workers’ compensation caseworker, “I mean what is the worst that could happen, I go ‘postal’ due to psycho social stress and start taking those people that have hurt me!” In January 2015, someone anonymously alerted Jayco to the email, alleging Mr Vernham was suicidal and had made threats to “kill” other people. In response, in February 2015, Jayco summarily dismissed Mr Vernham for misconduct. Jayco claimed that the email contained a threat it “could not ignore”, and that it owed a duty of care to protect the welfare of all its employees. HR understood that “going postal” meant that Mr Vernham would come into Jayco one day and commit “mass murder”. In the Commission, Mr Vernham alleged that his dismissal was unfair because: • he had not been given the chance to respond to the allegations against him, or explain the circumstances he was facing at the time of his sending the email, prior to his dismissal, and • no account was taken by Jayco of the fact that he was suffering from mental health problems and felt depressed and suicidal at the time he wrote the emails, and Jayco were aware of this at the time. Commissioner Anna Lee Cribb of the Commission agreed with Mr Vernham that he had been unfairly dismissed. Her reasons included the following: • Jayco did not give Mr Vernham the chance to respond to the allegations, or the evidence relied upon (no natural justice) and should have done so, especially since the email was sent some three months before the company’s decision to dismiss him. • Jayco made no effort to investigate the allegations made by the anonymous caller, nor to critically and independently examine and consider the evidence, including the phone call. • Mr Vernham’s mental illness should have been considered by Jayco in relation to the emails (as mitigating factors and as a “cry for help”). • HR had a duty of care to enquire about Mr Vernham’s well-being in light of the signs of his mental distress. Between the time of the email and Mr Vernham’s dismissal (three months), Jayco did not contact Mr Vernham, but instead made enquiries of the police and the insurer, QBE. Jayco’s argument, that this was because HR was afraid of dealing with Mr Vernham personally, was not accepted as the OHS needs of its employees did not outweigh Jayco’s duty of care to Mr Vernham, or the need to accord him natural justice.

Whatever you decide about the accommodation of a participant’s special needs, explain it in writing to the participant, including your reasoning. Once you have agreed to reasonable accommodations, it is important to ensure you adhere to them. During an interview, if the participant tells you to keep interviewing, even though they have previously presented you with a certificate stating they can only be interviewed for, say, one hour at a time, do not continue. Explain to the participant that, as you have agreed to the reasonable accommodation requested based on their medical advice, you prefer to comply with that one-hour limit. Case example In East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator [2016] QIRC 101, Mr Anderson successfully claimed worker’s compensation for psychological harm relating to the employer’s response to the complaints against him. Two separate verbal complaints were made against Mr Anderson by his colleagues. The first comprised allegations of sexual harassment, including that Mr Anderson had: told the complainant that “flavoured condoms are on sale, and maybe that would give her something to do in the lunch break”; suggested that she was a lesbian because she received flowers from a female friend; and made lewd comments about her skirt. The second complaint was one of bullying, namely that Mr Anderson had demeaned and sworn at colleagues. Mr Anderson had been with the company for approximately four and a half years, and by all accounts had a clean record. Mr Anderson also had a long term depressive illness which had been managed through medication. The employer responded to the complaints in the following way: • It decided the allegations were serious, and decided to investigate. • A senior manager informed Mr Anderson of the complaints (and the decision to investigate) via telephone, and asked him to attend a meeting to respond to the allegations. • The senior manager then emailed Mr Anderson saying that he had been suspended on full pay pending conclusion of the investigation. The QIRC held that the employer’s decision to proceed to formal investigation was an overreaction, not “reasonable management action”, and that Mr Anderson was entitled to compensation. In particular: • The alleged conduct did not amount to serious misconduct and termination was unlikely.

• The investigation did not take into account Anderson’s prior mental illness (which was known to the employer). • The investigation was also inconsistent with the sexual harassment policy which outlined a less formal approach which should “centre on the resolution of the issue, without deciding fault”. • The way the investigation was conducted would also have “exacerbated” Anderson’s anxiety, including notifying him of the allegations over the phone.

This case illustrates that employers are increasingly on notice that they need to carefully consider and be sensitive to any pre-existing vulnerabilities of an accused employee, before deciding how to proceed. Mental illness Given the prevalence of mental illness in the community generally, you may encounter participants in your investigations who are experiencing or have been diagnosed with a mental illness, the symptoms of which may be exacerbated by taking part in the investigation or its instigating circumstances. Even participants without mental illness may experience a degree of distress because of the events that have led to the investigation, the fact and experience of the investigation itself and fear of its possible outcomes. Part of a fair process is accommodating participants’ needs and making the process accessible to them. In addition to integrating trauma-informed practice into your approach (discussed at length in section “Trauma-informed investigations” at 171) and the other matters referred to immediately above, consider the following: 1. Be aware of the (unfair) stigma in relation to mental illness, which includes not only the explicit or unconscious bias of any participants but also your own attitudes. Regularly and critically examine your own understanding and assumptions, and maintain an open mind: just because someone has a mental illness does not make it more likely that they have engaged in misconduct of any kind. Making this mistake will adversely impact the person with a mental illness and also the quality, accuracy and fairness of your investigation and findings. 2. Don’t assume that you know what is needed to reasonably accommodate a mentally ill or distressed participant. You can thoughtfully consider — and discuss with the participant — how you can make the interview feel as safe and comfortable as possible for them. For example, you can ask the participant about where they would like to sit in the interview room and encourage the presence of a support person. Ask them, “Is there anything else I can do in arranging your interview that would make it more accessible and comfortable for you?”. 3. In the substance of the investigation, if it is potentially relevant, do not avoid the issue of mental illness. While it is important to be empathetic and respectful and to avoid asking re-traumatising questions, if a participant discloses that they have a mental illness or are experiencing mental distress, don’t be afraid to ask direct questions about their experience and needs. Explore, if relevant, how this relates to the factual circumstances or may have impacted on their behaviour. For example, if a respondent explains that their behaviour is a product of their mental illness, you should seek their consent to enable you to contact the relevant medical professionals and obtain the appropriate medical evidence instead of simply relying on the respondent’s assertion. Remember to keep fact-finding (what happened) clearly separate from the mitigating factors for the penalty (whether the respondent was responsible for their behaviour and/or their conduct should be accommodated by the employer). 4. Respect and maintain the participant’s privacy at all times. Ask the participant for their consent to a line of questioning if you are unsure, such as “You have mentioned that your mental health sometimes causes you to need breaks from work. Can I ask you about that?”. Remember: it is possible to be both compassionate and impartial in your decisionmaking.

Hearing-impaired and culturally and linguistically diverse participants Given the cultural and linguistic diversity of modern society, there will be circumstances in which you will need to arrange for an interpreter to enable effective and accurate communication between you and a participant in an investigation. You may also conduct investigations in which a participant is deaf or hearing-impaired, and similar principles apply. In both instances, the role and purpose of the interpreter or translator is to enable the participant to fully participate in providing and commenting on the evidence in your investigation. (If a participant is deaf or hearing-impaired, you may also wish to explore if they would prefer to provide all or part of their evidence, and any responses to contradictory evidence, in writing). A failure to interview a participant because of any perceived or actual barrier in communication, or to fail to arrange an appropriate translator or interpreter, will discriminate against those participants, and will adversely impact the quality and accuracy of the participant's evidence and therefore the investigation as a whole. It is best practice to use a professional interpreter or translator, rather than a colleague or a family member. If a participant proposes to bring a family member or colleague to their interview as a translator, while this offer may seem helpful, you should decline this offer and engage an appropriately qualified, independent interpreter instead, unless there is no other feasible option. This is because a family member or colleague may unconsciously alter the tone or content of what they are translating, in an attempt to show their relative or friend in a more favourable light than the evidence otherwise would (or more assertive, more compliant, more respectful, etc). This can lessen the quality of their evidence. Also, the participant may alter their version of events in order to protect the family member or colleague from hearing unpleasant or upsetting information. Arranging an interpreter is relatively easy. Interpreters can attend the interview via telephone (on speaker) or videoconference, if the interview needs to take place at short notice or their availability is limited. There are many providers of sign language and language interpreter services; see, for example, the Australian Sign Language Interpreters’ Association1 or the Australian Institute of Interpreters and Translators2 has online directories. To arrange an interpreter: 1. identify the language and if relevant, any specific dialect, of the participant 2. consider whether the interpreter will need to be familiar with any specific or technical vocabulary (eg legal, medical or scientific terminology) 3. contact a reputable professional body to request the services of an appropriately qualified interpreter 4. before the interview, confirm with the interpreter that they do not know the participant or anyone else in the investigation, that the interpreter is not a potential witness and that the interpreter has no conflict of interest, and 5. explain to the interpreter before the interview the intended structure of the interview and the types of questions you might ask. This enables the interpreter to prepare for the interview, particularly if they are not familiar with workplace investigations. At the beginning of the interview, so it is on the record, confirm that the interpreter: • is impartial, has no conflict of interest and does not know the participants • undertakes to keep what is discussed in the interview in the strictest confidence, and • will only translate what you ask and what the participant states in response, and will not engage in dialogue with the participant beyond the need to seek basic clarification of an ambiguity. In any face-to-face interview, the interpreter should sit in between yourself and the participant, so that you are directly facing the participant and are in a position to read their verbal and non-verbal cues. Intellectual capacity

In any interview, your communication should be clear, unambiguous and in plain English. Where your participant has an intellectual impairment, then you will need to proceed even more clearly and at a pace which enables the participant to participate. You will also need to use simpler questions and language than usual. This approach should give the participant a reasonable opportunity to understand the questions and give reliable responses. As a general rule, ensure that the participant has a support person if they have a special need, unless they explicitly refuse. A participant with an intellectual disability will usually have a guardian or advocate who can be present with them at interview, or arrange for another support person. Children With any child participant, their age, level of development and the subject matter of your investigation will together influence the way you approach the interview and the types of questions you ask. We recommend that you always have a parent, guardian or other support person present. You should also ensure that you have communicated with the parents or guardian of the child (ideally confirmed in writing) what the investigation is about and what you intend to ask the child about, as well as providing the usual information about the investigation process. In terms of a child’s ability to understand questions, you may wish to consider, depending on the age of the child, spending time building rapport and observing the child’s emotional and language comprehension, prior to commencing the actual interview itself. The nature of memory in children, the skills required to obtain meaningful evidence from children during interview, and deciding what weight to give their evidence are all complex matters. These issues and have been closely examined in a Report following the Australian Royal Commission into Institutional Responses to Child Sexual Abuse.3 Chapter 8 of this Report sets out a number of “best-practice” interviewing protocols aimed at facilitating memory in children. One of these, conducting multiple interviews with a child shortly after an event, with short gaps, is considered controversial in some circles. The others are less controversial and, while the report deals with the specific issue of child sexual abuse, other protocols are considered best practice when aiming to elicit more accurate memories of events in children in investigations. Having regard to the existing research, including the Report of the Royal Commission, the following are considered best practice in interviews with children generally: • Use a comfortable room (as opposed to a neutral room) and provide breaks throughout the interview. • Explain the purpose of the interview and establish ground rules. These will include emphasising that it is important to tell the truth, urging the child not to guess, advising them to respond “I don’t understand” or “I don’t know” when appropriate, and to correct facts the interviewer gets wrong. • If possible, encourage the child to “practice” being interviewed and providing narratives, before the interview itself. • Use open questions to encourage the child to tell their whole story spontaneously, including about context and physical environment, without interruption (narrative-based approach), before proceeding to more specific questions (which may interrupt a child’s thought process). • Ask open questions about context. Children under five may not understand that the investigator does not have all the context and may not provide this without being asked open questions about the context. • Use open-ended questions that start with “Tell me …” or “Can you tell me …” or remarks like “uh-huh” that encourage the child to continue. Open-ended questions support the child in providing an elaborate, complete and coherent account of what happened. Open-ended questions may also be

“breadth questions” (“What happened next?”) that encourage the child to continue the narrative through to consequences or resolution, or they can be “depth questions” (“Tell me more about …”) to elicit more details. • Avoid closed questions (can be answered “Yes” or “No”), and avoid phrasing your questions in any way that might, inadvertently, suggest a “right response” from the child’s perspective (that is, leading questions). • Avoid repeated questions on the same topic, which may lead children to infer that their previous answer was incorrect — as a result, they may doubt and change their answers, leading to inaccuracies and inconsistencies in their responses. • Include a support person or guardian as intermediary in order to ensure the comfort of the child, and that the interviewer is asking age-appropriate and sensitive questions. • Accommodate individual differences, including appropriately using physical props and other nonverbal memory techniques (eg drawing, touch) and different lines of questioning. Children with a physical or intellectual disability will also require a support person who understands their communication styles and abilities, for example, a classroom aid. All states and territories in Australia have implemented schemes with the aim of protecting children from sexual or physical harm by ensuring the people who work with, or care for children, are subject to a screening process. The relevant regulatory authority in each jurisdiction issues variously named “Child Checks” or “Working with Children Checks” upon application. Each jurisdiction has a slightly different scheme handled by a range of regulatory authorities so check that you comply in your jurisdiction before interviewing a child in a workplace investigation. It may be that you already possess the relevant check if you are working or volunteering with children in your profession or organisation, such as a school or sports club. You should check that you abide by all relevant laws and protocols at your organisation. Do not commence an investigation in which children will be witnesses before having a valid “Child Check” or “Working with Children Check”. The application process can take some time. As part of your investigation report, you may need to discuss the manner and type of information you have obtained from any of the participants falling into the above categories and what you did to reasonably accommodate their needs. Chapter 17 discusses how to weigh up the evidence where the participant has a poor memory or the evidence obtained from them is not very clear. The right to bring a support person Any individual whom you interview — complainant, respondent or witness — is entitled to have a support person present with them at the interview. A support person gives emotional or practical support to the participant being interviewed but does not act as the person’s advocate during the interview. There are also legal reasons for offering this support. One of the considerations the Commission must consider in deciding whether a dismissal was “harsh, unjust or unreasonable” is whether there was an unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal (s 387(d) of the Fair Work Act 2009 (Cth)). While this does not impose a legal obligation on the employer to proactively offer a support person to a respondent during interviews, it is generally seen as “best practice” to do so (and to other parties and witnesses as well). If an employee is not offered a support person, and they are instructed not to discuss the matter with anyone prior to the investigation interview, it may be found that that they are, practically, denied a support person: Camilleri v IBM Australia Limited [2014] FWC 5894. When arranging the interview, inform the participants that they have the right to have a support person present with them during the interview. They may need a few days to arrange to have someone with them and it is reasonable to accommodate that request. The right to a support person is usually understood to be limited to one person, however, sometimes a

complainant or respondent will want a friend for personal support, and also, a person who is experienced in the investigation process such as a union representative to be present. There is no strict rule that a person may only have one support person and if you are comfortable to proceed and there is no risk of intimidation or other procedural issues, such as increased risks of breaches of confidentiality because there are two support people, you may consent to that request. If you do agree to allow one of the parties to have two people present, it is prudent to offer the same conditions to the other party, in an effort to ensure all parties are treated equally. Who can be a support person? A support person can be anyone whom the participant thinks can provide them with support — a friend, partner, family member, lawyer, union representative or colleague — so long as the support person is present in the role of support person (not as an advocate) and their presence won’t influence the person’s evidence. It is very useful to ask the participant before the interview whom they intend to have with them at interview as a support person. This enables you to check whether the proposed support person is appropriate or not. Be careful, however, that if you decide that the chosen support person is inappropriate, that the employee has a reasonable opportunity to select another suitable support person, and that this choice is theirs. For example, a party sometimes proposes to bring their partner as a support person to their interview, and then suggests that their partner is also a relevant witness because their partner saw how upset they were on the night of the incident in question, when they got home from work. Case example In Leanne Trembath v RACV Cape Schanck Resort [2017] FWC 4727 (13 September 2017), an unfair dismissal case, the FWC (Commissioner Nick Wilson) found that an HR manager should not have allowed the RACV Cape Schanck Resort manager to be put forward as a possible support person for an employee who was facing potential dismissal. This came about because the employer objected to the preferred support person of the employee, due to an alleged conflict of interest. While the Commission did not find that the employer had unreasonably refused to allow the retail supervisor to have a support person present at the meeting (and upheld the dismissal), it was extremely critical of the judgement of the Human Resources department in this case, as the resort manager was ultimately responsible for acting on the organisation’s behalf in dismissing the employee: “By no means could he be regarded as someone who would give [the retail supervisor] ‘support’ in any of the capacities implied by that word; whether as an advisor, counsellor or representative … If there was to be a conflict of interest with [another employee] attending as the support person for [the retail supervisor] then that conflict of interest would pale into insignificance with the attendance of [the resort manager] in that capacity.”

The following people are not appropriate as support persons, and an alternative support person should be selected: • A manager who will ultimately be responsible for acting on the organisation’s behalf in considering discipline of the employee (as in the Trembath case, above). • Someone whom you consider may inhibit the interviewee from talking candidly. For example, if the participant intends to bring a family member, check that they will be comfortable to provide their evidence by telling them what you will be asking about (eg sexual conduct, drug-taking …), and check that they are not bringing that person to the interview because they think they should. The support person should not be someone who is going to limit the information that a participant will be willing to provide. • Someone the investigator knows personally or is related to. • A potential witness in the investigation. This is because their own evidence may be influenced by what they hear in the interview. Should a participant insist on having a person as their support person whom you suspect might also be a witness, and you cannot convince them to use another person as their support, then interview the support person first.

• You may also wish to avoid complainants or respondents using a very senior staff member as a support person in case that is perceived by others as a statement of improper influence or organisational alignment. Avoid accepting a support person with whom you, as investigator, have a personal connection. It is best that you are seen to be independent, and not personally connected with any of the participants in an investigation and that extends to support people. It is advisable to check if there is any policy prohibition within your organisation as to who may be used as a support person, or any particular right under an enterprise agreement or award. It may also be contrary to discrimination law to refuse the employee the attendance of a support person who is a union representative, as opposed to someone who is not a union representative. Note, however, that the organisation’s policy may specify that they are able to attend only in the capacity as a private individual and not in the capacity of a “representative”. The support person’s role A support person’s role is exactly that: to give emotional or practical support to the participant being interviewed. A support person is not an advocate for the participant, and does not speak for the participant, intercede on their behalf or put forward arguments in the participant’s favour. The support person should not prompt the participant with answers or interrupt the interview for any other purpose other than to provide support to the participant (eg to suggest that they take a break). The purpose of the interview is to obtain evidence from the witness about what happened, in their own words, rather than hear from the support person who did not witness the events themselves. At the start of the interview (or if possible, before the interview), confirm with the support person (irrespective of whether they are a lawyer, union official, friend or colleague), that they are present in their capacity as a support person and not as an advocate. If the party (or support person) wishes to raise concerns or discuss roles, it is best to deal with these at this point. The support person must agree, prior to the discussion of any evidence, that they are not to: • participate in the discussion • intervene or interrupt while you are asking questions or the participant is responding • provide responses on behalf of the participant • prompt the participant in any way, or • breach confidentiality. Case example The case of CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 highlights the importance of ensuring that not only is the employee participant aware that they must keep that process confidential, but employers and investigators should also ensure that their support person is also aware that the obligation to keep matters confidential extends to them and that the employer can take action against a support person who is an employee, if they breach that confidentiality. In this case, employee Leighton sent an email to colleagues containing written information provided in confidence during the disciplinary process, after the meeting he had attended as support person for a colleague (Arnold). Before considering whether the employer’s decision to issue Leighton with a final written warning was unnecessarily harsh in the circumstances, Commissioner David Gregory stated: “Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times.” Leighton had apologised for the unintended breach of confidentiality, and said that he had simply not understood the need for confidentiality. Commissioner Gregory commented that employers are obliged to inform support persons clearly and unequivocally of the importance of maintaining the confidentiality of all information that they learn in that capacity.

It is also useful, at this stage, to assure the support person and the participant that during the interview they can take a break at any time. This includes where the support person wishes to speak privately with

the participant, or, if the participant wishes to obtain advice from the support person in their capacity as a lawyer or union representative. Some flexibility is acceptable here too. Interruptions by support people can at times be useful, for example, where a support person reminds the participant to stay on track or to answer the question posed, or asks the participant if they need a break. It can be helpful and respectful to tolerate some interruptions from a support person where they are genuinely part of the support being offered and are not negatively impacting on the interview or prompting the witness with substantive content. If a support person repeatedly breaches the agreed limits of their role in a way that is disruptive or “leading” the witness, however — eg interjecting, offering their own comments or objecting to your questions — remind them of the limits of their role. Tell them that you will terminate the interview unless they refrain from interrupting the interview again. Alternatively, offer to provide the support person with some time at the end of the interview to make any comments they have, and ask that in the meantime, they refrain from interrupting again and permit the witness to provide their responses to the questions. The right to legal or union representation in interviews Generally, there is no obligation to allow an employee to have an advocate — who speaks on behalf of the witness, and makes submissions or arguments about the evidence and the process — as distinct from a support person, in the interview. Case example The full bench decision of Victorian Association for the Teaching of English v Debra de Laps (2013) FWC 4163 held that employees do not have the right to an advocate at a meeting to discuss performance and misconduct allegations and that it was not procedurally unfair to require the support person to provide support but not to advocate (in that case, the meeting was to discuss performance and put the allegations to the employee, with an opportunity to respond to them at a later date).

The purpose of the interview is for you to give the participant an opportunity to provide information and evidence in their own words, and for you to have the opportunity to ask questions directly of the participant. Your ability to achieve this is disrupted if another person speaks during the interview or answers for the participant. In practice, where a respondent’s support person is also their legal or union representative, the support person may wish to play the role of advocate in real time. As long as this does not interfere with the interview itself, there can be some tolerance of this and a fine balance needs to be struck. You should not deny the participant the ability to have “offline” advice and support from a lawyer or a union representative. This is particularly important when serious misconduct, such as theft or sexual assault, is alleged. If the participant wants to bring a lawyer or union representative to make submissions or arguments in support of the participant’s position, we suggest that you explain your process along the lines of this example to a participant (Priya) and their advocate (Anita): “My goal in the interview is to hear Priya’s recollection of what happened. Of course Priya can have you here, Anita, as her support person and she can take a break to seek advice from you when she needs it. I ask that you not intervene when I am asking questions of Priya.” A good phrase to use is, “I need to hear Priya’s version of events in her own words.” If your organisation’s written policies or procedures allow for an advocate to make comment in an interview, you might add, “Once I have finished and Priya has answered my questions, if there is anything you would like to say or ask as Priya’s advocate, I am happy to hear and record that. Is that clear to you both?” You can also invite a lawyer or union representative to put forward arguments or submissions about the matter in writing, either before or after the interview. The right to reasonable support from the organisation In recent years, concern has grown about the negative impact of the investigation on participants. It

remains clear that conducting a proper workplace investigation of allegations of inappropriate conduct does not breach the duty of care owed by the employer to its employees, even where the investigation is identified as the cause of stress and psychological injury. Despite this, in some circumstances, a failure to provide adequate support to perform their role during the investigation will breach the duty of care. Respondents are as much at risk as complainants. They can experience the decision to investigate and the investigation process as a challenge to their authority and position in the organisation. They can feel embarrassed and ashamed, fear damage to their professional and personal reputation, and feel attacked personally. Research has found that 50% of respondents took one to two weeks off work during the investigation because of anxiety, depression, stress or diagnosis of a specific psychological disorder.4 What support should employers offer the parties during an investigation? Case example In Govier v UnitingCare Community [2017] QCA 12 it was found that the employer sent two insensitive letters to an employee respondent (which failed to have regard to her illness and hospital visit) as part of the investigation process. Ms Govier claimed that her employer had failed in its duty of care to her which had contributed to a psychiatric injury. The court found that an employer’s duty of care does not extend to an obligation to supply a safe system of investigation (including the way the actual investigation steps are taken) or to decisions in relation to matters concerning the contract of employment itself. It was therefore found that although the psychiatric injury (or exacerbation) suffered by Ms Govier was a foreseeable consequence of a lack of reasonable care by her employer, this was not of itself sufficient to justify the creation of a new category of duty of care. Special leave to appeal that decision to the High Court was initially granted on 15 September 2017 and a determination of the scope of any employer duty of care owed to employees when carrying out a workplace investigation was expected in 2018. Special leave to appeal was later revoked in April 2018.

Despite the lack of any final say by the High Court regarding the reach of the employer’s duty of care, what is clear from Govier v UnitingCare Community is that the general duty of care to provide a safe system of work continues, during an investigation, to include: • providing a safe system of work for the conduct of tasks that an employee is ordinarily engaged to perform (as part of their employment) (State of NSW v Paige [2016] QDC 56), and • providing adequate support for an employee during the course of investigation, where a risk of a psychiatric injury was reasonably foreseeable, in the absence of such support (Hayes & Ors v State of Queensland [2016] QCA 191). It is not difficult to imagine a risk of psychiatric injury to the parties if the investigation is large, complex and protracted, and the personal and professional consequences for them could be high. In assessing the risk and support required, remember that participants may not show obvious signs that they are at risk, or may control that emotion during the investigation and while at work. This incongruence between their internal and external experience is extremely draining for the participants. It can also lead employers to falsely conclude that no specific support is required. For an employee who has pre-existing mental health issues that could be exacerbated by the stress of the investigation process, employers should be even more proactive in their interventions to help the employee resolve conflict and handle disciplinary processes (see for example, Wearne v State of Victoria [2017] VSC 25). Even if no particular risk to the parties is apparent, it is always prudent — and compassionate to your employees — to offer real support. Ideally each respondent and complainant should have someone within the organisation who is able to explain the process and answer questions. What does real support look like? Although it is common practice for employers to offer free Employee Assistance Program counselling to employees whose conduct is being investigated, such counselling will not of itself provide sufficient support to satisfy the employer’s duty where it exists. Sometimes, the number of free sessions available to any one employee is not enough and the service itself is not adequate to support the participants. Best practice support is to nominate a neutral person in Human Resources or another part of the business who can make contact to check on the welfare of the person without exacerbating the situation,

and who can respond to enquiries about the progress of the investigation and with whom the participant can discuss any concerns. That neutral person can also check that the participant is able to access appropriate mental health care. Employers might also consider offering the parties a day off to prepare for their interviews or to meet with their support person or advisor. The right to anonymity — naming the complainant and respondent If the complainant or a witness wishes to be anonymous (usually for fear of possible reprisals), the challenge is that their anonymity can make it difficult for the respondent to have a fair opportunity to respond to the allegations. Again, for the investigator, a balancing act is required: the participant’s request for anonymity versus procedural fairness for the respondent. Can the respondent understand and respond to the allegations without knowing who the complainant is? If so, you can probably allow the complainant to remain anonymous, without breaching procedural fairness. It is not a requirement of natural justice to inform the respondent of the actual identity of the person who has made the allegations that you are investigating, provided that they can understand properly what has been alleged against them and have a fair opportunity to provide their response. In most cases, however, the indirect or implicit disclosure of the identity of the complainant will be necessary in order for the participants to provide helpful and relevant evidence, and for the respondent to be able to respond to the allegations and comment on contradictory evidence. While it is unusual for any participant to have any specific legal right to anonymity during a workplace investigation, if whistleblower legislation applies it may require that their identity is hidden. Here are some examples: • Ngaire is accused of accepting a gift of an iPad from Acme Pty Ltd, a potential service provider, in breach of the Conflict of Interest policy. The allegation is clear, and Ngaire does not need to know who the “complainant” is in order to respond. The alleged actions may not involve the complainant, and the complainant’s identity as a witness does not appear to be crucial. • The allegation that Edwin “set rosters which effectively required Employee X to work three 16-hour days over the last month, in breach of the company’s rules about working hours and fatigue management” is very difficult to respond to, unless Edwin knows who Employee X is. You may only be able to secure anonymity if there are multiple examples of Edwin allegedly rostering staff to work excessive hours, although Edwin may still struggle to respond if there are some reasonable explanations for some staff working 16-hour days. It should also be noted that concealing the identity of the complainant might motivate the respondent to conduct their own enquiries in order to discover the complainant’s identity. Ironically, this can greatly increase the number of people who then become aware that allegations have been made and make the complainant feel very uncomfortable. For example, a manager accused of anonymous allegations of bullying and swearing told all his direct reports about the complaint. He told them that he knew it was one of them who made the complaint, that he would find out who that person was, and that he had appointed his assistant to help him find out. The complainant, who was in the room, reported feeling highly anxious and fearful about the repercussions of having made the allegations. Clearly, this sort of behaviour is unacceptable. If requests for anonymity are accepted, and mean that you cannot fairly put the allegations to the respondent, you may be prevented from fairly making findings of fact — an alternative approach can be to conduct a workplace review. This process does not rely on a single complainant coming forward with specific allegations, and it provides anonymity to all the participants. It may be more appropriate depending on the nature of the allegations, and it is particularly useful where a systemic failure of process appears possible. Chapter 1 discusses the circumstances in which an investigation is appropriate. Unknown complainant and anonymous complaints Some allegations are made anonymously, by unsigned letter or an anonymous employee survey, or by a

complaints hotline that permits anonymous complaints and the organisation does not know (and cannot find out) the identity of the complainant. Investigations of such matters can be difficult, but if they raise potential issues of interest to the organisation or breaches of policy, you should attempt to investigate as much as you are able, so that your organisation can show that it is has taken positive steps to deal with the allegations. If the anonymous allegations are so vague or unintelligible that the respondent cannot reasonably respond, an investigation of that complaint with possible disciplinary outcomes for individual employees is not the right way to proceed. Whatever conclusions you were to draw, they could be challenged on the basis that the respondent was not afforded procedural fairness. A better way would be to explore the allegations informally, determine whether there could be any substance in them and only proceed to investigation if adequately particularised allegations can be formulated from that informal exploration. The benefits of anonymous complaint making Given the challenges presented by the anonymous complaint, it can be tempting for organisations to put them in the bottom drawer or to specifically disallow them in organisational policies. Failing to permit anonymous reporting, however, means that your organisation is unlikely to be able to take action about certain inappropriate behaviours that are occurring. Research indicates that fewer than one in five people subjected to inappropriate behaviour report it, and one of the most powerful disincentives is the requirement to disclose their identity. This was confirmed in a major report by the Australian Human Rights Commission — Change the course: National report on Sexual Assault and Sexual Harassment at Australian Universities (2017). The report found that students choose not to report in the vast majority of cases. Even for the most serious complaints, the report found that of those students who were sexually assaulted in a university setting, 87% did not make a formal report or complaint to anyone at the university. There are real benefits for organisations to permit anonymous complaints, because an employer can still act on anonymous reports in the following ways: • If the anonymous report concerns bullying, for instance, it can prompt a general campaign about appropriate workplace behaviours, focusing on the area from which the complaint was generated (if known). • If there is a cluster of reports against the same person or workplace practice, the employer can instigate its own independent investigation observing all necessary standards of due process. • HR might initiate a 360° review in an area where no formal complaints have yet emerged, but in which anonymous reports suggest there are serious problems. • Concerns about discriminatory promotion practices might prompt a statistical review of the demographics of promotion applicants and success rates, then a targeted campaign to address the identified gaps. • A couple of similar complaints from the same area might justify timetabling some extra, targeted training, particularly for managers and encouraging “active bystanders” to look out for their colleagues. • Leaders of the organisation will be aware of problems in the workplace culture, enabling them to take action. • Pulse surveys might be used to further test concerns where a flow of reports suggest abiding issues of concern. Allowing anonymous complaints may also — perhaps most powerfully — drive home to staff whose behaviour is inappropriate, but so far unreported, that they should practise some self-discipline. When it becomes known throughout the organisation that all their colleagues now have the power to report anonymously, a new layer of potential visibility and accountability for bad behaviour is introduced.

Checklist: Unknown or anonymous complainant □ Do not proceed with a formal misconduct investigation unless the allegations are sufficiently clear and specific to be understood by the respondent. □ Explain to the respondent that the organisation has decided to investigate the allegations, even though the complainant is anonymous/unknown, but this does not change the respondent’s (or the other participants’) obligations of confidentiality with respect to the matter. □ Tell the respondent that you understand it is frustrating not to know who made the complaint, but it is better not to speculate about who it is. □ Explicitly direct the respondent not to try to find out from other employees who made the complaint (even though this should follow from the direction to maintain confidentiality about the investigation and the matters involved in the complaint). □ Tell the respondent you believe that the allegations are clear enough to be understood, without the complainant’s identity. □ Describe your decision about anonymity in the report and note that you believe that procedural fairness was afforded to the respondent, even though the complainant’s identity was not known. □ When analysing the evidence in your report, discuss what impact the anonymity may have had on the evidence collected.

This checklist is available for complimentary download at www.worklogic.com.au/downloads. Footnotes 1

aslia.com.au/.

2

ausit.org/.

3

See for example, Jane Goodman-Delahunty, Mark A Nolan and Evianne L van Gijn-Grosvenor, Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants’ Evidence, July 2017, available at www.childabuseroyalcommission.gov.au/policy-andresearch/our-research/published-research/the-effects-of-child-sexual-abuse-on-memory-andco, accessed July 2020.

4

Jenkins, Moira et al, Consequences of being accused of workplace bullying: an exploratory study, International Journal of Workplace Management, 4(1) (2011) pp 33–47.

¶7.2 Reluctant complainants and the right to withdraw allegations In some cases, complainants may be so concerned about anonymity, or other aspects of the investigative process, that they are unwilling to proceed with their allegations. A complainant is certainly entitled to withdraw his/her allegations at any stage, that is, to indicate that they themselves no longer wish to proceed with the investigation of their allegations. Once allegations of misconduct have been brought to the knowledge of the organisation, however, they can’t be “taken back”. The organisation knows about the risk of misconduct, and it is “on notice” of

potential damage to its property, people or reputation. The complainant cannot stop the organisation addressing the risk. The organisation shouldn’t pretend that the risk itself has gone away (unless it has good reason to believe that the complaint was made in bad faith in the first place). The risk remains, particularly where a serious breach has been alleged. Knowledge of a risk to the organisation or to other employees in the workplace must be addressed. The organisation may have to make the difficult decision to proceed with an investigation, and for procedural fairness reasons, to name the complainant, even if they seek to withdraw or refuse to participate. Put simply, the organisation may have to put the interests of enforcing standards of conduct in the workplace above an individual’s preference for anonymity. Working with a reluctant complainant takes sensitivity. For many complainants, a formal complaint is their last resort to deal with a difficult situation that has been going on for some time. They are often fearful of retribution, struggling with divided allegiances to their colleagues, and worried about the impact on their job and career, or even, worried about the impact on the respondent. The following tips can assist when a complainant is reluctant to proceed: • Be clear from the outset that their allegations will be treated seriously and fairly. • Explore why the complainant is expressing reluctance and respond to reasonable requests for support, while maintaining independence in the investigation process. • Tell the complainant that the respondent and participants will be directed not to engage in any retribution or victimisation. • Inform the complainant about the laws prohibiting victimisation, and any organisational policy that provides consequences for any victimisation, to provide some reassurance. • Advise the complainant that if anyone does anything that the complainant believes was intended to discourage or punish the complainant, they should inform you immediately and it will be treated with the utmost seriousness. • Offer counselling through the organisation’s Employee Assistance Program, if you have one. • Explain that now that the organisation has become aware of their concerns, the organisation must act, because the concerns that the complainant has raised are important and affect the organisation as a whole, as well as the complainant’s colleagues. You may wish to refer to a safe and healthy workplace, relevant laws, workplace culture, future employees managed by the respondent and whatever else is at stake for the organisation. This shows that the allegations are “bigger than just one person”. • Explain that the organisation has a moral and legal responsibility to take into account the potential risks and damage to other employees and to the organisation that could eventuate if the allegations were not investigated. • Encourage the complainant to participate and give their perspective, and note that an investigation will proceed with or without the complainant’s participation. • Appoint a suitable internal staff member as a key contact for the complainant during the investigation and with responsibility to check in with the complainant and offer support regularly. • Encourage the complainant to understand that they have more to gain by the matter being addressed, than by the situation continuing as is. In the event that the complainant refuses to participate in an investigation, the organisation can direct them to participate, although it may not result in much useful evidence. Be aware that this will probably cause the complainant stress, and so ensure they are supported during and after the process. The organisation can of course investigate without the complainant’s participation — this may be possible even without the complainant’s participation in an interview, on the basis of information that the

organisation already has. In some circumstances, the employer may decide to initiate its own investigation, and the complainant will be referred to as a participant or witness. This can sometimes reduce the stress on those who are providing evidence, as their role is one of participant among various other participants, rather than the apparent instigator of the complaint. In summary, once an employee makes an allegation of improper conduct which affects the organisation in any way, the complainant’s reluctance is not the sole determining factor for what happens next. The organisation may have a legal obligation to explore the allegations raised, and it probably also has a business or ethical reason to do so. If you proceed, inform the complainant about what the organisation will do to protect and support them. The same rules and guidelines cover your handling of reluctant witnesses. The respondent’s right to know the allegations and the evidence against them As a basic rule, respondents must be provided with the allegations and the evidence on which the investigator is intending to rely in drawing conclusions and making findings. Case example In Boal v BHP Coal Pty Ltd [2014] FWC 9331 and Faulkner v BHP Coal Pty Ltd [2014] FWC 9330, two employees were dismissed for breach of policy for using a mobile phone while operating equipment on a mine site. The Commission held that the employer had not done enough to enforce its policies over time, but also that the employer had failed to provide each employee with an opportunity to respond to all of the allegations/evidence relied upon in dismissing them. That is, while the original allegations and evidence were provided to the employees for a response, and their responses were considered, neither employee was given adequate time to respond to additional allegations and evidence collected during the investigation that was ultimately relied upon in dismissing them. That evidence was provided to the employees only in a meeting, at the end of which, they were dismissed from their employment. For example, in Boal’s case, the employee was asked to provide his phone records for the day in question. The employee did so, but also provided records for a wider period of time. This was crucial, as the employer then relied on these other records (which appeared to show activity on his mobile phone during work shifts) in establishing grounds for his termination, but these new allegations were never put to Mr Boal until his final interview, at the end of which, he was dismissed. This was held to be insufficient time to prepare a response. The employer had therefore failed to accord them natural justice.

This right is discussed further in relation to contradictory evidence (see Chapter 16).

¶7.3 The right to a copy of the investigation report The parties have a right to be informed of the findings that the investigator has made and non-disciplinary actions to be taken by the organisation. The respondent has a right to be told what disciplinary action the organisation will take against them in response to the findings in the report. This can usually be done verbally, or sometimes in a summary document that identifies the allegations, the findings, and if appropriate, a brief summary of the evidence relied upon. At present, the complainant and respondent do not have an automatic right to a full copy of the investigation report, unless there is an express requirement in the organisation’s policy or industrial agreement that the parties are to be provided with a copy of the report. The employer has run the process and resourced it, in order to support its decision-making. As such, the report belongs to the employer. The current case law does not require that — to ensure procedural fairness or otherwise — the parties are provided with the full report. There are good reasons not to provide the full report with all its attachments (including interview records, and other relevant evidence). These include: • Potential negative impacts on workplace relationships, if the parties read details of the entire evidence that their colleagues provided. • Risks of victimisation or detrimental action against participants. • Breach of confidentiality that was promised to the participants.

• Witnesses likely refusing to participate in workplace investigations where the report will be released. • The risk that the parties may focus on the details of the past, picking apart the investigation process and the entire evidence provided by witnesses and the other parties, rather than focus on future steps to resolve the issues. It is of course important to support the employees involved, especially if they are both staying in the organisation after the investigation, to move forward after the process has complete. Further to that, both parties have invested a lot in the process — the complainant has shown courage in naming misconduct they believe they have experienced; the respondent has lived for weeks with their future employment and reputation at risk. For these reasons, out of respect for the parties and to help them achieve some closure of the issues, it can be useful to provide a summary report that includes enough information for the parties to understand: • that the process was thorough • that their evidence was given a fair hearing • what evidence was considered, and • the basis on which the investigator made a finding for each allegation. This can be done in a summary report or “statement of findings”. Alternatively, a de-identified report may serve this purpose. In some organisations, the employees may have a right to make a request under relevant Freedom of Information legislation and obtain the full report that way. If the matter reaches the courts, particularly in an unfair dismissal case, where the dismissal was based on the findings in an investigation report, the employee may have a right to the full report and obtain it through the discovery process. In a 2019 Supreme Court decision,5 Associate Justice Mary-Jane Ierodiaconou found that, by not providing the respondent with an unredacted copy of the investigation report or the witness statements, the employer had not failed to afford him procedural fairness. In reaching this conclusion, her Honour stated: • “It was unnecessary for the investigator to provide [the respondent] with full copies of witness interviews in circumstances where he had been provided with the full allegations and the contradictory evidence. Further, it was unnecessary for the investigator to provide [the respondent] with her deliberative material.” • The respondent “was given an opportunity to be heard in respect of the allegations against him because he was provided with the full allegations, and later, the contradictory evidence against him, together with the opportunity to provide written and oral responses to the allegations and the contradictory evidence.” • “In the circumstances of a workplace investigation into allegations of harassment, where the plaintiff had received the allegations and summaries of contradictory evidence (with names of persons providing that evidence), it was unnecessary for the investigator to provide copies of the witness statements and name the various witnesses in her report.” • The respondent “has failed to establish that receiving the information redacted in [the report], or the annexures to it, would make any practical difference to the outcome of the investigation or the proposed disciplinary outcome. I find there is no practical injustice to [the respondent].” Footnotes 5

[2019] VSC 420 (16 July 2019).

¶7.4 Responsibilities of the participants Employers usually impose obligations (or conditions of participation) on those employees who participate in an investigation. These obligations are primarily about acting appropriately and honestly, both during and after the investigation. The employer’s policies, or a letter to the participant at the start of the investigation, can set out these obligations explicitly. If the obligations imposed by the employer in a misconduct investigation are understood to be a “reasonable direction” in employment, failure to comply with the obligations could warrant disciplinary action. In this case, the reasons for that action must be defensible and clearly documented, in order to minimise the risk of an adverse action claim by the employee. The adverse action provisions in the Fair Work Act 2009 (Cth) prohibit an employer for victimising (or treating less favourably) a participant for exercising a workplace right, which includes participating in the investigation process. Beware of adverse action! The participants’ obligation to maintain confidentiality The obligation of confidentiality is described in the previous chapter. In summary, all investigation participants must maintain confidentiality, with certain common sense exceptions that permit you to investigate. The participants’ duty to act honestly Employees have a duty at common law to act honestly in the course of any investigation in which they are a participant. In practice, this duty includes answering questions in the interview truthfully, to the best of their recollection. It also means making truthful allegations about behaviours that have actually occurred. Where it appears from the findings of fact that you make in an investigation that a participant has acted deceptively or lied, the organisation should consider acting on this. Chapter 14 discusses in detail the repercussions for an employee of lying in a workplace investigation. The duty to participate in a workplace investigation Some organisations have policies or other contractual obligations that expressly state that staff are required to participate in (or cooperate with) workplace investigations if requested by the employer. Effectively this operates as a contractual promise by the employee, in advance of any investigation commencing. Where there is no such requirement, employees do not have a general duty to participate, and usually only do so voluntarily, unless it is at the lawful direction of the employer. There is limited utility in requiring a reluctant participant to participate. When reluctant witnesses are directed to participate, they may refuse to participate in a meaningful way, for example, by not answering questions in the interview, giving limited and unhelpful responses, or saying they “can’t remember”. In such situations, it can be useful to remind participants that there is no such thing as neutrality in a workplace investigation. If a witness refuses to provide their account of what they observed, the absence of their evidence will almost always favour one party’s version over the other. It can be helpful to remind a non-responsive witness that their honest account is important in understanding what has really occurred, so that the employer can take appropriate action to address the issues in a way that is fair to everyone. Keep in mind that the reluctant witness may have a genuine fear of reprisals by one of their colleagues, be reticent to be seen to “take sides” in the dispute, or simply be uncomfortable with conflict. Keep a compassionate mindset and remember that a workplace investigation is an intimidating process for most employees. The duty not to bring vexatious allegations The complaints process is for employees with real complaints — genuine concerns about perceived

wrongdoing in the workplace, lodged with the intention of righting a wrong, improving the workplace for everyone, reducing the risk of reoccurrence and finding a sense of justice for the harm suffered. The complaints process is not supposed to be used spitefully, dishonestly, or to damage the reputation and future employment of a colleague. Fortunately, complaints made completely in bad faith are rare. In the unusual case that a person’s allegations are fabricated or exaggerated, and made in bad faith, the organisation may consider taking disciplinary action against the complainant for making a vexatious complaint or for breaching their obligations in the investigation process. This usually happens after a fresh investigation into the allegation that the complaint was made vexatiously. This issue, and the relevant case of Linda Hanrick v Meridian Lawyers [2018] FWC 3256, is discussed at page 407 where we provide tips for employers on how to respond to vexatious complaints. Be careful, however, not to conclude without sufficient evidence in support, that just because a person’s allegations are not proven, they have necessarily acted in bad faith or deliberately lied. Many complaints will fail where the perception of the complainant, although strongly and genuinely held by them, is not supported by the available evidence when it is independently assessed by the investigator. Case example In Adamopoulos v Thompson Healthcare [2017] FWC 2505, three nurses colluded in an attempt to get the Director of Nursing’s employment terminated. Human Resources collected over 45 complaints from the three members of staff about the Director of Nursing at the aged care centre. This was reduced to four “pertinent” issues which were presented to the Director of Nursing, Ms Adamopoulos, for response. The Commissioner deemed the evidence of the three nurses as “tainted by hyperbole, exaggeration and in some cases plain fabrication. It can only be viewed through a prism of bias and prejudice against the applicant”. The Commissioner found that the three nurses had “obvious ulterior motives in wanting to bring the applicant down and all three stood to benefit from her dismissal”. One of the nurses had been given a warning previously by Ms Adamopoulos and held a vendetta, one of the nurses resented Ms Adamopoulos for her decision to stop her from attending a specific weekly meeting and the third nurse would to be promoted to Director of Nursing if Ms Adamopoulos’ employment was terminated (as it was). The Commissioner also found that the investigation was largely procedurally unfair, as Ms Adamopoulos had only been given 24 hours to respond to allegations, which were of a very broad and generalised nature. She also did not have access to her work computer during this time, which contained the majority of the evidence which she wanted to use to dispute the allegations. The Commissioner was particularly scathing of the HR Manager Ms Jennings, stating that she should have been able to see that the allegations were vexatious: “that Ms Jennings could not see the obvious collusion from the wording of the lists of complaints is a matter of some regret”. Ms Adamopoulos did not want to return to the workplace and was awarded the maximum allowable compensation of 26 weeks’ salary plus superannuation.

Simply because all allegations in an investigation are not proven, this does not mean the allegations were vexatious or made in bad faith. The duty not to victimise During or after the investigation, if an employee (including a participant in an investigation) treats another participant unfavourably because of their involvement, this is known as “victimisation”. Again, your policy or a letter to the participants should set out what this term means. Remind participants of their obligation not to victimise anyone for participating in the investigation, and warn them that any breach of this direction will lead to disciplinary action. Your policies or correspondence to the participants should explicitly set out the duty not to victimise other participants. Where you are made aware of any alleged victimisation, either during or after the investigation, take immediate steps to intervene to prevent any further victimisation. Such steps might include directions to staff not to engage in victimisation or, where the risk is serious, removing employees from the same physical workspace or line of reporting, pending further exploration of the alleged victimisation. For example, Diana, who works in marketing, alleges that she was subjected to sexual harassment at a staff retreat. While these allegations are investigated, several co-workers allegedly start spreading rumours that she is making up the allegations in order to pay for an overseas holiday. Such statements by these co-workers could constitute victimisation — treating Diana less favourably, by

claiming she is lying and misusing the process for personal gain — and the victimisation should be investigated, or at the very least, stopped with a firm and clear direction to stop the victimising behaviour. If it is necessary to start a concurrent investigation about victimisation involving similar participants, you will almost certainly want this to be done by a separate investigator. This will avoid cross-contamination of information or complaints of bias. Trauma-informed investigations Where one of the participants in a workplace investigation has experienced trauma — either previously or as a result of the alleged workplace incident — the way in which they communicate with the investigator, present in meetings and interviews, and give evidence, and also the evidence itself, may be different to the presentation and evidence of participants who have not experienced trauma. A “trauma-informed” approach to workplace investigations minimises the likelihood that the evidence of a traumatised participant will be unfairly doubted, or that the process itself will re-traumatise the participant. The effects of trauma There has been significant research and study into the effects of trauma on people. It has been well documented that trauma affects the brain and results in both a physical response in the first instance (during and immediately after the incident/s) and significant short- and long-term effects. The long-term effects of trauma can include: • emotional reactivity • lack of emotional regulation • disorganised thinking and inability to manage the cognitive process • emotional numbing and dissociation • hypervigilance • profound impacts on memory and the ability to recall events. As a result of this, a person who has experienced trauma may present with an incomplete or uneven memory of events, an emotional response which may not appear to accord with what they are speaking about, and a heightened or numbed emotional response. They might recall some aspects of a traumatic event in great detail, recall very few details or have an uneven memory of the traumatic event.6 It is also common for a person who has experienced trauma to delay coming forward to report what has happened, to provide inconsistent accounts and to be uncomfortable about providing details. As a result, there is a risk that people who have experienced trauma are unfairly disbelieved or treated as evasive or unreliable witnesses. The Judicial College of Victoria warns judges that survivors of sexual violence often do not present or give evidence in the way we might assume “traumatised” people would: “Credibility unrelated to emotional display Victims can be visibly stressed, anxious, irritable, numb and/or controlled. Judicial officers, police, media and the public may unconsciously assess victims as more credible if they are visibly upset and emotional, even though credibility is unrelated to emotional display. Victims may present as controlled as a coping mechanism, or because they have not received enough support. Victims’ emotions are likely to change throughout the legal process.”7 The Judicial College of Victoria also notes, in relation to recall of traumatic events: “Victims of one-off traumatic events typically recall only a few clear details of the events; It is difficult for victims who have experienced repeated traumatic events within a relationship to isolate details of specific incidents. They may remember different things at different times; Memories are vulnerable to the impact of alcohol and other drugs, injuries, illnesses and previous experiences of traumatic events …”8

A trauma-informed investigator recognises that trauma can affect how a person presents and gives evidence, and that the participant’s evidence should not be assumed to be less credible. It could even be argued, according to evolving research, that in exhibiting these behaviours in investigations, the person is exhibiting a “normal” or “typical” response to trauma. Clearly the trauma-informed approach runs counter to the many societal assumptions and false beliefs about how people who have experienced trauma “should” present or describe their experiences. These false assumptions are often damaging to survivors, unhelpful to the process, sexist (in particular in the case of women who have experienced sexual assault) and result in bias. Why is a trauma-informed approach necessary? Applying uninformed ideas about how the participant “should” present will mean that their evidence will not be given the weight or reliance that it deserves. It damages the investigator’s fair and logical assessment of all the evidence, impairs their judgment, and risks leading to faulty conclusions and inaccurate findings of fact. Investigators should also be aware that the processes for handling complaints of sexual misconduct can be re-traumatising for complainants and survivors, as they are asked to describe to others (and therefore “relive”) their experiences, sometimes more than once, in a formal setting. Giving evidence can be a particularly distressing experience. Investigators must plan interviews and communications with participants carefully in order to ensure that witnesses feel safe during the process and are able to present their evidence. How to conduct a trauma-informed investigation While investigators are not expected to be experts in the area of trauma, you should be aware of the widespread existence and impact of trauma in a broad sense, and turn your mind to its possible presence and the ways in which it may manifest in the context of an investigation. There are a number of simple and practical ways to ensure that your investigation is trauma-informed, in addition to the fundamental protections of procedural fairness that are described throughout this book:9 • As well as verbally, communicate the purpose of the interview and the relevant logistics in writing, so that the participant who has experienced trauma has something to refer back to. • Give the participant the opportunity to determine where they would like to be interviewed, as this can help the participant feel a sense of control and greater safety. • Give the participant extra time in interview arrangements and also in the interview itself. Let the participant set the pace, rather than you pushing them for answers. • The presence of a support person is particularly important in interviews. • At the start of an interview with a complainant, you may wish to advise the participant that if an allegation is not substantiated, it means the evidence collected did not meet the necessary evidentiary threshold, and that it is not a finding that the alleged behaviour did not occur. • In interviews, avoid victim-blaming narratives or inferences when asking questions, such as “How much had you had to drink?”, “What were you wearing?” and “Why didn’t you say ‘No’?”. While the presence of alcohol and the issue of consent may be relevant to the enquiry, this evidence must be collected in sensitive ways. Allow the participant to give an overall narrative, then going back to explore elements of their account by asking neutral, non-judgmental questions, such as “Can you remember all of the things that you said to her at the time?” or “You have explained that you had wanted him to stop touching you. How did you indicate that to him?”. • Prepare questions about the context and environment in which the alleged incident/s allegedly occurred, including sensory details, in order to assist the participant to recall the details. Ask general, open-ended questions that are not specific to time or the sequence of events, such as “what else was happening”, instead of focusing on what happened in sequential order. • As always in investigations, demonstrate empathy with the participant while remaining unbiased and

keeping an open mind. For example, verbally acknowledge that it may be difficult, challenging or even painful for the person to give their account. For consistency and fairness, the same comments might be made to both parties in the investigation. • At the end of the interview, explain that it is very common for participants to recall more detailed information after an interview has ended, and that they are able to provide further information after the interview if they wish. Keep in mind throughout the process — and especially when considering the relative credibility of the parties’ evidence and making decisions — that a traumatised person will present differently at interview to a person who has not experienced trauma. Their account may be disconnected; may involve inconsistencies, memory lapses and uneven details; and may be delivered with variations in candour, detail, emotional composure and regulation. You should not expect that a traumatised person’s account will be chronological or linear. When considering and weighing up the evidence, consider the possible impact of the alleged traumatic events on the participant, particularly in relation to their memory and how they recount events. Exercise caution when making findings, particularly in circumstances where the only available evidence comprises inconsistent accounts from the complainant and the respondent. When writing your report, you might also consider the following: • Address the issue of credibility towards the beginning of your report. In your description of the parties’ demeanour and presentation in interview, address the possible impact of trauma on a participant. • In matters involving an analysis of consent, carefully consider the evidence, how consent may have or may not have been communicated or withdrawn, and avoid perpetuating victim-blaming narratives. • Consider the totality of the circumstances and make decisions about the appropriate weight to be given to a person’s evidence in light of all these considerations. Key points • All participants in an investigation have rights and responsibilities. This includes the investigator, the complainant, respondent and any witnesses. • Generally, in order to protect the participants’ rights and well-being, the investigator will need to be proactive in order to ensure those rights are known and accommodated. • Participants have a right to have a support person, who may be a lawyer or a union representative, present at the interview. • The participants are generally required to act appropriately and honestly during and after the investigation process, to maintain confidentiality, to act honestly, not to bring vexatious allegations and not to victimise others for participating in the investigation process. • A participant who has experienced trauma will likely present differently in interview to a participant who has not experienced trauma. A “trauma-informed” approach to workplace investigations will minimise the likelihood that a traumatised participant will be unfairly doubted or re-traumatised by the process.

Footnotes 6

See further, Blue Knot Foundation. (2018) The Truth of Memory and the Memory of Truth: Different Types of Memory and the Significance for Trauma, available at www.blueknot.org.au/resources/publications/trauma-and-memory, accessed July 2020.

7

Judicial College of Victoria. (2020) Note 12: Victims of Sexual Offences, available at www.judicialcollege.vic.edu.au/eManuals/Victims/Victims%20of%20Crime%20in%20the%20Courtroom_Note%2012. accessed July 2020.

8

ibid.

9

See further, Kezelman, C. and Stavropoulos, P. (2016) Trauma and the Law: Applying Traumainformed Practice to Legal and Judicial Contexts (Sydney: Blue Knot Foundation), available at www.blueknot.org.au, accessed 11 July 2020.

SECTION 3 Getting Started Editorial information “If I had eight hours to chop down a tree, I’d spend sixsharpening my axe.”Abraham Lincoln

Chapter 8: Planning the Investigation The key steps

¶8.1

Secure the evidence

¶8.2

Time frame

¶8.3

Interviews: In what order?

¶8.4

Organising and preserving the evidence and interview records ¶8.5

Editorial information There’s usually a sense of urgency when allegations of misconduct arise, and a pressure to commence the investigation immediately. (We were once told by a participant that it wasn’t fair that an investigation into complex and serious allegations was still going after only three days!) Before launching into interviews and other evidence-gathering, set yourself up for success and prepare an investigation plan that sets out the key steps.

¶8.1 The key steps Here are the key steps that you will usually take in the course of a workplace investigation, which are all set out in this book: 1. Determine the scope of the investigation (see Chapter 2). 2. Determine the allegations (Chapter 2). 3. Draw up an investigation plan (set out in this Chapter). 4. Gather and review information already held by the organisation (Chapter 11), including securing evidence which could be tampered with (this Chapter) and digital evidence that could be deleted (Chapter 15). 5. Contact the complainant (Chapter 9). 6. Contact the respondent and witnesses (Chapter 9). 7. Conduct interviews (Chapters 13 and 14). 8. Gather other evidence, including documents, digital evidence and site visits (Chapter 15). 9. Conduct any follow-up interviews (Chapter 16). 10. Identify any contradictory evidence and put it to the parties (Chapter 16). 11. Analyse and evaluate all the evidence (Chapter 17). 12. Decide on the balance of probabilities whether the alleged conduct occurred (Chapter 18). 13. Determine whether policy or standards have been breached (Chapter 18). 14. Determine, or have determined by the appropriate decision-maker, what disciplinary action will result (Chapter 18). 15. Document the investigation by writing a report (Chapter 19).

16. Provide feedback to the parties about the end of the investigation process and subsequently about the outcomes (Chapter 21). In most formal investigations, all of these steps will be taken. Investigations, however, can vary wildly and involve a range of evidence and other variables: there may be voluminous written evidence, unusual logistics or no witnesses. As a result, some steps in the investigation may be taken more than once, some not at all, and not necessarily in this order. In the planning stage of your investigation, you should think about what each of these steps will involve, given the specific allegations at hand. This will help your investigation to run smoothly and efficiently, position you to respond to interruptions and challenges, and prepare you for the decisions you will need to make. One way to approach this task is to develop an investigation plan, which is explained below. Simple investigations conducted by seasoned investigators will not generally need a written plan, but each of the questions below should still be given some thought as part of your planning stage. Complex investigations, including those conducted by more than one investigator, will benefit from having a written plan for the investigators to communicate with each other, to keep track of progress and key steps, and to make sound resourcing reasons. Planning your investigation At the planning stage you will have already scoped your investigation, and determined exactly what allegations you will investigate (set out in Chapter 2). Together with the scope, your investigation plan will be your roadmap. For each allegation, work through the planning questions below. Identify the specific conduct alleged, and potential breach of policy • Consider the allegations. What are the facts in issue? For example: Whether Janet was present at the meeting; The time that Ahn arrived for night shift on Friday; The tone of voice Gunter used when he gave negative performance feedback. • What employment policy, code of conduct, rule, value or industrial instrument (awards and workplace agreements) could the employee have breached, if they are found to be guilty of the alleged conduct? Exactly which section or provision? • Will you need to judge “reasonableness” of proven behaviour (for example, for bullying allegations) or assess proven behaviour in some other way (for example, whether it was “unwelcome” to the complainant, in the case of sexual harassment)? Investigation approach • What employment policies, procedures and rules apply, if any, as to how the investigation is conducted (that is, the process)? • Is there any legislation relevant to the conduct of the investigation (such as whistleblower protection, workplace surveillance, privacy) and related policies and procedures? • Will you conduct a preliminary enquiry, a full investigation, or an investigation “on the papers”? • What is the predicted time frame of the investigation, taking into account the relevant key steps? Are there prescribed time lines or minimum or maximum periods of time for certain steps, set in a policy or procedure? For example, a policy might require that allegations must be acknowledged to the complainant in writing within a specific number of days of receipt. Information gathering: priorities, gaps, sources and resources • Are there any immediate steps that need to be taken to preserve the integrity of the evidence, including any digital evidence? • Is there any perceived risk to any person or any asset, once the investigation becomes known?

• What information do you have so far? • What further information do you need? • Who can provide you with the documents, data and other information you need? • Do you need any “expert” help or opinion? For example, forensic IT specialists to help you recover data or deleted information, an accounting expert in a fraud case, or a dangerous goods expert in an occupational health and safety case. Interviewing witnesses • Whom must you interview? • Whom might you also need to interview, depending on what the other evidence shows? • What questions do you need to ask of participants? As your investigation proceeds, the questions you will need to ask each participant will probably change. Keeping a list of questions for your witnesses will ensure that no issue is overlooked. • In what order should you interview the participants? Some investigators prefer to interview the complainant and the respondent, then all the witnesses (in case the respondent admits much of the complaint, then witnesses may not be necessary); others prefer that the respondent is interviewed last, when much of the other evidence has been gathered. • Do any of the participants have any special needs, such as the involvement of an interpreter, parent or qualified carer? • Will the interviews be audio recorded, will you or a scribe take detailed notes during the interview, or will your own handwritten notes suffice? Contextual evidence • Do you need to conduct a site visit? • Will you document the site by taking photos, using a plan (such as to show a line of sight, or distances between two relevant places) or both? Investigation timing and logistics • In what order should you collect the evidence? For example, it may be efficient to review copies of emails between the complainant and the respondent before you interview them and ask about their email correspondence. • Do you anticipate any delays? For example, sickness, leave, upcoming retirement or resignation. • In what neutral and private space will you conduct the interviews? Consider whether any location could embarrass or distress any party, or confer an advantage on a party. Record-keeping, decision-making and reporting • How will you keep secure records of the evidence you collect during the investigation? • Is part of your role in this case to recommend the disciplinary consequences for any breach of policy that is proven? • How much detail do you anticipate you will put in the investigation report? • Who is intended to receive a copy of the report? • Is it possible that the organisation may choose, or be required, to provide the full report to the parties?

• Have you communicated your record-keeping policy to the relevant people at the beginning of the investigation? Plan to be adaptable Preparing an investigation plan is a little like planning a road trip before the land has been properly explored. The path of an investigation is to some extent unpredictable because evidence is revealed throughout. Surprises are common. You may become aware of new witnesses and evidence that you didn’t initially know existed, participants may go on leave or resign, or the respondent may admit some of the allegations. As your understanding of the subject matter develops, you will need to re-visit and update your investigation plan, to take these developments into account. Be flexible when creating your investigation plan as investigations rarely proceed in the way you might expect. Build in contingencies — especially in terms of duration.

¶8.2 Secure the evidence It may be necessary to take some steps immediately — even before you take the time to plan the investigation fully. This includes situations where a person could cause immediate harm to your organisation’s business or evidence could be compromised or destroyed once the respondent or other employees know that the investigation is being conducted. Where the complaint involves misuse of technology, it can be appropriate to suspend the respondent’s computer access overnight without their knowledge, and secure the respondent’s computer or log-on so no one else can access it during the investigation, before informing the respondent of the investigation. In the alternative, it may be possible to access backed-up files from company copy records, without informing the parties. If the investigation relates to alleged misconduct on social media, take screen shots of the activity and save and print the relevant pages and posts, and record the date when the evidence was viewed and saved by the investigator, before it can be removed or edited. See Chapter 15 for more detailed information about preserving digital evidence. With respect to telephone calls and SMS messages, some organisations obtain and keep detailed invoices from telephone companies which record the telephone numbers of outgoing and incoming calls. Others have only high-level invoices which do not record any details. If any information is required from telephone companies — either directly or via a participant in the investigation — be aware that this can take many weeks to be provided, and also that telephone companies may only be able to retrieve historic records back to a certain date, so seek this information very early in the investigation.

¶8.3 Time frame Once you have prepared your investigation plan, you will be in a much better position to estimate the possible time frame of the investigation. Both the number of allegations and the number of witnesses to be interviewed will significantly affect the time taken to complete the investigation. It will remain difficult to predict how long it will take for people to tell their story or how much written material they will provide for you to consider. Given these uncertainties, do factor in some flexibility and don’t promise a specific end date to participants and stakeholders that you may not be able to meet. Timeliness and procedural fairness When planning your investigation, keep in mind that you have an obligation to the parties to conduct the investigation in a timely manner. It is not procedurally fair to delay an investigation unless there is good reason for the delay and the parties have been kept up-to-date throughout the process. Be mindful that lengthy investigations are stressful for the parties and can have a detrimental psychological effect on them. Once you begin investigating, it is common that unforeseen issues will arise which cause the time frame of the investigation to be revised, and the finish date to be delayed. These issues are often unavoidable.

In the planning stages, however, you should endeavour to set up the investigation in such a way that it is conducted as expeditiously as possible, while also providing procedural fairness to the parties. Be clear and upfront with participants about a realistic time frame within which you expect them to participate in the investigative process. Do not be afraid to set reasonable deadlines for the participants to meet you. Be aware of your policies and make all reasonable efforts to comply with any specific time limit suggested or specified in your internal policies. If, for reasons out of your control, such as the illness of a key participant, your proposed timeline cannot be met, explain to all stakeholders the reason for the delay and the new timeline.

¶8.4 Interviews: In what order? Generally speaking, for most investigations, it is both logical and efficient for you to interview the complainant first. Their evidence helps you to understand the allegations fully, and to anticipate the evidence that you will need to collect. There are different schools of thought about whom you should interview next. Some investigators like to interview other relevant participants, that is, key witnesses, who have information about or know something about the allegations. Other investigators like to give the respondent, at this point, a reasonable opportunity to respond to the allegations. On balance, in relation to behavioural issues that have been raised by a complainant, we recommend interviewing the complainant and then the respondent before the witnesses. One of the main benefits of this approach is that it may be the case that the respondent admits that some of the alleged conduct occurred. If the parties do agree that the conduct occurred, you now have enough evidence to make a finding of fact. It is therefore not necessary to interview any witnesses. Additionally, it is usually only after interviewing both the complainant and the respondent that you can determine with certainty who the relevant witnesses are, and what other evidence you will need to collect. In their interview, the respondent may identify other key witnesses whom the complainant omitted to mention, and you can only make a complete and fair selection of witnesses after you have heard from both parties. If you interview the complainant and all the witnesses nominated by the complainant first, there is a risk that you will collect evidence about only one perspective before meeting with the respondent. This may make you less impartial than you would wish to be at a late stage in the process, before you have heard at all from the respondent, and can create a perception that you are “building a case” against the respondent. More importantly, there are likely to be additional questions for the complainant’s nominated witnesses, prompted by the respondent’s evidence. If the complainant or respondent are not available for interview in the suggested order, for example, due to illness, proceed to interview witnesses. This will keep the investigation moving efficiently. If a party is not available, let them know that the investigation will continue and you will interview them when they are ready. If a party is deliberately delaying their own participation in order to disrupt the investigation process, their realisation that the investigation is continuing on regardless might be enough to encourage them to participate.

¶8.5 Organising and preserving the evidence and interview records During the planning phase, prior to commencing the interviews, decide how you are going to keep records of all the conversations and telephone calls you have, and how to identify and record the evidence you obtain. This approach should be consistent across all the investigations you undertake. Detailed records of the procedural steps taken in an investigation are essential to ensure the thoroughness, fairness and defensibility of the investigation itself. Good records are also necessary for risk management, as in future you may need to demonstrate the integrity of the investigation. Keep good records Your records should include everything in your investigation, including the evidence you have collected

(including evidence you have deemed irrelevant), all your handwritten notes, as well as all the documentation and information relating to the investigation process itself. Always make notes of discussions and phone calls as you go, even those that seem procedural at the time, such as a conversation with a witness about an interview time. Confirming arrangements and telephone conversations in a follow-up email is a simple and effective way to record information. Ensure that any handwritten file notes are legible, detailed and include the event (for example, “Telephone call to”), date, time, author, any other persons involved, file reference and brief content of the conversation. Record any particularly relevant words used by the participant, and distinguish direct quotes from your own notes of the discussion using “quotation marks”. As you collect evidence during the investigation, make sure that you keep track of where every document has come from. The easiest way to do this is to request, receive or send documents via email so there is a digital record. During or following an interview, you may ask a witness to email you a document. You can state during the interview that a particular document, including sufficient detail to identify it, has been provided to you (“For the audio, I note that you have just passed me a document headed ‘file note’ and dated 31 August 2020”), so that it is recorded in the audio recording. This can be helpful to keep track of evidence in a large investigation, and also later when you get to the stage of assessing the evidence. For example, where a party had a key document in their possession and did not give it to you, but it is later provided by another participant, the failure of the party to provide the evidence can be useful in assessing the credibility of that party’s other evidence. Noting the source of documentary material and when it was provided to you will help you correctly identify what contradictory evidence has come to light that must be put to the parties for their response, before findings of fact are made. Note the source of hard-copy documents at the top and the date it came to your attention, for example, “Received from Dorothy Michaels, 3/2/18, in interview”. Manage your files You should also ensure that you have a system in place for storing and organising evidence as it comes in. Organising the evidence as you collect it means you will easily locate documents during the investigation, and avoid a rush to collate at the end. It is a good idea to keep a folder, separated by tabs, in which you place all hard-copy documents given to you by the various participants in the course of the investigation. Useful tabs might be: • complaint • written response • transcripts of interview • correspondence with parties and participants • workplace policies • site plans, time sheets, screenshots of text messages, etc • documents provided by complainant • documents provided by respondent • security system or CCTV records … and so on, depending on the nature of the evidence. This ensures that nothing is misplaced; it also makes the assembly of the folder of evidence very easy at the end of the investigation, particularly where witnesses provide you with large numbers of documents in hard copy. Depending on the number of documents you receive, numbered tabs and sticky notes can be useful aids to finding and referring to the documents in interviews and when writing the report.

In addition, given a significant number of documents are now provided or produced electronically over the course of an investigation, it is easy to keep a digital folder on your computer which has different subfolders, organised by participant’s name or type of evidence (as above). Any hard-copy documents you do receive can be scanned and stored in the digital file. Whatever method you use, keep the material in a secure place, such as a locked drawer or a passwordprotected folder on your computer, in order to ensure that confidentiality is maintained. Remember that there are special, additional rules for record-keeping in cases covered by whistleblower protection legislation (see Chapter 1). At the planning stage, you may also want to make copies of the documents you intend to provide to the parties for review or to annotate for your own purposes. If you need to dispose of duplicate documents, ensure that you do so securely by using an appropriate secure document destruction service or by shredding immediately. At the conclusion of an investigation, if you provide an external party with a draft of your report and changes are subsequently made to the final version as a result of their feedback or any other reason, ensure that you have written documentation which records the rationale for any edits, both minor and significant. If long-term physical storage of an investigation file is an issue, all handwritten or non-electronic documents should be scanned and filed digitally and securely. In summary, be systematic and consistent in your record-keeping approach and collate all the information, notes and documents with the expectation that they may be evidence in future litigation. A disorganised or inadequately recorded investigation is risky and may reflect poorly on the investigator (and the quality of their investigation) if later called upon to justify their findings. Key points • Drawing up an investigation plan helps your investigation to run smoothly and efficiently, and prepares you for the decisions you will need to make. • Investigations are dynamic, so you will probably need to adjust your plan after the investigation has commenced. • Your investigation plan should include: the specific conduct alleged; the facts in issue; the applicable policies, procedures and laws; the types of judgment you will make; the type of investigation; the expected time frame; immediate steps that need to be taken to preserve the integrity of the evidence; the likely sources of evidence; “expert” help or opinion; the who, what, how, where and order of interviews; the participants’ special needs; interview recording, scribing or note-taking; interview questions; site visit; timing; and logistics. • Keep a running sheet of your actions during the investigation, including critical decisions you made which influenced the evidence collected and the direction your investigation took (such as your choice about which witnesses would be approached for interview). • Keeping detailed records of the procedural steps taken in an investigation are essential to ensure the thoroughness and fairness of the investigation itself. • Organise and note the source of the evidence as you collect it. This ensures it is conserved and saves time later.

Chapter 9: Communicating the Process to All Participants Communicating the process to all participants ¶9.1 Initial discussion with the complainant

¶9.2

Communicating the process to the respondent ¶9.3 How much information to tell the witnesses

¶9.4

Editorial information Once you are ready to commence the interviews in the investigation, you can communicate the process to the participants — the complainant, the respondent and witnesses. This chapter starts by explaining how best to communicate key information to participants, in order to ensure they understand and can participate in the investigation.

¶9.1 Communicating the process to all participants Lessen their anxiety Being involved in a workplace investigation can be uncomfortable, unfamiliar and stressful for participants. Employees may fear retribution or be afraid that confidentiality will not be adhered to. They may feel like they are being asked to “take sides” and support one colleague over another. Sometimes the only knowledge an employee will have of investigations is based on television shows about serious crimes, showing aggressive interview techniques and melodramatic finales! They may also have read reports in the media about high profile workplace investigations with serious repercussions for individuals and organisations involved. It is in the interests of the investigation to make all participants feel more comfortable, so that they can openly and calmly contribute their evidence. Most participants will remember more and offer more details of their memory of events if they are feeling relaxed and trusting. In this chapter, we explore how providing a clear and complete explanation about the investigation process, and directly addressing the fears and assumptions that participants may bring to the process, can achieve this. Keep a professional distance Being empathetic and reassuring participants about the process can be done without affecting the impartial and professional detachment required from you as the investigator. A simple but effective approach is to maintain a level professional “distance” from all participants when you are corresponding with them. You might use a level of formality in your emails (“Dear” instead of “Hi”; “I understand” instead of “OK”). This is part of maintaining impartiality, objectivity and seriousness, and to ensure that the participant doesn’t perceive that you are on their side. Be mindful not to become overly familiar with any participants or stakeholders even if you are dealing with them often. Ensure your communications do not refer to personal matters or informal discussions that are unrelated to the investigation, even if they try to engage you in personal conversation. You may feel a little uncomfortable and even unfriendly at first, but remember that keeping the professional boundary is in everyone’s interests. Inadvertently giving the impression that you believe the complainant will not help the complainant later when they are trying to understand the outcome of the investigation and realise they were not believed. Also remember that the participants or stakeholders may be innocently wishing to befriend you, but equally they may be trying to influence the outcome of the investigation in their own favour. Remember too that your emails with the parties may later be reviewed by a court or tribunal to determine if you were, or appeared to be, truly independent or biased towards one or the other.

Explain things in writing for the participants When communicating with a participant by phone it is always advisable to follow up with an email confirming what you have spoken about and the agreed next steps. This is so that the participant — who may be feeling anxious and have trouble remembering details — is reminded of the process and next steps, and also so that you have a timestamped record of the content of all conversations. Alternatively, make your own file note of the conversation, recording the date, time, location, author, event (“Telephone call to”), file reference and content. Such caution may not seem necessary in simple investigations of minor matters, but even apparently “small” or straightforward investigations can become complex or polarising, or expose further issues. Risks are often unforeseen, despite careful planning. It is safer to take a consistent and conscientious approach to documenting all investigations. Before the investigation starts — what do all participants need to know? When informing the participants about the investigation and explaining the process, it is best to contact the complainant first, then the respondent and then any witnesses. There is specific information that you need to exchange with each party and with witnesses. Most of the information you will share about the process will be the same for all participants. For each participant, you will probably do the following: • Contact them by telephone or in person and inform them of the investigation and the process (if they have not already been told that the investigation is to be commenced, such as by their line manager; see below). Let them know they have the right to bring a support person. Obtain the participant’s agreement to maintaining confidentiality and give them a chance to ask questions. For witnesses, let them know that no allegations have been made against them. Tell the respondent that they will have a reasonable opportunity to understand and respond to the allegations. If you rely on someone else to set up the interview (such as a supervisor at the worksite), you should still attempt to speak to the participant personally, prior to the interview. Without doing so, you cannot be confident that the participant has in fact been provided with a complete explanation about the process and their role in it. As the investigator, it is your responsibility to ensure that the participants understand the process and your requirements of them. • If possible, send them a brief explanation in writing after the initial conversation, so that there is a record of what they were told about the process and your role. A suggested checklist of the information to provide is set out below. • Contact the participant again to discuss their support person, if you have not already settled this. You will want to know who this person is before the interview so you can ensure they are appropriate, and not a witness or someone you (or the parties) are personally involved with. • Explain the key aspects of the process again at the start of the interview, and give the participant a chance to ask any questions about the process. This may seem overly repetitive, but remember, parties and witnesses have usually never participated in an investigation before. The better they understand the process, the less anxious they will be, and the more able they will be to participate fully. This process ensures that the interview will run as smoothly as possible and anticipates many of the issues that we have encountered which delay or disrupt interviews. For example, sometimes interviews cannot proceed because the unexpected support person is also a witness to the alleged misconduct or is otherwise inappropriate. Some interviews get postponed even before any questions are asked, because the participant challenges or refuses to agree to elements of the process. It is obviously preferable to deal with these sorts of issues before you are in the interview room. In our experience, most concerns or objections that arise on the day of the interview can be avoided if participants have had a genuine opportunity to understand the process and to ask questions beforehand. Communicating the investigation process at the start of the interview

It is advisable that in the initial stage of the interview, prior to beginning questioning, you mention the key elements of the investigation process and ask the participant whether they understand it and have any questions. While initial communications may seem to be lengthy and time consuming, in our experience, attention to detail at this stage of the investigation is critical to the success of the investigation. It is impossible to run a procedurally fair investigation, in which the participants are fulsome and honest in their responses, without a proper explanation to all participants in advance. Interviewing participants who do not understand the process or what you will do with the information you give them only leads to confusion, resentment and further disputes. In many legal cases and employment disputes, parties have sought to derail the investigation process or outcome by complaining, for example, that they were never told they could nominate witnesses or that they were not provided with the allegations before being required to participate. If you can clearly establish in writing what was provided to the participant, you will be able to respond confidently to such concerns. In addition, careful explanation of the process at the start of the interview serves a number of additional important purposes: 1. You can determine, face-to-face, whether the participant has actually understood the process. 2. The participant can ask you any questions before being required to respond to your questions. 3. The support person, if present, can be satisfied that the process has been explained and they can be asked to confirm their agreement to confidentiality and the scope of their role. 4. The investigator builds rapport with the participant. 5. The participant develops more trust in the process. 6. You are demonstrating your commitment to fair and proper process and taking steps to make the participant feel more empowered and comfortable. 7. The transcript of interview or notes you make will reflect what was explained, minimising any possible later claim that you did not explain the process.

Checklist: What to explain to participants at the start of the investigation You will need to explain: □ The scope of your instructions, for example: “I am investigating allegations of bullying made by Charles Hamilton against you. Those allegations have been provided in writing to you. It is my job to determine whether those allegations are proven or not, on the balance of probabilities. If I find that you did engage in the conduct Charles Hamilton claims, I will also make a decision about whether those actions were a breach of policy”. □ The organisation has asked (or required) the participant to assist in the investigation. □ The procedure you intend to follow in the investigation, its expected timing, and your role. □ That they are expected by their organisation to: participate in good faith; provide relevant and truthful information to the best of their knowledge; and comment only on what they themselves witnessed (which can include relevant hearsay evidence) but not what they guess, speculate or suspect has happened. □ The participant’s right to have an independent support person of their choice accompany them during the interview process, (subject to the support person not also being a witness or known to the investigator or the parties) and the support person’s role. □ The participant can request a break at any time in the interview. □ The participant may refuse to answer a question or can request to stop the interview at any time. If they do not provide information, however, the investigation will continue without the benefit of the participant’s perspective. □ They can nominate any relevant witnesses (complainant and respondent only), though the investigator will have final say over who is interviewed. □ All participants have a legal right not to be victimised as a result of making allegations, responding to allegations or participating in an investigation. You should state the repercussions should any such victimisation occur, and what they can do if victimisation occurs.

□ How you will protect the confidentiality of the information they give you □ How the information provided in the interview will be recorded, how it will be used in the investigation, where it will be stored and who will have access to it, and that you will give them a copy of the recording, transcription and/or notes of interview □ Nothing is off the record, and all comments made (including before and after a recording device is turned off) will be noted and, if relevant, included in the investigation. □ Their evidence may be put to any other party for a response and if so they will be identified by name. □ The strictly confidential nature of the process — get all participants’ agreement to maintain confidentiality, and to avoid speaking about the investigation to any other staff. □ Follow-up or second interviews may be required, and if so, you will contact them. □ How the participant can contact you after the interview to provide any further information □ Details of the Employee Assistance Program or other available supports in the organisation. This checklist, as well as template letters to the parties, is available for complimentary download at www.worklogic.com.au/downloads.

¶9.2 Initial discussion with the complainant In addition to the information set out in the above checklist which covers all participants, you should address the following additional matters in your initial conversation with the complainant: • Confirm the allegations that the complainant has raised, and ask the complainant whether they are complete and accurate. This will avoid any later confusion or disagreement about the scope of the investigation, recognising that they won’t be “complete” from the complainant’s perspective if the employer has determined to take some matters out of scope. • Obtain any missing particulars of the allegations, such as a date or location, in order to ensure the allegations can fairly be put to the respondent. • Demonstrate awareness of the complainant’s possible fear of reprisals, when explaining their right not to be victimised. • Explain whether or not the respondent will be suspended during the investigation, or whether any other alternative working arrangements are to be implemented. • Check whether they are looking for any additional interventions. • State who is responsible in the organisation for making disciplinary decisions based on the investigation report. • Explain who is going to receive a copy of the transcript or notes of interview and the investigation report.

¶9.3 Communicating the process to the respondent Communicating the process to the respondent can occur before or after the complainant has been interviewed. If the complainant is on sick leave and can’t be interviewed immediately and there is going to be a delay before the investigator is ready to interview the respondent, there is some wisdom in not immediately informing the respondent about the investigation. This will help to minimise their stress and anxiety. If, however, the respondent’s employment has been suspended or the respondent will likely become aware of the investigation (from other participants), then do explain the process to the respondent at the earliest opportunity. The respondent will often have questions about the organisation’s process and also the fact that the investigation is being conducted at all. If you are unable to answer these questions, you should refer the respondent to the appropriate person in the organisation who can do so. It can be helpful to explain to the respondent that the interview will be an opportunity for them to provide responses to the allegations.

Should they elect not to provide information, the investigation will proceed anyway and the complaint will still be assessed. In addition to the information set out above, which is provided to all participants, respondents should also be told: • that you have not pre-judged the allegations • that they will be given an opportunity to respond to the allegations in an interview • that they will also have an opportunity later to comment on any contradictory evidence • that any victimisation or detrimental action against the complainant or any witness is unacceptable and may result in disciplinary action • whether they will be suspended during the investigation, or whether any other alternative working arrangements are to be implemented • who is responsible in the organisation for making decisions about further steps, including disciplinary action, based on the findings of fact in your investigation report • the possible consequences if the allegations are found proven, and • who is going to receive a copy of the transcript or notes of interview and the investigation report. Confirm receipt of the written allegations Before the interview, the allegations must be provided to the respondent in writing so that there is no ambiguity as to what is alleged and so they have a reasonable opportunity to respond. The allegations can be provided to the respondent by the investigator or another senior person who knows about the allegations. The respondent must be provided with the allegations in writing before you interview him/her.1 If you have not been responsible for providing the respondent with the allegations, double check at the start of the interview whether the respondent has received a copy of the allegations, and that they have had a reasonable time to prepare their response before the interview is conducted (at least 24 hours, but ideally a couple of days). If the respondent indicates they have not had enough time, delay the interview to give the respondent enough time to prepare and to arrange a support person. It is always preferable to deal with this issue, and ensure that adequate notice of the allegations has been given, before the interview rather than at the conclusion of your investigation, when it may arise as a complaint about the fairness of your process. Provide notice of possible disciplinary action Where the findings may justify disciplinary action, the respondent must be put on notice of this possibility before the commencement of the investigation. The notice of possible disciplinary action should state, for example: “Please note that if the allegations are found to be proven, the proven actions may constitute a breach of the organisation’s code of conduct, and may constitute serious misconduct and could result in disciplinary measures being taken against you, up to and including termination of your employment.” Providing notice of possible disciplinary action can be a vexed issue. Some participants who receive such a notice perceive the matter to have been prejudged and see the notice as a “threat” to discipline them. Quite understandably, the notice can provoke mistrust and fear about the process. Careful explanation about why this notice is provided can address these issues. For example, explain that the notice is commonly provided in all workplace investigations so that the participant may make an informed decision

about their support person or advisor, and their decision whether and how to participate in the investigation. The notice should not be read as an indication that the matter has been prejudged in any way, as it is only one possible outcome of many, and the outcome will not be determined until the end of the process. Footnotes 1

Gilmour v Commissioner of Police [2009] NSWIRComm 51.

¶9.4 How much information to tell the witnesses As discussed in Chapter 5, when communicating with witnesses, it is important that you adhere to your duty of confidentiality to the greatest extent you are able, while also investigating thoroughly. To respond to questions about what they have witnessed, the witnesses need only be told enough information to identify the events you will ask them about. They do not need to be told about all the allegations if they have only witnessed some of them. They don’t need to be asked about their general views of the complainant and respondent, as this is unlikely to be relevant to your investigation. The witnesses may not need to be told who the complainant and respondent are, or even what is alleged, unless you need to reveal this to obtain their evidence. Minimising the information provided to witnesses can help to: • maintain the confidentiality of the matters being investigated • avoid any witness collusion before the interview • minimise speculation and gossip in the workplace, and • obtain the freshest and best evidence, without any inadvertent prompting or leading of the witness. When communicating with the witnesses prior to interviews, we suggest that you disclose as few details as practicable about the allegations. When speaking to witnesses in order to arrange an interview time, it is likely that they will ask you what the investigation is about. A suitable response, to keep this discussion general, may be, for example: “I am conducting an investigation into a complaint about workplace conduct. There are no allegations against you, but you have been mentioned as someone who might have witnessed something relevant to the matters I am investigating. I will give you more information in the interview. I confirm that there have been no complaints or allegations against you.” If necessary, before the interview, you can explain the reasons for not disclosing the complainant’s and the respondent’s names and details of all the allegations. Explain the importance of confidentiality in relation to allegations which have not yet been tested. Usually they will be requested or directed to participate by the organisation. It is often helpful to state that, in order to make a fair and accurate judgment about a complaint raised, their information is important and that is why they are being asked to participate. If collusion between witnesses is considered to be a low risk, and witnesses ask for more information in order to make an informed decision about how they participate and whether they want a support person with them, there is nothing procedurally unfair about providing them with the names of the respondent and complainant, after obtaining from the witness a clear commitment to maintaining confidentiality. You will need to use your judgment in balancing the competing obligations to maintaining confidentiality and preserving reliable evidence on one hand, and, on the other hand, providing all participants with enough information to make informed choices about how they participate. If you anticipate that you will conduct more than one investigation at the organisation, it is useful to create pro-forma written communications that cover all of the above matters, so

that you can use them consistently and with confidence.

Key points • It is critical that you explain the investigation process to all of the participants before interviewing them. • Keep a record of what you have told participants. • Give the participants a genuine opportunity to ask questions about the process. • Ensure the participants understand and agree to the process standards, in particular the requirement of confidentiality and the prohibition on victimisation of other participants. • When communicating with participants, offer support and care, while also keeping an appropriate level of formality to your communications. • Ensure your impartiality and the appearance of impartiality. • Procedural fairness requires that the respondent is informed of any potential disciplinary action which may be taken against them if the allegations are substantiated, and that they are provided with all allegations in writing prior to the interview taking place. • In the interview, do not proceed with your interview questions until you are confident that the participant understands the process. • Avoid possible collusion and breaches of confidentiality by witnesses before their interviews — only provide sufficient information for them to make an informed decision to participate and to respond to questions about the events they may have witnessed.

Case Study — Yellow Duck Limited — Episode 3: Communicating the investigation process You have decided that you are the best person to investigate Sam’s complaint (page 47). You are not his manager and you were not involved in any previous grievances or complaints. Furthermore, your advice to Sam and Kristen was limited to their communication about Sam’s performance. Although you have heard others’ concerns about Sam’s capacity and honesty, you are confident that these won’t affect your decision-making. You believe that you can be, and will be perceived to be, impartial. 1. Complete the “Interviewing witnesses” part of the investigation plan (see page 181). Next, you meet with Sam and tell him that you are investigating the allegations made against Marisa. 2. When he enters the meeting, you see that Sam has not brought a support person with him, although you think you told him that he could have one. Do you say anything to Sam about this? 3. Sam tells you that he doesn’t agree to the matter being investigated if he is going to be identified as the person who has brought the complaint against Marisa. He says he fears that she will victimise him further. Sam says that if you proceed with an investigation you will be breaching his rights, as he told you about his concerns ‘privately’ and on the condition that you didn’t tell anyone about it. How do you respond? 4. How will you explain your role as investigator to Sam? Note the Key points. 5. Sam tells you that he is feeling really stressed, and that knowing this investigation is about to take place will “send him over the edge”. How do you respond to Sam’s concerns?

Chapter 10: Effective Use of an External Investigator The investigator — instructor relationship

¶10.1

Instructor role versus investigator role

¶10.2

Maintaining the external investigator’s independence ¶10.3 Updates during and after the investigation

¶10.4

Costs of an external investigator

¶10.5

¶10.1 The investigator — instructor relationship As discussed in Chapter 6, in some circumstances it is best to instruct an external investigator to conduct an investigation. External investigators are usually appointed because of: • perceived or potential bias of internal personnel • the potential internal investigator having had prior involvement with the parties • direct reporting lines of key participants to the potential internal investigator • the time, experience and resources of the potential internal investigator • high risk for the organisation, requiring a clearly arm’s length process • complex subject matter which requires special investigative skills, and • the need for legal advice, such that a lawyer should instigate the investigation under legal professional privilege. This chapter addresses how to best manage the relationship with an external investigator when you are the person responsible for providing instructions to the investigator. In this chapter, your role is described as the “instructor”. Think about how you will appoint and set the ground rules for an external investigator, and how closely you should be managing their work. Consider the following scenarios: what issues arise? Scenario 1. The complainant has been accused of low-level repeated fraudulent activity over a period of years, amounting to over $20,000 of misappropriated monies. You are pretty sure the allegations are baseless. The complainant has been the treasurer of your bowling club for years. You know there have never been any problems there, as you were on the management committee for a while. You tell the external investigator that the investigation is a formality to ensure that the company has done the right thing and to satisfy the insurer, but there is no way that this case will amount to anything. You are also mindful of costs, and let the investigator know that “close enough is good enough with this one”. The investigator wants to engage an external auditor, but to audit the accounts for the last five years would cost more than the total alleged to have been stolen! You think the investigator is going too far, as this is surely all a storm in a teacup. What should you do? Scenario 2. You tell the external investigator that the allegations have been made by a difficult employee who complains regularly, is considered to be a “problem” in both their performance and their working relationships, and has created a toxic workplace within their department. Now that performance management is underway, a bullying and harassment claim has been lodged. You tell the investigator that it will be a simple matter to determine that the employee’s allegations have no grounds. The statement of allegations is 25 pages long and complains of bullying over a period of three years. It

references the organisation’s policies, emails and performance-management documents that are “to be provided”, and claims that the complainant has suffered a serious mental illness as a result of the alleged behaviours. You tell the investigator that the complainant is prone to exaggeration. The investigator believes that the matter is complex and will involve lengthy interviews to address all the allegations and examine the documents. You tell the investigator that they will be able to tell straight away what a liar the complainant is. The investigator, on the other hand, responds that he will not make any findings of fact or judgments about credibility until he has interviewed all relevant participants and considered all the evidence. He proposes to interview 13 witnesses but you can’t see how this will be necessary. In any case, the CEO is expecting the report to be completed by the end of next week. The investigator has also reiterated that he will remain impartial and unbiased at all times and that your comments that the complainant is a “liar” or “toxic” do not form part of the evidence and won’t be considered. You feel like you are talking at cross purposes and the investigator is not giving enough consideration to the context. What should you do? Both scenarios illustrate a situation where you, as instructor, have a clear idea about the merits of the allegations, how long the investigation ought to take, how much it should cost, what witnesses and evidence are relevant, who is responsible for making key process decisions and even what findings of fact are likely to be open to the investigator on the evidence they will collect. The investigator, on the other hand, has a very different view. Be aware that if the organisation decides to engage an external investigator on contract to conduct the investigation, the organisation has bought the proper application of a fair and thorough process by an independent person. It has not bought any particular outcome. It may be frustrating for you to see a slow investigation, or avenues of enquiry being pursued that you believe will come to nothing, but so long as the investigator is working within the scope, and they are not otherwise acting inappropriately, you must leave them to run the process. Otherwise you will compromise the very thing you are paying for: a defensible outcome. To avoid a mismatch in expectations as to the scope of the investigation, discuss with the investigator the company’s tolerance of risk, the level of detail expected in the analysis and report, the level of certainty expected in the findings, the investigator’s impartiality, and total budget. Unless there is clear communication at the outset and during the investigation about who is responsible for decisions about timing, scope and relevant evidence, the relationship between instructor and investigator will be a rocky one. With careful management and clear parameters set and maintained from the outset, much of this potential tension can be managed effectively. In both the above scenarios you should clarify with the investigator the scope of the investigator’s role and the scope of your role as instructor. For example, the investigator’s role is to independently and impartially collect and assess the evidence. Part of the instructor’s role is to protect that independence and impartiality by avoiding attempts to persuade or influence the investigator, and to support the investigator to fearlessly and independently conduct a thorough investigation. Remember that the external investigator’s report will not be useful or defensible if the complainant or respondent can later show that the investigator was not truly independent, failed to consider relevant evidence, rushed to deliver the final report before all the evidence was available, or was swayed by the instructor’s prejudgment of the matter. A guiding rule for discussions between the instructor and the external investigator is to ensure that the investigator’s independence and impartiality are protected at all times. Any comments you make to the external investigator about the likely outcome of the case or the credibility of the parties could be understood to be improper influence. Avoid suggesting anything to the external investigator that could put pressure on them to make findings one way or the other. If you have worked with the external investigator before, or the investigator is from a preferred service provider and is regularly instructed by the organisation, take particular care to maintain an arm’s length relationship with the investigator during the investigation. Otherwise a party might later argue that the external investigator had a vested interest in certain outcomes to encourage ongoing work, or that the instructor was overly close to the investigator. It is prudent for the prior relationship between the instructor

and the external investigator to be disclosed to the parties and a comment included in the report about how the investigator maintained his or her independence despite that professional relationship. Remember that, if you are the instructor, you cannot also be a witness. If it becomes clear during the investigation that you, as instructor, will need to give evidence about a factual issue that has arisen, you will need to step aside as instructor. Next, this chapter considers some of the key strategies you should employ as instructor to communicate effectively with your investigator, before and during the investigation. Questions to ask an external investigator before appointment The quality of external investigators varies hugely. If the investigator who is appointed needs to step aside, it is very problematic to change investigators halfway through the investigation, and as we have just discussed, instructors should be as hands-off as possible once the investigator has commenced. This means that the appointment decision is crucial. Do make enquiries about the investigator’s experience, approach, skill and cost before engaging them. You may wish to ask the following sorts of questions of any investigator whom you are considering to engage: • Can you tell me about your experience in workplace investigations? • What is your understanding of workplace bullying (or whatever the alleged misconduct is)? • What investigations training have you done? • Do you or your company hold a private investigation licence? • How many cases of this type of misconduct have you investigated before? • How long will the investigation take, and do you have any leave planned during that period? • What investigation process will you follow? • What steps do you take to ensure procedural fairness for the parties? • How do you explain the process to each party before you begin the investigation? • Do you have written guidance for me as instructor, and for the participants, about the investigation process? • How, and what, will you report to me as instructor on your progress during the investigation? • What are your fees? Are there additional costs for transcripts or travel? How often will you invoice the organisation? Can you give me an estimate of fees, once the allegations are known? • How do you store evidence and other records? • If you learned during the investigation that illegal activity may have taken place, what would you do about it? • How much detail do you usually include in your investigation report?

¶10.2 Instructor role versus investigator role Where there is insufficient clarity about the respective roles of the investigator and the instructor, the investigator can feel that their independence is being challenged during the investigation. In turn, you may feel that your experience and wider knowledge of the landscape in the workplace are not being given due consideration. You may also feel you have “lost control” of the investigator who insists on remaining

independent; meanwhile the investigator may feel that you are interfering in the process. Being clear upfront about your respective roles — with clearly delineated responsibilities — will help keep the relationship on track. The role of instructor 1. The instructor determines the scope of the investigation. • Determine the scope and number of allegations to be investigated by the investigator. You may decide that some of the allegations are outside the scope. This may be because they raise matters to be dealt with in another process or because they are about trivial matters that don’t require investigation as the allegation would not amount to a breach of policy, even if proven. • Explore with the investigator your budget and request an estimate of fees, based on what is known at this early stage. • Confirm in writing the allegations which the investigator is to investigate. • Inform the investigator whether you want them to assess whether any proven actions amount to an apparent breach of the organisation’s policy, process, standard or procedure — keeping in mind that the organisation must not “contract out” its decision-making about discipline of an employee. • Provide the investigator with the relevant rules (enterprise agreements, awards, employment policies and procedures) which apply at the site, govern employees’ conduct or set out the way in which the organisation will handle the matter. • Confirm to the investigator in writing that the respondent has been provided with the allegations. 2. The instructor gives the investigator direction on any procedural issues that arise during the investigation. • During the investigation, if necessary, provide additional documents or other information which the investigator requests. • When requested, provide the investigator with instructions about procedural matters, such as setting a deadline for the participant’s input into the process. • Notify the investigator if any participants have a medical condition or other special needs, but only if that condition may require accommodation to enable their participation in the investigation. 3. The instructor informs the participants of the investigation. On behalf of the organisation, the instructor will inform all of the participants about the organisation’s decision to investigate and advise them of the following: • the organisation has instructed an external investigator to conduct an investigation • they are requested to participate in the investigation as a witness/they have an opportunity to respond to the allegations • the investigator’s contact details • the organisation’s commitment to procedural fairness, due process, confidentiality of the process and compliance with its own policies and procedures • the legal requirement not to victimise others as a result of their participation in the investigation or for having made allegations, or for being the subject of allegations, and also the organisation’s reporting process if victimisation were to occur • they may have a support person present who is not a witness or in any other way involved in the investigation

• the support services (if any) that are provided by the organisation, such as an Employee Assistance Program • explain who will consider the findings and make a decision about any next steps, once the report is written, and • advise the respondent(s) (and confirm in writing) (1) of the precise allegations against them, and (2) that disciplinary action may follow as a result of the investigation findings, if they are found by the organisation to have breached a policy, procedure or law. Once the instructor has informed the participants of the investigation, the investigator will then contact the participants shortly afterwards to explain the investigation process in detail, answer the participants’ questions and confirm that the participants understand the process. 4. The instructor manages reluctant participants. Sometimes the respondent or other participants seek to delay or avoid participating in the investigation. Participants commonly do this by: • claiming to have a full diary of work engagements and to be unable to make time • making and then cancelling appointments to meet the investigator • suddenly deciding to take annual leave • going on sick leave • raising strongly worded concerns about relatively minor procedural issues • claiming to be waiting for legal advice or union representation, or • the non-availability of their advisor or support person at the proposed interview time. Dealing effectively with reluctant participants will usually involve both the investigator and the instructor. It is clearly legitimate for the respondent to delay participation if you have not provided them with a clear statement of the allegations they are responding to and a clear statement of potential consequences and the manner in which the matter will be adjudicated, if they are genuinely unwell, or if they are actively seeking advice and support. It may be reasonable for them to seek adequate time to get expert advice and to prepare their response, depending on the complexity of the matter and consistent with other legitimate demands on their time. As instructor, you can best manage any apparent delaying tactics by ensuring that your organisation’s procedures are adhered to. This includes the process for seeking and taking leave, and the allocation of work time to address the matter, as well as addressing any apparent delaying issues as soon as they arise. The investigator can also assist with reluctant participants by: • clearly explaining the process • regularly contacting the participant • reminding them of their agreement to the process • giving them an opportunity to ask questions about any concerns they have, and • building rapport by being respectful and professional at all times. It is also usually helpful for both the investigator and the instructor to explain to the reluctant party that if they do not participate, the investigation will continue without the benefit of their perspective. Reiterate that the interview is their opportunity to have their version of events on the record.

5. The instructor manages logistics in the workplace and for the interviews. In your role as onsite instructor of an external investigator, you may also provide useful assistance in the following ways: • If interviews are to take place in the workplace, arrange for a confidential meeting room in which to conduct the interviews, together with a break-out room if possible — this should not be in easy view of work colleagues of the participants. • If interviews are to take place remotely using an internet-based videoconferencing platform, such as Skype, Zoom or Microsoft Teams, then also check that the interview will be appropriately confidential. • You may organise the interviews for the investigator, particularly where the participants are hard to contact, such as shift workers or staff who are not easily contactable during their working hours. • Alternatively, provide the investigator with the contact details for the participants and instructions about how best to contact them. • Where you or the organisation has physically separated the parties for the duration of the investigation, or put in place a different interim reporting relationship, inform the investigator of the arrangement. • If you or the organisation has made the decision to stand down the respondent because there is a risk to either the business, the integrity of the evidence or the health or safety of other participants, you should inform the investigator of this fact. Time is of the essence when an employee has been stood down. • Assist the investigator to secure computer records and any other evidence that might be at risk of tampering or destruction. 6. The instructor can provide their comments on the draft report and advises the participants of the outcome. • When the investigator gives you the investigation report in draft, you may request a change of format (eg request a summary of the findings to use to communicate the outcome to the parties) or more or less information and analysis about an issue. • Inform the participants of the investigator’s findings, usually in “executive summary” or letter form, as well as the organisation’s decision about what should happen next. The instructor’s role is not to: • give any advice or instruction to the investigator as to the organisation’s preferences for the investigation’s findings (for or against the respondent) • give opinions about the participants (which are not relevant evidence), such as, “This is the third complaint against this respondent for sexual harassment; he just does not get it” • make decisions about what constitutes relevant evidence regarding the allegations, or what findings should be made on the basis of the evidence collected, or • instruct the investigator to change their findings of fact or comments in the report, as this will compromise the investigator’s impartiality. The investigator’s findings of fact must be made impartially and based on the evidence which they have collected in the investigation. If the analysis or findings in a report are edited or influenced by the instructor in any way, it will not be legally defensible as an independent investigation. The role of the external investigator, with respect to their instructor 1. The external investigator follows any instructions about the organisation’s process.

• The external investigator satisfies themselves that the process steps required by you, the instructor, have been completed. • Where participants raise additional allegations, procedural objections or any other matter that may be of immediate concern to the organisation, the external investigator must inform you immediately — they must not include any additional allegations in the scope of the investigation without express instruction to do so from you. 2. The external investigator keeps the instructor up-to-date. • The external investigator provides updates about the progress of the investigation, in terms of work completed and work anticipated, as well as the likely completion date. • If requested, the external investigator will review and update any estimate of fees and disbursements during the course of the investigation. 3. The external investigator investigates impartially and independently and writes an independent and impartial report for the instructor. • The external investigator should remain at arm’s length from you, as instructor, during the investigation, especially if the investigator has previously worked with your organisation and/or is a preferred investigation services provider. • The external investigator completes a report which is written for the instructor as their audience. The written report should give you, as instructor, enough information to be able to understand how the external investigator came to their conclusions, on the basis of the evidence they collected. • The report can be provided to you in draft form, for your comment as to length or format, but not for the purpose of changing any independent conclusions, before it is finalised. The external investigator’s role is not to: • give any legal advice to the organisation or to the participants — even if the external investigator is a lawyer (the role of investigator and legal advisor are best kept separate) • contact any employees or other people directly before you have advised those people • direct what disciplinary steps the organisation should take against a respondent who is found to have breached policies — as noted above, the investigator cannot take over the organisation’s role as the ultimate decision-maker in employment matters, or • provide employees with a copy of the written report or inform them of the findings.

¶10.3 Maintaining the external investigator’s independence One of the main reasons why organisations decide to engage an external investigator is to ensure that the investigation is conducted by an independent and unbiased person. Be very careful that you do not provide the investigator with any instructions that may be perceived to interfere with a fair, impartial and independent process. If you have engaged a skilled and experienced investigator, and given them sufficient instructions about the organisation’s process, there should be no need for you to instruct them about whom to interview, a participant’s credibility or past history, how long the investigator should spend with a participant or what evidence to consider. Comments about such matters may be intended to assist the investigator to conduct an efficient process and to come to the “right” conclusion. In reality, they only compromise the investigator’s impartiality and control over the process. While you do have a legitimate interest and responsibility for the time frame and the cost of the investigation, you must avoid damaging the investigator’s independence to determine freely what relevant

evidence they need to collect and how they will collect it. As noted above, this independence is what the organisation is paying for when it engages an external investigator, so it is worthwhile protecting that investment. Let the investigator run the investigation, so that the report can be relied upon in any future dispute, and so that staff in your organisation can be confident of the fearless impartiality of the process. Think about the possible implications if you provide your investigator with information which is designed to hurry up the process, give them irrelevant and prejudicial background about the participants or help the investigator make the “right” decision. Observations that you intend to be helpful might be misunderstood by the investigator, or any court or tribunal which later reviews your correspondence. For example, the investigator might interpret your comments as: • “We want to get rid of this respondent. As soon as you have made your findings we are going to move him out of the organisation.” • “This complainant is a major troublemaker but her allegations are always so trivial. We are only doing this investigation because the union is insisting on it but we are not going to do anything no matter what you find so don’t spend too much time on this please.” • “We dealt with a matter like this last year, same respondent, same sort of behaviour. He is clearly a serial bully and I’ll send you all the info about that matter before you get started so you can see his modus operandi in the past.” These sorts of observations expose the investigator to your prejudgment and your preferred outcome of the matter. They might have the unintended consequence of the investigator feeling pressured in their approach to the investigation or the findings they may make. Such observations are unlikely to interfere with a competent investigator’s proper assessment of the factual evidence. They may well make it easier, however, for an aggrieved party to argue that the investigator was inappropriately influenced and thus not impartial. Therefore, even if you have a wealth of information you have learned about the parties which you genuinely believe might save the investigator time and effort, refrain from providing any information that could be seen to be prejudicial. If an investigator makes enquiries along these lines, be confident to explain the reasons why such opinions would not be helpful, and be clear that you wish to protect their independence. The only information that is genuinely useful will be information that lets the investigator know of any special needs of a participant, and which should inform the investigator’s approach. For example, it will be useful for the investigator to know if a party has a disclosed mental illness, a propensity for extreme anger or reluctance to participate in the process, or if a participant has been directed to participate against their will. In so far as you might offer information about past similar behaviours by the respondent or complainant, it is usually more prejudicial than helpful. If past behaviours are truly relevant, they will probably be referred to by relevant witnesses, and the investigator will then be able to assess the relevance and weight of that past history as “similar fact evidence” (see Chapter 17).

¶10.4 Updates during and after the investigation Once you have instructed the external investigator, to ensure their independence, you have to give them control over the investigation and the findings. This sounds obvious, but in practice it can be very difficult to do, especially if you have not worked with that particular investigator before, or you have strong views about the subject-matter. Even if you have clearly agreed with the external investigator about your respective roles and responsibilities as set out above, conflict can still arise when you realise that the investigator may not be going to make findings of fact in a way that you anticipated or hoped for, or when the investigation takes longer than anticipated. You will not have as deep a grasp on the details of the evidence and the process

as the investigator, so their decisions and approach may not be easy for you to understand. If you have concerns about something the investigator is doing, talk to the investigator before instructing them to do something different. You may find that there is good reason for their actions, or that the participants have misunderstood the investigation process or are misleading you. If you step in and tell the investigator to take certain steps, conclude the matter or reconsider their findings, the investigator will rightly be concerned about their independence and impartiality. In short: set up the investigator for success in your initial instructions, then let them do their job. Updates during the investigation Ask the investigator to provide you with regular updates about their progress, the next steps and any change in their expected completion date or estimated fees. You might request a weekly email for example. Often you will have a number of stakeholders within the organisation asking you how the investigation is proceeding and when it will be concluded. A regular update from your investigator about what step they are up to will enable you to keep those stakeholders informed about the investigation’s progress. In any discussions with the external investigator during the investigation, it is not usually appropriate to ask the investigator to anticipate their findings of fact before they have collected and considered all the evidence. Avoid discussions of this sort until the end of the investigation. This is because during an investigation, at various times, the investigator may have collected evidence that clearly supports one party’s perspective, only to find that, after consideration of further relevant evidence and witness interviews, the facts appear to be very different. Remember to keep your investigator at arm’s length. Your investigator’s updates and your responses and communications should always remain professional and neutral. Emails can later be discovered in legal proceedings, and might be found to indicate that your independent investigator was too “close” to the organisation and was swayed by your opinion about the participants or the preferred outcome. After the investigation Often participants in an investigation will reveal to the investigator a lack of recent training, a tolerance by management of certain types of misconduct, compliance risks or other factors that make up a workplace culture in need of attention. Over the course of the investigation, the external investigator may get a perspective on systemic and widespread issues in the workplace which are not strictly relevant to the allegations being investigated and are not therefore appropriately part of the investigation report. The investigator’s broader perspective on the workplace culture and what the complaint was really about is often very useful to the organisation. To capture this useful intelligence, after the investigation report is concluded, attempt to meet with the investigator to explore those wider issues and how the organisation can address them. See Chapter 21 for further discussion of next steps after the investigation.

¶10.5 Costs of an external investigator The cost of workplace investigations conducted by an external consultant varies depending on the complexity of the matter, the level of formality of the process and the consultant’s rates. Ask your external investigator for an estimate of the cost of the investigation and ask to be billed regularly during a long investigation. Remember, however, that it can be difficult for the investigator to know exactly how much the investigation will cost in advance, as the complexity and number of allegations, the anticipated length of interviews, the number of witnesses and the volume and complexity of the evidence can vary widely and change during the investigation. The amount of work required to get instructions and manage the investigation’s logistics can also vary. The external investigator should still be able to give you an initial estimate and then regularly update you as the matter progresses. When first instructing an external investigator, explore what options exist to help manage costs. Your external investigator should be able to answer all your questions and discuss the likely scope and size of the project. The following steps are recommended: • Describe your expectations of the service and find out whether the investigator thinks those

expectations are realistic. • Explore with your investigator how much the investigation will cost and how much time you think it will take. An early conversation about your expectations will help the investigator to deliver a report within your budget. • Ask the investigator to explain all the variables which can affect cost and how unpredictable these are. • Instruct the investigator to let you know as soon as anything happens that may affect cost expectation. • Ask to be invoiced regularly so that you can monitor costs against progress. • Ask for regular updates on the timeline of the investigation, such as a weekly email. Regular discussions about the amount of work the investigator is doing will ensure that you are not taken by surprise at the end of the investigation. • Explore possible strategies to manage the investigation’s costs. During the investigation, you may be able to help to minimise the costs in the following ways: • Ensure that the scope of the investigation is clear from the start. • If the initial allegations are not clear, you or another internal staff member or support person can help the complainant to particularise the allegations. This will save time for your external investigator and allow the investigation to start promptly. • Ensure that you do as much as possible to explain the process to the participants, so that you can minimise the time that the investigator spends responding to process questions. • You could arrange interviews and meeting rooms, and liaise with IT to obtain email or other electronic records. • Respond promptly to the external investigator’s questions and requests. This will save them having to follow up. • Try to avoid providing large batches of documents to the investigator unless you are certain they will be relevant, as the investigator will need to read and consider all those documents, whether or not they are material to the investigator’s final decision-making. Organising the material into a workable form will also help minimise the investigator’s time and costs. Key points • The investigator and instructor roles are separate and quite different. Make sure you are both clear on exactly what you will do as instructor and what the investigator will do. • Your external investigator is valuable to you because they are independent and therefore much less likely to be accused of bias. • Protect the independence of your external investigator by agreeing and maintaining clear and distinct roles and responsibilities. • Avoid providing the investigator with background information and personal opinion, unless it is clearly necessary for the investigator’s process to run smoothly. Giving the investigator your own views about the allegations or any of the participants might later be argued to have influenced the outcome. • Obtain regular progress updates from the investigator during the investigation. • Explore options to manage and monitor costs as the investigation progresses. • Give comments on the draft report, but do not attempt to change the investigator’s mind about the findings or edit the report’s content for any reason unrelated to the fact-finding process.

SECTION 4 Gathering the Evidence Editorial information “The truth is rarely pure and never simple.”Oscar Wilde, The Importance of Being Earnest

Chapter 11: Evidence What is “evidence”?

¶11.1

Key principle: Relevance of evidence

¶11.2

What relevant evidence will you seek? ¶11.3 Key principle: Reliable evidence

¶11.4

¶11.1 What is “evidence”? Evidence is the material offered, and sought, in the investigation for the purpose of enabling the investigator to reach a decision on the issues in dispute. In a workplace investigation, evidence is offered by the parties to convince the investigator of the truth or falsity of the allegations. Evidence is proactively sought by the investigator from other sources to test the parties’ versions of events. Evidence can take many forms. It typically includes information provided by the participants in interviews, copies of emails, documents and financial records. Digital or electronic evidence includes: audio or visual recordings, photos, records of internet sites visited or posts made to internet sites (such as social media), computer data, GPS location data from cars, mobile telephones and other equipment, records from security systems such as swipe cards, and the date, time and content of telephone calls, SMS and instant messages. Evidence can include electronic records and associated meta-data, such as digital photographs with the embedded date and location. It can also include biometric data gathered as attendance records. Some forms of evidence are more credible and persuasive than others. Some types of evidence are problematic, because they are less reliable, or because reliance on that type of evidence is likely to be unfair to one of the parties because it is overly “prejudicial”. As an investigator, you will need to make careful and defensible decisions about what evidence you collect and consider. Taking care to collect useful, reliable, revealing evidence — and to disregard any potentially misleading or unreliable evidence — will position you to draw the right conclusions at the end of your investigation. While decisions about the collection of evidence may appear straightforward at the outset, a range of competing interests are at play. Keep in mind five key questions as you collect and assess evidence: 1. Is this evidence “relevant”? 2. Is it appropriate to rely on this evidence in my decision-making? (Put another way, is it reliable and “admissible” in the investigation process?) 3. How credible (worthy of being believed) is this evidence? 4. How much “weight” should I give it? 5. What other evidence should I collect? The way you are alerted to the existence of the evidence, the order in which you collected it and how you obtained it are all relevant to the credibility of the evidence and your right to have and rely on that evidence in the investigation. The evidence that participants provide to you voluntarily, compared with the evidence you discover later from other sources, can influence a participant’s credibility. If you need to put documentary evidence you have obtained from a witness to one of the parties for their comment, you may need to tell them how you obtained the material in order for them to be able to respond to it. The provenance of the evidence should therefore be recorded. If a party later raises a concern that you were not entitled to see the evidence (for privacy or other reasons), you will then be able to describe its source and how you collected it.

¶11.2 Key principle: Relevance of evidence As a rule of thumb, the evidence you collect and consider in order to make your findings must be “relevant” to establishing what happened. Evidence will be relevant if it has a bearing on or a connection to the allegations in question. For example, if Joleen is accused of fraud on three consecutive Wednesdays, is it relevant to know what she ate for lunch? It is relevant if she ate sushi in Wollongong because she was working out of the Wollongong regional office on those three days, and the computer from which the fraud was conducted is located in the North Sydney office. In the following case example, an investigator allowed irrelevant evidence to influence her findings, which were then indefensible. Case example Martin v Padua College (Human Rights) (Correction) [2014] VCAT 1652; Pearson v Martin [2015] VSC 696 A teacher, Mr Martin, was dismissed from his job on the basis of an investigation report that found he had “groomed” a student while she had been at school. VCAT Senior Member Megay found that the investigator had been swayed by, and in fact relied upon, irrelevant later evidence (the commencement of a lawful sexual relationship between the teacher and the 18-year-old former student). The report findings were not defensible because: • the investigator had a strong focus on the later conduct and “the report had worked backwards from the lawful sexual relationship and viewed all the retrospective evidence through the lens of grooming …” • the evidence of the subsequent lawful sexual relationship was, in fact, not relevant to the allegation in question, namely, that the teacher, Mr Martin, had groomed the student for such a relationship while at school, and • there was no other objective evidence to support the alleged grooming.

In your workplace investigation, supposing the complainant arrives at his interview with a USB stick, and tells you, “This contains all the relevant evidence you’ll need to prove there has been a campaign to drive me out of the organisation and there is a lot of material in there that you really should know about to get the full picture.” You will need to consider whether it is appropriate for you to spend time looking through the documents, reading and considering all that material to determine its relevance. An effective way to manage large amounts of material provided by a party is to explain to the party that they should identify which of the materials that they have brought are relevant to which allegation, and how they are relevant. In another example, if a party demands that you conduct interviews with a large number of character witnesses, to establish her exemplary character, it is appropriate to decline. Character witnesses are very rarely relevant to whether the alleged events actually occurred. It is possible that the party may complain that you failed to consider all the material they sought to give you. Ensure that you explain clearly to the parties, and include in your report, that you are instructed to make findings about specific allegations, and that you have chosen not to look at material that is not potentially relevant to the allegations.

¶11.3 What relevant evidence will you seek? Chapter 8 describes what your investigation plan should include. In relation to relevant evidence, your investigation plan will describe: • what information you have so far. At the planning stage of your investigation, you may only have the allegations in whatever form they were received from the complainant, possibly some documents such as emails or diary notes provided by the complainant, and, the organisation’s policies • what further information you need • who can provide you with the documents, data and other information you need • whether you need any “expert” help or opinion

• whom you must interview, and whom you might also need to interview, depending on what the other evidence shows • what you need to find out from the individuals you interview, in general terms • the questions for each participant (noting that this may change), and • the possibility of a site visit. Be diligent and thorough in assessing what other relevant evidence is potentially available and should be sought by you. This decision is yours alone, as the impartial and independent investigator. Case example In McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243, the evidence relied upon was incomplete, unreliable and did not justify the findings made by the investigator. Ms McCauley alleged that while working with the respondent chef at the resort, he commented that he could smell Old Spice, sniffing the air and repeating the comment on a number of occasions over a period of days. He also allegedly called her a “cougar” and made growling noises in her ear and as she left for the day asked her for “one last growl”. Ms McCauley snapped, swearing at the respondent and telling him to stop it and he was being ridiculous as she was old enough to be his mother. The respondent replied “Don’t worry, I’m a happily married man.” This exchange was witnessed by co-workers. Ms McCauley filed a complaint and went on stress leave. Upon her return to work she was advised that the matter had been investigated and her complaint was unproven. Ms McCauley was subsequently performance managed and asked to leave. In reviewing the investigation, QCAT found there were serious errors in the investigation because the HR manager who conducted the investigation: • failed to obtain direct evidence in interview with Ms McCauley, relying instead on the hearsay report by the HR person to whom Ms McCauley made the complaint • did not obtain direct interview evidence from the respondent in relation to Ms McCauley’s allegations, instead allowing him to provide a witness statement of his own version of events • failed to interview relevant witnesses who had seen Ms McCauley rebuke the respondent in relation to his alleged comments, and • made an indefensible finding that there was no case against the respondent which was at odds with the respondent’s own partial admission that he had called Ms McCauley a cougar, as alleged. The complainant was awarded $35,490 in compensation of which the respondent was liable for $4,500.

Evidence proposed by the complainant, respondent or other interested parties Complainants and respondents often suggest what evidence you should gather, which they think will prove their respective versions of events. Their interviews will also indicate some lines of enquiry, such as people whom they say were present at relevant times. Stakeholders in the organisation with a preferred outcome for your investigation may also weigh in with their views on who is relevant to interview, or attempt to withhold relevant information from you. It is good practice to ask the complainant and the respondent, in respect of every allegation, whether there are any witnesses, documents or other evidence they believe are relevant to their account of events. Remember that a workplace investigation is an inquisitorial process: you decide what evidence you need to determine the truth. The investigator is not limited to considering only the evidence referred to by the parties or that offered by your instructor or stakeholders in the organisation. Such evidence might be self-serving and support each party’s own account or the organisation’s preferred outcome. Your role as independent investigator extends to enquiring further and collecting whatever evidence you need to establish what really occurred — without fear or favour. Be brave in seeking what you need to make judgments. Don’t be put off by discouragements from within the business or reticence to provide information. Do ask for and obtain all relevant documents that might be helpful. Do interview all available and relevant witnesses. You have been empowered by the organisation to determine this matter, which could have ramifications for

employees’ future employment, the organisation’s legal and reputational risk, as well as workplace culture. Inconvenience to your colleagues is a small price for the organisation to pay, in order to do the right thing. Identifying relevant witnesses When you interview the complainant and the respondent, for each allegation, ask if there were any witnesses present: “Was anyone else present when that happened?”, “Did that person participate at all?” Explain to the parties that you will make the assessment of whether the proposed witness might have relevant evidence or not. Once you have interviewed the complainant and the respondent, you may decide that you no longer need to meet with all of the witnesses whom you initially identified. It is useful at this time to review your investigation plan and make any adjustments to the evidence that you first thought you would need. Sometimes you will need to decide whether to interview all relevant eyewitnesses, for example where the allegation concerns the behaviour of the respondent during a meeting. In essence, the question is whether it is necessary to interview the particular witness (or witnesses) in order to make a finding on the allegation in question. This depends on the particular investigation. For example, in Byrne v Australian Airlines Limited [1994] FCA 888, it was held that the failure to interview a fourth member of a team of porters in a case of alleged theft amounted to a denial of procedural fairness, whereas in Thomas v Westpac Banking Corporation [1995] IRCA 311, it was held that it was not necessary to interview each of the three men sitting opposite the complainant and respondent, in a case of alleged sexual harassment. The decision about whom to interview can be a delicate balance between ensuring that the appropriate, relevant witnesses are interviewed, managing the expectation of the parties that their nominated witnesses will be interviewed, and conducting a timely investigation. To manage the complainant’s and respondent’s expectations early, explain that while you have noted the witnesses they view as relevant, you will decide whom to interview. You can make a selection from those nominated by both parties, and, if appropriate, also choose witnesses that neither selected, as they may provide an account which is more objective. Inform the parties that where facts are not in dispute, where witnesses do not appear to have any evidence that is relevant to the facts to be considered or where you have already collected enough evidence on a factual point, you will not need to interview all the witnesses nominated. If you decide not to interview a person identified by a party, it is advisable to inform that party why you have made that decision. To protect yourself from criticism, ensure that you explain in your investigation report why and how you have chosen the witnesses in your investigation report. Consider for a moment the following allegation: in a team meeting Liz made humiliating comments to Jack about his Six Sigma presentation. Liz allegedly laughed as Jack left the room and muttered “loser” under her breath. Present in the meeting were 14 staff members. Liz has denied making the alleged comments. Your obligation as an investigator is to be diligent in your collection of evidence, but this does not mean that you have to interview all 14 witnesses. You might start by interviewing Liz and Jack and asking them to draw a diagram of the seating arrangements. As Liz was alleged to have muttered “loser”, you might interview two or three witnesses who were in close physical proximity to Liz and therefore potentially overheard the alleged comment. Case example In Roger Keith Garrett v Shamrock Holdings (WA) Pty Ltd t/as Killarnee Formwork [2009] AIRC 832, the Commission reviewed an investigation concerning sexist comments made during a work car trip. The respondent denied the allegations when the investigator asked for his response. The respondent also stated that there were three other witnesses who were relevant to interview. The investigator did not meet with any of these witnesses. He relied on his belief that the respondent was not credible. This was later held to be a flawed investigation because relevant witnesses were not interviewed and the respondent was not given a reasonable opportunity to participate further in the investigation.

¶11.4 Key principle: Reliable evidence

The quality of the evidence you collect is important. In legal cases, it is generally considered dangerous for the judge or jury to consider evidence of a poor quality or otherwise of limited reliability. This is because even considering that evidence can be unfairly prejudicial to one party or the other. Although a workplace investigation is not required to meet the legal rules of evidence, the evidence you collect should be sufficiently certain, precise, direct, soundly-based and unbiased for it to be worth relying on as you make findings of fact. Evidence will be reliable if it is: • from direct eye witnesses who are credible • from credible secondary sources such as documents, CCTV, text message or emails • corroborated by other eye witnesses who are also credible • corroborated by credible secondary sources such documentary, CCTV, text messages or emails, or • corroborated by reliable, contemporaneous hearsay evidence. On the other hand, evidence may be considered unreliable if it is biased, speculative, based on assumptions or rumours, affected by the passage of time, based on a witness’ recollection which is hazy and imprecise, illegally obtained, flimsy, untruthful, hearsay or related only to the respondent’s past similar behaviours (called “similar fact evidence”). In this chapter we set out briefly what types of evidence are usually unreliable, so that you can recognise them as they crop up in your investigation. In Chapter 17, we consider how to analyse these types of evidence, and how much weight to give them. Biased evidence Where you have reason to believe that a witness is a close friend or colleague of a party, or may be consciously or unconsciously biased in their recollection or communication of the events in question, treat their evidence with caution. This does not mean that you should automatically discount evidence provided by friends or close colleagues of the parties, or find that the witness is untruthful or untrustworthy. Instead, it means that you must diligently test the reliability of their evidence. You may do so in a number of ways. • Test their account against other sources of evidence. • Note whether the witness appeared to give a clear and detailed account from their own recollection or not. • Note if there appears to be a surprising similarity in the evidence provided by both participants which is inconsistent with other more impartial accounts. This can be an indication that collusion has occurred about what to say in the interview. • Ask the witness about their relationship with the parties and how a closer relationship with one of the parties may have coloured their account. • Ask the witness whether the evidence they are providing is evidence of their own observation, or a statement of what they think the party would probably have done, based on their relationship with that person. Mere opinions about what the party generally would have done is not reliable evidence. • Enquire about how many times the witness has spoken with the party about the events in question, and give less weight to evidence that has potentially been tainted by lengthy discussions with the party as to what occurred. This is because their evidence is no longer a fresh recollection, but a reconstructed set of events based on their memory and subsequent discussions. If you decide to give less or little weight to the evidence collected from a close associate of a party, be sure to state the reasons for that in your investigation report. If you decide to discount a participant’s evidence, base your decision on sound reasons, rather than a mere suspicion that because the participants are friends, their evidence is inherently unreliable.

Speculation by a witness Consider this example. Frances tells you in her interview that she witnessed Sharon swearing in an office at work. After some further questioning, she explains that she did not actually see anything. She thought she overheard swearing from the direction of Sharon’s office. She assumed it must be Sharon swearing at David, because the next day David was sick. Now in this interview, Frances says that as she is being asked about Sharon, she guesses that Sharon must have done something wrong and caused David to go on sick leave. Frances’ evidence in interview is of poor quality. It is vague and involves assumptions and speculation, which do not appear to be justified. Witnesses who are very keen to be cooperative and assist the investigator do sometimes provide this sort of evidence, imagining they are being more helpful. In addition, it is natural for people to try to piece together an understanding of what has happened based on few facts, and to interpret things they witness in ways that confirm their pre-existing beliefs. Participants often will offer poor quality evidence innocently, with no bad intention to influence you in any particular way — your job is to test that evidence, and only give it the weight it deserves. If a party offers you evidence which is speculative or based on assumptions, explain to the witness that they do not need to speculate about or make assumptions about what might have happened. Ask them to tell you instead exactly what they saw or heard. In Frances’ case, does she have relevant and possibly reliable evidence about what she overheard, what words were used, whether it was a male or female voice, how far away she was when she heard it, what tone of voice she heard, who else was there and what time this occurred. Focus your questions on these factual enquiries to ground the evidence and move away from speculation and assumptions. Poor recollections If a participant has a poor memory and cannot remember much, or their recollection is vague and imprecise, much of their evidence may be assessed as unreliable. Sometimes, however, witnesses have a poor memory for dates, or names, but can still provide useful and reliable details about what they observed. Test whether the witness has a poor memory or is, in fact, evading the questions. Asking questions about matters they should confidently know about can help you decide how much of their poor recollection relates to poor memory. For example, asking the witness for the dates of their last holiday or how many times they brought homemade lunch to work last week may assist you to determine their memory skills. Poor recollection by a witness does not necessarily mean that they are being disingenuous or avoidant with their evidence. As detailed in Chapter 7, research has shown that stress and trauma can interrupt the memory-forming process, and make it more likely that the witness will inadvertently provide inaccurate information when asked to recount the traumatic event. Be aware of other signs of trauma in interviews — such as lack of focus, emotional reactivity and multiple versions of a story — and do not immediately dismiss a complainant’s credibility. Illegally obtained evidence Illegally obtained evidence is generally unreliable evidence and unethical to rely upon. Conversations can now be recorded with ease, using inconspicuous recording devices (almost any smartphone, let alone the “spy” equipment available online). It is not uncommon for investigation participants to offer to provide investigators with a covert recording they have made of a conversation in order to support their version of events. This evidence may have been illegally obtained in breach of the electronic surveillance or privacy legislation for the relevant jurisdiction (see Chapter 15). In Haslam v Fazche Pty Ltd T/A Integrity New Homes [2013] FWC 5593, the Fair Work Commission denied an employee’s request to bring audio recordings of two meetings she had had with her managers as evidence that she was dismissed rather than resigned, finding that the recordings were probably obtained improperly or illegally. The Fair Work Commission has taken a dim view of employees who covertly record meetings and then try to use them in their unfair dismissal cases, holding that it is “seriously wrong and inexcusable … and a valid reason for dismissal” (Thompson v John Holland Group Pty Ltd [2012] FWA 10363) and “deceptive

and purposely misleading” (Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513). If you are in receipt of evidence that was potentially obtained illegally, be aware that you could become complicit in a breach of the law if you accept, keep or use that evidence: • In some jurisdictions, a person must not record a private conversation to which they are not a party, without express or implied consent. • It may also be an offence to publish or communicate that recording, including playing the recording to you in their interview, or giving it to you to listen to. • The privacy of individuals’ health information is protected by health records legislation, and improper disclosure of it can be a breach. • It can be a breach of workers compensation laws to disclose information created for workers compensation proceedings and use that information for another purpose. • Taking personal documents or diary notes from a person without their knowledge or consent can amount to theft. As an investigator, if you accept and consider illegally or improperly obtained information, and then expressly exclude it from your analysis and the findings you make, you may still be found to have unfairly taken it into account, even subconsciously. It may then provide grounds for the parties to challenge your findings. To protect yourself from the risk that illegally obtained evidence is provided to you, it is best practice to inform all participants at the start of the investigation, and again at the start of all interviews, that they must only give you information, documents or other evidence in the investigation which they have the legal right to have and to disclose, and that the investigator has a legal right to rely upon. If you are offered evidence that has been illegally obtained — including because it breaches privacy, surveillance or criminal laws — it is appropriate to refuse to accept it. If the witness gives you a formal (and reliable) undertaking that the evidence was properly obtained, you can make an assessment of whether acceptance would be legal and proper. Otherwise, including the evidence in your investigation will contaminate the process and potentially render the findings indefensible, so it should be rejected. Flimsy evidence Ensure that the evidence you collect and rely upon to make a finding does in fact go to test the allegations you are investigating. This is, the evidence must be clear and cogent, not weak or inconclusive. Case example In Peter Mulhall v Direct Freight (Qld) Pty Ltd T/A Direct Freight Express [2016] FWC 58, Commissioner Simpson found that there was no clear and cogent evidence to prove Mr Mulhall stole a missing laptop, because the CCTV footage that the employer relied upon to prove the allegation was inconclusive and described as “flimsy”. The Commissioner also found that Mr Mulhall was denied procedural fairness because the CCTV footage was never shown to him before the employer sacked him. The dismissal was therefore held to be unjust and unreasonable and Mr Mulhall was awarded damages of $25,468.

Similar fact evidence It is perhaps human nature to characterise someone by their past behaviour, and to assume that, once someone has done something wrong, they are bound to reoffend. Witnesses often detail the respondent’s (or the complainant’s) past errors and misdemeanours as evidence for their guilt in the present case. You may be asked to infer that, because of past similar behaviour, the new alleged behaviour is proven. Such evidence, however, may not be relevant to whether the alleged behaviour occurred on this occasion. It can also be inherently unreliable as the evidence might be historical, tainted by gossip and rumour, or untrue. A useful approach is to ask the witness how the evidence of past similar behaviour is relevant to the questions being asked, in case there is a relevant and reliable connection to the allegations. If the

evidence of past similar behaviour has no relevance to the allegations you are investigating, inform the witness that you are not investigating those prior incidents and move on with your questioning. On the other hand, if the evidence of past similar behaviour does appear to have relevance to the allegations you are investigating, (for example, because it is similar in nature to the allegations being examined), you can ask about those matters. Take care, however, as this material is highly prejudicial to the party. Once you are on notice of the similar fact evidence, it must be put to that party for their response as contradictory evidence. Sometimes similar fact evidence that is offered by participants in an investigation is treated as a new allegation that requires investigation. If the organisation decides to broaden the scope of the investigation to include it, the new allegation must be put to the respondent. (See Chapter 17 for when and how similar fact evidence can be given weight in making findings of fact.) Hearsay evidence Another type of evidence which can be less reliable and determinative is hearsay evidence. Hearsay evidence is, for example, Jeff’s description of what Jean saw, which he bases on Jean’s recounting to him. Jeff himself did not directly see or hear anything first hand but was later told about it by Jean. What Jeff tells you Jean said to him after she saw the event is not direct evidence of what Jean actually saw — only of what Jean said to Jeff. In legal cases, hearsay evidence is often ruled to be not admissible. Hearsay evidence is considered unreliable because there are dangers of misrepresentation and inaccuracy in the repetition by an indirect witness. There is also a risk that hearsay evidence will be given too much weight by the decision-maker, when the person providing the hearsay evidence did not witness anything directly. Accordingly, the courts prefer to hear from the direct witness on oath, rather than hear from the hearsay witness about what the direct witness said to them (when not on oath). Ideally, in our example above, it should be Jean who gives this evidence. This is because only Jean can be questioned about it in order to test her powers of observation. An interview with Jean would provide better quality evidence because she is a direct witness. Hearsay evidence is better than no evidence, but if possible, seek first hand witness accounts which will have more weight. If, however, Jean is not available in the investigation, Jeff’s evidence of what Jean told him might be the only evidence available apart from the complainant and respondent’s differing versions. In such a case, Jeff’s evidence can be given some weight and taken into account by the investigator. Further, in some circumstances, hearsay evidence can open up a new line of inquiry for the investigator. (See Chapter 17 for discussion about the weight to be given to hearsay, direct and corroborative evidence when analysing evidence and making findings of fact.) Key points • Evidence is the material you collect in the investigation for the purpose of reaching a decision on the issues in dispute. • Evidence can take many forms, and may be verbal, documentary, digital or electronic. • In a workplace investigation, evidence is offered by the parties and also proactively sought by the investigator from other sources, in order to test the parties’ versions of events. • Always ask the complainant and respondent to nominate relevant witnesses, documents or other sources of evidence for each allegation. As investigator, you can then decide what is likely to be sufficiently relevant to the facts in dispute, and then collect that evidence. You can also seek evidence that you, as investigator, determine to be relevant even if neither party has mentioned it. • Independently and fearlessly identify and obtain all relevant evidence, even where the parties or key stakeholders themselves have not identified it. • You should focus on collecting evidence that is relevant, reliable and appropriate for you to rely on. • Hearsay and relevant similar fact evidence are capable of being considered, but the nature of such evidence means that it is likely to be given less weight than direct evidence. • Evidence can be unreliable or less determinative of the facts in issue if it is biased, speculative or based on assumptions, similar fact evidence, hearsay, based on poor or incomplete recollections, illegally obtained, or flimsy.

Chapter 12: Conducting Interviews Where to conduct interviews

¶12.1

Recording evidence collected in interview

¶12.2

Managing documents provided to the investigator ¶12.3 Providing evidence to a party for comment

¶12.4

Duration of interview

¶12.5

Reasonable accommodation of impairments

¶12.6

Concluding the interview

¶12.7

After the interview

¶12.8

Editorial information Most investigations involve interviews with the complainant, respondent and some witnesses. Interviewing the participants is one of the most interesting parts of investigations, requiring special skills and careful preparation. Interviewing could also be described as high stakes, because you can’t “practise” interviewing the actual participants, and you get only one chance to see the interviewee’s first response to a crucial question. In interviews you have to think on your feet, adapting your approach and questions to the information you are hearing and the demeanour of the interviewee. The best chance you will have to gather and test the evidence — in particular the parties’ credibility — is in the first interview. In this chapter we describe how to set up your interview for success. Chapter 13 focuses on the skills you’ll use to collect relevant and revealing evidence. In Chapter 14, we examine how to address challenges which commonly arise in interviews. If you are about to interview a hostile or potentially difficult witness, read Chapter 20 for tips on how to manage conflict and remain effective under pressure. Planning the interview Interviews are usually a prime source of information in your investigation, so they must be carefully planned. Taking the time to think about the interview beforehand gives you an opportunity to map out what you are looking for from each interviewee, and how you will obtain it. A carefully written plan will have a purpose for each interview. Generally, the purpose will be to obtain from the interviewee a full and frank account of their involvement in what is being investigated. Use Microsoft Word or Excel to create an interview plan template with common issues for the common types of allegation that you can save for future use and refine over time. The more specific goals of each interview will depend on the status of the interviewee (complainant, respondent or witness), what they may have witnessed and the nature of the matter being investigated. For example, during a complainant interview the goal would usually be to establish the specifics of their allegation including what other relevant evidence they have to support their complaint, gather details which can be used to understand and test the allegations against other evidence, and start to consider the credibility of their evidence. For a respondent, the goal would usually be to understand their response to the allegation, test their evidence against other evidence you have collected so far and start to consider the credibility of their evidence. You might also use the interview to identify what other evidence you need to collect and how you will source it. During the planning phase, consider what is already known and undisputed about the interviewee’s involvement, what is still yet to be discovered and what information or evidence needs to be shown to

the interviewee to assist them in providing relevant information. Sometimes, the information you need to elicit is broader than the specific allegations of fact. If the allegation includes bullying, for example, your interviews will explore the factors relevant to the reasonableness or unreasonableness of the behaviour in the circumstances. You might also explore the context of the conduct and specific factual issues such as the respondent’s tone and volume of voice. A good interview plan also considers the person to be interviewed. This includes thinking about whether they are a vulnerable interviewee (child, elderly or disabled) and what reasonable accommodations you need to make during the interview (see Chapter 7). These are only a small selection of the factors you should consider in advance of the interview, which will always be specific to the allegations. By identifying these factors early in your interview planning, you will then be in a position to develop interview questions for each participant (see Chapter 12). Drafting an interview plan allows you to consider the appropriate location to hold the interview, how to record it and how much time will be needed.

¶12.1 Where to conduct interviews If practicable, interview all of the participants in person. The benefit of meeting with an individual face-toface is that you will be able to get to know the participant better, build rapport, observe their mannerisms and body language, and engage with them fully. It can be very difficult to judge a person’s credibility without observing them as they give their evidence. On this point, Chapter 14 specifically covers the detection of lying. If geography or other logistical reasons make it impractical or prohibitively costly for you to meet with everyone in person, or unreasonably delays the investigation, an interview using internet-based video conferencing (such as Skype, Microsoft Teams, Zoom or FaceTime) or telephone can still yield useful evidence, even if it is not the best media by which to build rapport or assess credibility.1 Try to avoid interviewing one of the parties in person and the other by telephone or video, as one may feel that this gave an unfair advantage to the other. Sometimes, there may be no alternative but to conduct an interview remotely, due to geography, witness availability or other factors (eg workplace lockdown which we first experienced in 2020). Interviews conducted in person Where you decide to hold the interviews is important. You will recall from Chapter 5 that confidentiality is a key aspect of interviewing. With respect to the location of your interviews, ensure that: • passers-by cannot see into the interview room from the outside • you do not agree to interview a participant in their own workspace or office — doing so might lead to a perception of alignment with that participant and participants can be potentially distracted • a break-out room is available for private discussions between the participant and their support person, also enabling you or the participant to take a break in private • participants cannot be seen entering and leaving the room by staff with whom they work closely — ideally the room should be away from their regular working area • the interview room is soundproof, so others cannot inadvertently hear what is discussed — particularly as the interviewee might become emotional and raise their voice • a sign on the door says that the room is not to be disturbed • the interview room is free from distractions, and • there is sufficient space for you and the participant to lay out papers they bring with them, to take

notes and to sit without being uncomfortably close to one another. Interviews are often arranged back-to-back, with several interviews in one day. Make sure you build in some “buffer time” between interviews. This will allow you to take a break, and also to review and adjust your preparatory notes and questions for the next interview. It also builds in some flexibility in case an interview is delayed or runs longer than expected. Additionally, it avoids the situation where a witness sees the person before or after them arrive or leave the interview room. Conducting interviews remotely: Telephone or internet-based video conferencing The working restrictions in 2020 that were imposed as a result of COVID-19 have demonstrated that internet-based video conferencing can be very effective with a little more preparation. When you conduct an interview by telephone or internet-based video conferencing, for example by using Skype, Zoom or Microsoft Teams, ensure that the participant’s own venue is appropriate. Like in-person interviews, you need to ensure that the discussion is private and the participant is able to participate fully in the process. It is not appropriate for the interview to happen while the participant is sitting in an openplan office, for example, in the participant’s bedroom, or while someone is trying to supervise small children at the same time. Feel free to ask the participant about the space where they are: “Are you in a room where you can speak freely and privately, and not be interrupted?”. At the start of the interview, it is appropriate to ask the participant if they have anyone else in the room with them. If they do, ask that other person to make sure they are able to be seen, ask them to identify who they are and clarify in what capacity they are attending the interview (eg as a support person). Video conferencing enables the participant’s support person to call-in from a third location, if pre-arranged with the investigator. For internet-based video conferencing, work with the participant prior to the interview to ensure that they have access to the right type of technology, have downloaded or have accessed the video conferencing application and are comfortable using it. This might mean setting aside 10 minutes on a day before the interview or extra time at the start of the interview to make sure the participant is comfortable with the video conferencing technology. It is important also to let them know what will happen if the internet connection drops out; ask for their mobile number or an alternative way to reach them if technology fails or the connection is poor quality. It is also important to inform them, if you intend to do so, how the video conference will be recorded and remind them about making their own recording. You can disable their ability to record the interview using the online video conferencing application, if you wish, however this will not prevent the participant covertly using an audio recording device placed near the computer’s speakers. Consider emailing or calling the participant in advance of the interview, to discuss their comfort and confidence in using technology, and how the telephone or video conferencing arrangement will work. Unlike in-person interviews, developing rapport during an interview by telephone or video conferencing may take longer. Some participants are less comfortable talking via technology than they would be in person, so allow some extra time at the start of the interview for some informal chat or other rapportbuilding conversation. Some investigators use humble language and a warm smile to help the participant relax, such as saying “My dog occasionally pops into my home office for a visit, but he’s unlikely to bark. I hope that’s OK with you. Are there any interruptions that might happen at your end?”. (See Chapter 13, in which we discuss building rapport.) It is also important to remember that video conferencing is very focused, meaning that unlike in-person interviews where the participant can be distracted and is across the table from you, typically during video conferencing the participant is focused on your face and the camera is close. This means you need to be particularly aware of your facial expressions while maintaining your normal professional and calm presence. Some people have concerns about whether internet-based interviews are “secure” or able to be hacked. Skype can allow police and intelligence services access to calls, and any internet-based service is vulnerable to some degree to hacking. This risk is extremely low for the average workplace investigation.

In any case, these days most telephones operate on VOIP (Voice Over Internet Protocol) technology, so internet-based video is as safe as the average telephone conversation. Where possible, use a password on video conferencing apps to minimise the possibility of a stranger “bombing” the meeting. Footnotes 1

Russell v The Trustees of the Catholic Church for the Archdiocese of Sydney & Anor [2008] NSWCA 217.)

¶12.2 Recording evidence collected in interview Method of recording Before the interview, you will have made it clear to the participant how you will record the interview. There are three main ways that an investigator can record evidence in interviews: • audio recording • typed or written notes • statements, created during the interview, then reviewed, edited and signed by the witness. Audio recording Audio recording mirrors modern police interviews, where recording is the standard,2 in order to protect the interviewee and the interviewer. Despite its policing origins, increasingly this method of evidence recording is also considered by many to be best practice in workplace investigations. In misconduct investigations, the potential consequences for the respondent are often serious; sometimes a party makes a legal challenge to the outcome, and there are other risks for the organisation, so it is prudent to have an indisputable record of the interview. The most reliable method of recording everything that is said in an interview is to use an audio recording device, and then later prepare (or have prepared) a typed transcript of the interview if you need one. Audio recording offers the highest quality and completeness of all other methods of recording interviews, except perhaps video recording, which is not generally feasible for in-house investigations. 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. Note-taking takes cognitive effort, which is focused on the taking of notes rather than understanding and analysing what the person is saying. Research has shown that “The time urgency of selecting key points and recording them while comprehending new information at the same time places significant demands on the central executive and other components of working memory.”3 Other arguments for audio recording interviews include: • recording allows for better listening and concentration by the investigator, and better conversational flow • the general inaccuracy of note-taking, compared with audio recording4 • the recording captures tone, volume, pauses, sighs and stutters, as well as pitch and volume • recording generally does not inhibit conversations, as the interview participant tends to forget that the audio recorder is there • recording allows the investigator to watch the participant, almost constantly, while they are speaking — allowing you to observe their body language

• eye contact between the investigator and the interview participant can build additional trust and rapport, and • the existence of the recording can protect the interests of both parties and establish the full content of the interview in any later proceedings. Digital audio recording devices are cheaply available, and very easy to use. Some dictation apps for smartphones and tablets can also be used for this purpose. The audio of face-to-face, internet-based and telephone interviews can all be recorded in this way. At times, however, audio recording is not appropriate. For example, sometimes a participant or their union or legal representative will refuse to be recorded. They might feel pressured or discouraged from speaking freely by the formality of an audio recording. This objection should be explored, and you should explain that your record of the interview, by whatever means taken, will be an accurate one. If you accept their preference not to be audio recorded, take handwritten or typed notes during the interview. If possible, bring an assistant to take notes so that you can concentrate on your questions and the participant’s responses during the interview, and observe and listen to the participant rather than looking down at your notepad or keyboard. For public sector organisations in some Australian states, legislation and ombudsmen’s guidelines recommend or require that interviews in investigations of a whistleblower’s allegations are recorded using an audio recording device (see Chapter 1). Your organisation’s policy should reflect this. Audio recorded interviews — Tips Don’t let technology trip you up. Before the interview, ensure you are familiar with your recording equipment. In a crucial interview, consider having a back-up recording device with you in case the first one fails, or even make two recordings from the start. It is quite unsettling, and damaging to the integrity of the evidence and to your credibility, to realise halfway through an interview that the batteries have run out, the device has stopped or you have accidentally recorded over a section of an audio file which has not yet been saved to your computer. Practise recording yourself before the interview to test buttons, batteries, functions, sound levels and folders for data files. Make sure you check occasionally during the interview that the device is still working. In a crucial and high stakes interview, you can manage this risk by using two devices concurrently during the interview. If technology does let you down, you may need to conduct the interview again, depending on its importance. Even when you are recording the interview, you may like to take some handwritten notes of key statements, words, expressions, or topics discussed, new questions that come to mind, and comments by the participant that you would like to explore further. You can refer to these easily during the interview, and in other interviews that occur before the written transcripts of the audio recordings have been completed. Here are some useful tips for recording interviews: • Ensure that you inform the participant that you are recording the interview, and that the recording and/or a transcript of it will be provided to the participant after the interview. • Telephone or internet-based video interviews can also be audio recorded, by sitting the audio recording device near the speakers of the telephone or computer. • Check that the participant consents to being audio recorded before the interview. • Where you have started the investigation using a certain method of recording interviews, make sure that it remains consistent for all interviews, unless there are compelling reasons why you cannot do this. If you start by audio recording the interviews, then one of the participants objects, you can still audio record the other participants (even though it is preferable to record all interviews using the same means).

• If an interview is being recorded, inform the participant that, “I will take notes of anything you say when the recorder is turned off and I will provide you with a copy of my notes together with the transcript”. • It is surprising how often the witness provides a key piece of evidence just after the audio recorder is turned off, even while walking out the door of the interview room. Sometimes a whole allegation turns on that piece of evidence, so if this occurs, make a handwritten note as soon as possible. • If you use an external provider to prepare the typed transcript of the audio recording, or a colleague, make sure the transcriber understands their obligation to maintain confidentiality. If the interview is not being audio recorded, inform the participant that you are not recording the interview, and that you do not consent to the interview being recorded. Ask the participant to switch off their phone at the beginning of the interview. Typed notes of interview If your investigation is simple and is being conducted quickly and informally, or the participant refuses to be audio recorded, taking typed or handwritten notes of the participant’s answers to your questions is adequate. During interviews, you or a typist can take typed notes of your questions and the participant’s answers in real time on a laptop. A fast typist will be able to obtain a good record of what was said. It can be useful to bring a second person with you to type while you ask questions and focus on the responses of the witness being interviewed, given the cognitive load of typing notes and the inability of the typist to look at the participant. Be aware, however, that a second person present in the room, who is hearing everything, can impact on the dynamic of the interview, especially if they are another member of staff. You should consider this when making a decision about recording and note-taking options. When interview notes are typed, it is not necessary to have the participant read the notes at the end of the interview and sign the notes to confirm their accuracy, although you should provide them with a copy after the interview, together with an opportunity to comment on the notes of interview. It is best practice to provide the interviewee with a copy of the notes of their interview that you will rely on. As your notes are the record of the interview, any additional comment, clarifications or proposed amendments that the interviewee proposes should be treated as additional input. The interviewee should not be invited to alter the original record, as they may edit the notes to cast themselves in a more favourable light. If you send the notes to the participant and ask for their comments on the notes by a particular date and they fail to respond, it is fair to assume that they do not wish to provide any comment on the notes. To ensure the participant receives the notes and you have a record of the fact that they have been provided with the notes, seek a “read receipt” on the email or send the notes by registered post. Handwritten notes of interview Unless the interviewer takes shorthand, handwritten notes will usually capture the themes of the evidence and some key expressions, but not everything that is said. It can be quite difficult to record the verbal evidence by handwriting while the person is speaking. Many people speak quickly. You may not be able to record adequately what is being said, actively listen, and follow up on various lines of enquiry while also taking handwritten notes. You may miss key content or nuances of language, and you will not be able to look at the participant at the same time as writing. Of the three methods of recording the content of interviews, taking handwritten notes is (for most investigators) the least accurate and complete method. If you cannot audio record or type notes of the interview, and handwritten notes is the only way to record its content, try to take a colleague to take the notes. If your note-taking falls behind, don’t be afraid to say to the participant “Please can you pause for a minute, while I take notes of what you just said?”. As the investigator, you will need to make a decision about the best approach for recording the evidence in each investigation. This will involve weighing up the desired completeness and quality of the record,

against considerations of time, formality, convenience and the consent of the participants. Statements Some organisations prefer to have the investigator type a statement while the witness is being interviewed, allow the witness to review and edit the statement, and then print and sign the statement at the end of the interview. Such documents are not a full account of what was said. A witness statement is usually a constructed, chronological set of details that the investigator deems relevant, and that the witness is prepared to approve and put “on the record”. This approach gives significantly more control to the participants, who can carefully formulate their answers. Naturally, when the witness is invited to edit the statement, they usually delete or edit any content that they think will not support their version of events. If the witness made any admissions (direct or indirect) during the interview, they can choose to delete them. The investigator has effectively given the witness the right to control what information the investigator can rely on when making a decision. In addition, in witness statements the questions that were asked by the investigator are usually not captured, unless the investigator insists on including statements like: “The investigator has asked me whether I attended work at the Marrickville office on 3 rd December 2019. In answer to that I say …”. Even where the investigator’s questions are captured like this, it is not clear from the witness statement what lines of enquiry the investigator pursued, how the questions were actually asked by the investigator, and what questions the witness refused to answer (if they choose to delete all reference to that issue from the statement). Many workplace investigators are of the view that this sort of evidence collection is not best practice. How can the investigator judge the “credibility” of the witnesses when their versions of events are allowed to be carefully crafted, and the finer points of their evidence — including the pauses, the “ums” and “ahs”, the tone of voice and the emotion — are not captured? By contrast, witness statements prepared in interview are often preferred by advocates for the parties, who usually seek the opportunity to edit their client’s statement in the interview, and in doing so, prepare a constructed set of facts to be presented as part of their client’s case. Statements are an option where the allegations are not complex in nature, most of the evidence is unlikely to be disputed, or the credibility of the witnesses will be less important in your judgment of the allegations. Pros and Cons of each method of recording Audio recording — Pros: • A full, indisputable record is obtained. • The investigator can concentrate fully on conducting the interview and listen carefully to the responses. • The interview can flow without pause for the note-taker to catch up. • The interview record will record everything, even things that at the time are not known to be relevant (and hence may not be recorded by a note-taker) but become relevant later. • It protects the investigator from allegations of improper behaviour in the interview as all the investigator’s questions are also recorded — this can be useful to demonstrate that the process explanation and questions were not leading, were impartial, professional and appropriate in the circumstances. • Admissions or partial admissions are captured and cannot later be denied. • Audio will record pitch, volume, tone, pauses, stutters and other factors that may be important in assessing credibility. • Recording allows the investigator to watch the participant, almost constantly, while they are speaking

— allowing you to observe their body language and build trust and rapport. • Most parties, even if initially conscious of the audio being turned on, quickly forget about it and are not intimidated by the recording. • The participant is comforted to know they will be given the full transcript and an opportunity to read over it. Generally, audio recordings are the least likely to be disputed by nervous parties as they capture everything that is said in the room. • The witness may record the interview covertly and, even when a witness does not reveal they have done this, if you don’t audio record and there is a dispute over your typed or handwritten notes, you may find you are arguing about what was said in interview with someone who has a far better record than you. • Inconsistencies in the responses and evasive language can be examined carefully to assess the credibility of the witnesses. • The seriousness of the investigation and the care taken to faithfully record all their evidence is apparent to all participants. Audio recording — Cons: • Preparing a transcript of the audio recording using a transcribing service is an added cost to the investigation. • Transcripts are long documents and increase the volume of material which the investigator must work through. • In rare cases, equipment or battery failure can let you down leading to the need to re-interview (this can be avoided by running two devices during the interview). • Some participants find audio recording intimidating and distracting. • Any mistakes the investigator makes will be recorded on the audio recording. Note-taking (typed or handwritten) — Pros: • The evidence collected will be shorter. • The process is less intimidating for some participants. • The notes can be sent to the interviewee with an invitation to comment on or clarify them. • There is no need to arrange the technology in advance, and no chance of technological failure. Note-taking (typed or handwritten) — Cons: • No matter how fast a note-taker or typist is, they will almost never be able to keep up with speech, so some words and phrases will be missed. • The participant’s words will be filtered and interpreted by the investigator, who will selectively capture what they deem most important. • There is more chance that a participant will successfully challenge the accuracy or completeness of your account. • A failure to record some parts of the evidence may demonstrate to a witness that a selective version was recorded, and open you up to a claim of bias or incompetence. • The witness may attempt to re-write the interview notes, remove sections they do not agree with, or

create a dispute about the agreed record of interview that can be unnecessarily distracting and timeconsuming. • The investigator is subject to an additional cognitive load by handwriting or typing while the witness is speaking — this can damage the investigator’s ability to comprehend, analyse and assimilate the participant’s evidence during the interview, and to respond in the moment to new evidence, inconsistencies or new lines of enquiry. • Taking handwritten notes or typed notes is tiring, particularly throughout a long interview. Statements — Pros: • Statements are succinct. • The witness is usually required to sign their statement in the interview to confirm its accuracy, which minimises the likelihood of a later argument about the accuracy of the record of interview. Statements — Cons: • Statements are a reconstruction of events which is controlled by the participant and their advocate. • Statements are not a complete record of what was said in the interview. • The richness and detail of the participant’s answers to the investigator’s questions are lost. • The questions asked by the investigator are not captured — meaning it is not clear from the witness statement what lines of enquiry the investigator pursued. • Statements will not provide a rich source of information to inform the assessment of the credibility of witnesses. • Investigators who assist participants to prepare a statement may be viewed to be advocating for the witness. Record the whole interview Whatever method you use to record the interview, when the witness and their support person (if any) arrive at the interview, commence the audio recording or note-taking immediately so that the record is complete. Your explanation of the process at the start of the interview may be tested if a party later argues that they did not have a sufficient understanding of the process, or what you would do with the information they gave you, or their right to have a support person, for example. Recording the interview from the very start means that you will be able to prove the completeness of your explanation about the interview process. If you have previously informed the participant that you will record the interview with an audio recording device or by taking notes, as suggested in pre-interview communications in Chapter 9, any issues about the recording method will have been dealt with beforehand. Do not agree to have “off the record” conversations or to let the witness tell you something “off the record”. Once you have been told something, whether you are recording or not, it is on the record. In the proper collection of relevant evidence, and to ensure that everything on your mind as the investigator is handled procedurally fairly (noted to be relevant and relied upon; put to the parties as contradictory evidence, etc), there is no such thing as “off the record”. As the investigator, you don’t want later arguments from participants that you included something which they considered to be “off the record” or that you did not take something into account which you thought was “off the record”. For that reason, it is safest to confirm to the participants that everything they tell you during the investigation process will be treated as part of the investigation material. If a participant asks you “Can you just switch off the tape for a moment?” or “Could you just stop typing for a sec?”, or says “Just between you and me …”, immediately remind them of the agreed process rules.

Suggest there is no value in them giving you information you can’t consider. On the other hand, if they need to tell you something in your regular role (for example, as HR manager, compliance officer …) which does not relate to the allegations being considered, you can organise a separate meeting for them to do that. Audio recording by the participant Given the relative ease with which interviews can be recorded using mobile phones or other readily concealed recording devices, it is easy for participants in investigations to record the interview for their own purposes. It is preferable that there is only one agreed record of the interview to avoid disputes about what was said. As you will be providing a copy of the audio recording and/or the transcript to the participant, participants do not need to make their own recording. It is legitimate to ask that the participant does not record the interview themselves. Footnotes 2

Police in all Australian states audio record or video record more serious interviews, but they are not required to do so in all circumstances. The FBI and other federal agencies in USA have electronically recorded their custodial interviews since 2014: see “Dep’t of Justice, New Department Policy Concerning Electronic Recording of Statements”, 10 March 2015, 128 Harvard Law Review 1552.

3

Annie Piolat, Thierry Olive and Ronald T. Kellogg, “Cognitive effort during note taking”, Applied Cognitive Psychology, Volume 19, Issue 3, April 2005, Pages 291–312.

4

Michael E. Lamb, Yael Orbach, Kathleen J. Sternberg, Irit Hershkowitz and Dvora Horowitz, “Accuracy of Investigators’ Verbatim Notes of Their Forensic Interviews with Alleged Child Abuse Victims”, Law and Human Behavior, December 2000, Volume 24, Issue 6, pp 699–708.

¶12.3 Managing documents provided to the investigator It is helpful to plan ahead of the interview how you will label and identify documents that you might receive from the witness in the interview. A consistent protocol for managing documents will assist you to have a clear record of the sources of the evidence provided and how you obtained it. If, later in the investigation, you need to put evidence to another party for their response, you will be able to identify how you came to have that evidence. For example, you may take a copy and mark it with a removable sticker to identify it is from the complainant (Abe Mathies) and what allegation number it relates to, for example, “AM — 7”. Alternatively, you may wish to have a running written record where you note in real time the documents you are given and what allegation they relate to, such as the following example. Documents provided by complainant

Relates to allegation number How obtained

Email from AM to RS dated 2 September 2017

4

In interview with RS on 29 December 2017

Flexible Work Guide

7

Via email from RS on 2 January 2018

The witness or party to the allegations should be asked, for each document or email that they provide, how it is relevant to the allegations being investigated.

¶12.4 Providing evidence to a party for comment A participant’s first reaction to evidence is often very useful evidence in itself. For example, when seeing a copy of phone records or a statement of financial transactions for the first time, a participant might show shock, confusion, anger, fear or relief. This gives you an insight into their state or mind and the possible credibility of their other evidence, and it might also reveal a line of enquiry to pursue further. It is appropriate to show witnesses documentary evidence such as short documents, pictures, objects or video footage in an interview and to ask them questions or to comment on it. If the evidence is complex or lengthy, make sure that you give the participant enough time to review and understand it, before you start asking questions. If the witness needs time to read a document, give them that time. Always make sure that you protect the documentary evidence you are providing to a witness for comment. For example, if you obtained original invoices as evidence, only hand over a copy of the invoice to the witness; have the original on hand to show the witness if it is requested for verification reasons. This protects the original documentary evidence, in case the witness becomes disruptive and tries to destroy it. Provision of documents can be covered in the participant’s first interview, or in a second interview during the contradictory evidence phase of an investigation. Chapter 16 explores this further. If the witness requests a copy of such documents, consideration should be given to whether it is appropriate for the participant to have a copy of that document in their possession, and the use they may make of it after the investigation is over. If, for example, the document is a private diary record, contains other personal or health-related information, or is commercial-in-confidence, there may be legitimate reasons for not allowing the participant to retain a copy. If you do provide a witness with evidence by email or mail to review before providing their comment, let them know that: • the document is only provided for the purpose of allowing them to respond to it as part of the investigation, and must only be used for that purpose • the document is confidential, and • the documents must not be distributed, disseminated to or shared with anyone else within or outside the workplace.

¶12.5 Duration of interview It is always difficult to estimate how long an interview will take and how long is reasonable for the participant to be able to provide their version of events. In their natural speaking style, some people give yes/no answers and avoid elaboration or explanation, while others are verbose in their descriptions of events, context and history. Where the participant can give relevant evidence about only one or two simple allegations, after your introductory and explanatory remarks, the interview may be very short. In our experience, interviews with individual participants have been as short as 15 minutes while others have run for many hours in total. Some witnesses will prefer to complete the interview as quickly as possible, and others will want to break it up over days. Given that it can be considered to be procedurally unfair to delay unreasonably the conclusion of a workplace investigation, there is usually pressure on the investigator to conduct the interviews reasonably quickly. You must weigh against that consideration the impact of conducting a long interview with a tired participant who may later complain that they were required to continue unreasonably, or were so fatigued that they did not know what they were saying. It is best practice to ask the participant at the end of every hour, on the record, if they wish to take a break or if they are comfortable to continue the interview. This ensures that you do not push the participant too hard, and that you yourself take sufficient breaks. Interviewing can be tiring, particularly if the material is complex and you are taking notes concurrently.

If the witness appears to be tired, confused or flustered after a long interview, consider suspending the interview unless you are very close to the end of your questions. It is your responsibility to look after the well-being of the interviewee (and yourself!), so if the interview is emotional and has been going on for many hours, even with breaks, do actively manage the participant’s well-being and suggest restarting the next day.

¶12.6 Reasonable accommodation of impairments If you become aware, from any source, that a participant in an investigation has any medical condition or has been on sick leave, the onus is on you to enquire about the person’s capacity to participate. We covered in Chapter 7 the actions that you should take prior to the interview to accommodate participants’ special needs. The sorts of accommodations that might be required in an interview will vary significantly, depending on the nature of the person’s needs. At the time of the interview, you should make reasonable modifications to the interview set-up or process, such as: • using an interpreter • taking more regular breaks • holding two or three short interviews, rather than one long one • giving the person more opportunities to talk with their advocate or support person • asking very simple questions • avoiding asking questions with multiple elements • taking particular care to avoid leading questions, or questions that can be answered with “yes” or “no”, and • slowing the overall pace of the interview. As noted in Chapter 7, do not make assumptions about the accommodations that the participant might need. Although you may be motivated by good intentions, you are unlikely to correctly “guess” the accommodation, and your efforts may appear patronising, offensive or discriminatory to the participant. Talk with the participant before any accommodations are implemented, note the accommodations in your interview plan, and note in your report that you discussed (and ideally, agreed) the accommodations with the participant in advance.

¶12.7 Concluding the interview At the end of the interview, ensure the following occurs: 1. State that you have no further questions, and ask if the witness has anything else that they would like to add that is relevant to the things you have asked them about. You may find that the participant then relaxes and says some particularly interesting and pertinent things, so do not turn off the audio recording device or close your laptop until the minute you walk out the door of the interview room. 2. Explain that you will send to the participant the notes of the interview, statement or the audio recording or transcript, and that they may provide a comment on it or additional information. 3. Obtain their contact details and their preferred method of confidential communication, so that you can send them the record of interview and communicate with them confidentially. 4. Ask the participant if they have any questions for you. 5. Say that you may have further questions after speaking to other participants, and, if so, that you will make contact to ask those questions and possibly to arrange a further interview.

6. For the complainant and respondent, explain the next steps in the process in general terms, for example, you could state something like this: “Next I will collect the rest of the evidence that I need to establish the facts. I don’t know how long this will take as it will depend on the availability of witnesses and other evidence. After I have gathered all the evidence, I will provide to you any contradictory evidence for your comment. Contradictory evidence is evidence that I have collected which doesn’t appear to be consistent with what you have told me. This may take place in an interview or in writing and I will decide what is most appropriate. Once you have had a chance to comment on the contradictory evidence, I will then make findings and write my report.” 7. Explain that it is not always possible to estimate accurately when an investigation will conclude, so you cannot provide a firm finishing date. Do tell the complainant and the respondent that they may contact you to ask about progress of the matter if they wish (but not to ask about the evidence you are collecting or the findings to be made). 8. Lastly, thank the participant for their assistance and time. 9. Only when the participant has left the room, stop the tape and save the audio file or your notes of interview securely.

¶12.8 After the interview Providing records of interview to the participants for comment After the interview, always provide a copy of the record of interview to the interviewee, together with an opportunity to comment on or clarify the notes or transcript. If you invite the participant to “edit” or “approve” the notes, be aware that this will likely be understood to be an invitation to edit the notes or transcript to suit the participant’s preferred version of events (not to edit for general accuracy). Participants will feel more comfortable throughout the interview if they know that they will be given a copy of what was said, and an opportunity to comment on the record of the interview if they believe there is an error or they wish to clarify something. It will also protect you from any later complaints by a participant that they did not say something which you have attributed to them. There is more than one way that this can be done, depending on time constraints, email access and the participant’s comfort with reading and writing English. If you are taking typed or handwritten notes in the interview, you can end the interview without providing the interviewee with notes. Once you have had a chance to review your notes of interview and tidy up any typographical errors, you can give the notes in person or send the notes to the participant by email or mail. If you are taking a statement from the witness in the interview, at the end of the interview you can give the participant a break while you print the notes or statement and then give the participant a hard copy. If you record the interview using an audio recording device, provide the participant with the audio recording and/or a written transcript of the recording afterwards (unless your policy requires that you give them a copy of the audio recording at the end of the interview). If you plan to email the notes, statement or transcript, ask the participant to nominate an email address that is confidential. They may prefer to use a personal email address, rather than receive the interview record in their work inbox. Emails should be marked “Strictly Private and Confidential” in the subject line. If posting the notes, statement or transcript, the envelope should be marked: “Strictly Private & Confidential — To be opened by addressee only”. When you provide the notes, signed statement, transcript or recording to the participant, invite them to let you know if they have any comments on the notes, or if there is anything they would like to add. This will reassure the participants of the transparency of the process, and give them a sense of control over their own contribution to the process. If possible, give each participant at least three days to give you any comments. You might provide the participant with a shorter or longer period depending on length of the

transcript, the complexity of the material discussed, whether or not the participant is represented by a lawyer or union, and any time constraints in your investigation. Participants’ comments on the interview record Sometimes a participant wishes to amend your notes of the interview because they do not agree that it reflects what was said. Make it clear that the notes of interview or statement accord with your recollection of what was said, and that they cannot “rewrite” what they said in the interview, but that you will consider their suggestions or clarifications. If the participant attempts to make major changes to your record to remove an admission of alleged behaviour, falsely claim that particular comments were made or not made, or cast the interviewee in a better light, you do not need to accept those amendments. When this occurs, you can reject the participant’s additional comments and note your reasons in the report. On the other hand, if the amendments proposed by a participant do not change the meaning or integrity of what was said in the interview (or the proposed amendments improve the record), then you can accept the participant’s amendment. If you quote from the interview in your report and the quotes include amendments proposed by the participants, explain this in the report and state that the amendments are not inconsistent with the investigator’s memory of what was said in interview. When providing the transcript or notes of interview as a document, always lock the document against editing, allowing only tracked changes. Sometimes mistakes occur when preparing a transcript. This may be due to a poor recording, an unfamiliar accent, the transcriber’s misunderstanding of the spoken words or simple human error. If the participant disputes something fundamental in the transcript, the audio file can be provided to the participant to listen to, if it hasn’t already been provided. You can also re-listen to the recording and make any necessary amendments. Be sure to retain all audio files for this purpose, with the rest of the evidence collected. Record-keeping As discussed in Chapter 8, during the planning phase you will decide how you will copy, retain, file and manage documents, electronic materials, photos and other evidence provided by participants in the investigation. Usually you will assemble interview records and all other evidence in a folder or digital folder, organising as you go. If you are making audio recordings of interviews, retain a copy of both the audio file and the transcript made of that recording. Retain all notes of interview whether typed or handwritten. It is recommended that all information should be kept for at least seven years (the statute of limitations for many civil claims). Note that additional provisions apply to record-keeping for whistleblower complaints and protected disclosures. For such complaints, refer to the organisation’s policies and Chapter 1 of this book. Key points • Set up your interviews for success. Hold interviews in a confidential, neutral space, free of distractions and disturbance. • Face-to-face interviews enable you to better build rapport, listen and observe attentively and test credibility. • Depending on the level of formality and risk in the investigation, either take handwritten or typed notes of the interview, or use an audio recording device. • If you show a witness some evidence in an interview and ask them to comment on it, give them sufficient time to understand and consider it before responding. • Have a system for identifying documents provided to you during the interview. • Enquire about, and accommodate, participants’ special needs so that they have a reasonable opportunity to participate in the interview. • The three ways to record the content of interviews are: audio recording; typed notes; handwritten notes. Of these methods, audio recording is significantly better in quality, completeness, reliability and ease for the investigator.

• Balance the need to conclude the investigation promptly against a realistic assessment of the capacities of the participants to participate in their interview. Provide adequate breaks, or hold more than one interview with the participant, if the interviews are lengthy. • After the interview, provide the record or statement of the interview to the participant and give them an opportunity to give additional comments on it.

Chapter 13: Obtaining Rich Content from Interviews Preparing great interview questions

¶13.1

Structuring the interview and sequencing questions ¶13.2 Maintain an open mind: “Mind your language”

¶13.3

Show empathy, but keep your boundaries

¶13.4

Editorial information If you have followed the process set out in this book to this point, you have set up your interview for success. The logistics have been arranged. The participant understands the process, and will soon be sitting in front of you, ready to answer questions. This person may have evidence that is crucial to your decision-making. How do you question them in a way that elicits rich content? By “rich content” we mean evidence which: • is relevant to the allegations being tested • contains all of the useful information that the person knows • is detailed and specific • you can judge to be credible or not, and • you can rely on to further your analysis and decision-making. People sometimes fear that interviews are supposed to run like something out of a gritty detective novel: a confident interrogator in a trench coat poses obtuse, confrontational or seemingly irrelevant questions that catch the witness off-guard in “gotcha!” moments, then a final accusation which traps the witness into an admission. Fictional interviews are written for melodrama. Real-life interviews in workplace investigations are far less exciting, elicit better quality evidence, and are much fairer and less stressful for the participant. In this chapter, we focus on the skills which will position you to elicit rich content from interviews. They are: building rapport, preparing great interview questions, demonstrating openness in your choice of language and showing empathy while keeping your boundaries. For building rapport, please see Chapter 9. Building Rapport Being part of an investigation can be stressful for participants. Most employees will never have been part of one, and those who have may not have had a good experience. Think about the first time you met someone whose opinion of you mattered — such as in a job interview — and how you felt. These feelings of stress and self-consciousness are being felt by the interviewee even before you have started to explain the process and ask them questions. Taking time to build rapport with the interviewee will generally allow any barriers to open communication to come down, enabling your interview to feel more like a well-managed conversation that the participant can fully engage in. Building rapport is not about creating a friendship or lessening the formality or importance of the process. It is about creating an environment where the interviewee trusts the process, feels able to be honest with you and feels comfortable discussing topics that might be hard for them to discuss. Overall, it is about building a good working relationship with them. Here are some tips for building rapport: • Be professional, respectful and polite at all times. Remember, it is not a police interrogation or a casual chat.

Be empathetic but remain impartial. Be careful not to confuse empathy with sympathy, as this could imply that you believe the participant and have pre-judged the allegations. • Explain the interview process to the participant, including how you expect them to respond to questions (ask them not to speculate, ask them only to provide detail using their own words, etc). The more information you give them about the interview and their part, and by taking time to do this systematically and giving them the opportunity to ask questions, the more comfortable they might become. • Explain what you will doing during the interview. For example, let them know that you will still be listening when taking notes, even though you may not be looking directly at them. • Tell them they can ask questions, take breaks and speak with their support person at any time. • If conducting the interview remotely, make sure they are comfortable with and have used the technology before. Follow the tips mentioned earlier in the chapter. In some cases, building rapport may take longer if the interviewee is a vulnerable witness. It might be that they are a young person, elderly, disabled or suffering an illness, or in a particularly difficult personal situation (for example, in precarious living arrangements or experiencing domestic violence). Having an understanding of what is currently causing their vulnerability in the planning stage, and how that might be impacting on their experience of the interview, will give you some time to develop a strategy for engaging with them, arranging an interpreter or support person, or seeking advice (such as from doctors, carers, etc) ahead of the interview. Difficult and disruptive interviewees may not be open to building any rapport with you, and start undermining your efforts from the start. As we describe in Chapter 14, when managing an emotional or hostile witness, keep calm and do not reflect their behaviour.

¶13.1 Preparing great interview questions Without preparing some questions in advance, you might find that the interview meanders with the participant’s interests, that you are diverted by a manipulative participant, that your intention to address each allegation in turn is overwhelmed by a chatty participant or that you forget key lines of enquiry. Prior to the interview itself, reflect on the goal in your interview plan and set down in writing some questions about key topics that will elicit the information you need to make findings about the facts in issue. Thoughtfully preparing some questions will yield more relevant and better quality responses from the participant. It will also ensure that you remember to ask about all the key issues, and provides a logical structure to the interview. In most interviews you will need to cover off on the following basic questions at least, for each incident about which the witness potentially can offer useful evidence: • What did you observe happen? • When did this happen (include the date, time and duration)? • Where did it happen? • Who did or said what? In what order did this occur? • If you responded, how did you respond? • Have you reported this to anyone else? If so, to whom? When? Where? What was said? What was their response? • Do you know of any relevant context?

• Are there any relevant notes, documents or other evidence that I should have, which are consistent with what you have told me? • Were there any witnesses? Who was within earshot/nearby? • Who else may have relevant information? Your questions should be open-ended, simple and relevant to the allegations you are investigating. Openended questions, also known as breadth and depth questions, allow for spontaneous responses and invite the interviewee to provide a lot of detail. Open-ended questions do not in any way indicate that you have pre-judged the allegations you are investigating. A good trick is to start each question with “tell me” or “explain for me” or “describe for me”. For example, “Tell me what happened from the moment Alice walked into your office.” or “Can you describe your understanding of the safety rules that applied to forklift driving on that site?”. Following open-ended questions, closed questions can be used to clarify or confirm what you have been told. Closed questions are simple questions where there is no ambiguity about what you are asking about. They usually start with: who, what, when, how or why. For example, you might ask after the open question in the examples above, “What time did Alice come in to your office?” or “Were you given a copy of the safety rules in writing?”. Anyone who has watched court room battles on television will have heard “objection, leading question”. Leading questions are inappropriate because apart from being ineffective and suggesting an answer to the question which can guide the participant to give a particular response, they contribute to a perception that the investigator has a preconceived notion of what occurred. Avoid asking questions like “So, you entered Jane’s office and yelled at her didn’t you?” or “There wasn’t ever any respect paid to OHS at this site, was there?”. If there is any implication that there is a “right answer” to a question, it shouldn’t be asked in an interview. Using open-ended questions will help you steer clear of this risk. Make answering the question easier by focusing each question on one issue. Avoid the use of questions with multiple components or conditions. Ask, “Where were you at 10am on the date of the alleged sales meeting?” rather than, “What did you do if you were not at the sales meeting; although if you say you were not, were you at the other meeting I referred to earlier that took place around that time, that probably didn’t involve all the sales people?”. This is known as double-barrelling and is ineffective, because the interviewee usually only answers part of the question, and which part they are answering may not be clear. This can cause you to repeat the remaining part of the question which interrupts the flow of your interview and potentially your rapport and credibility with the witness. Ensure that every question is relevant, or seeking some background information for an upcoming question which is specifically relevant to the allegations being investigated. The importance of relevant questions may seem so obvious as to go without saying, but it’s worth checking: how does this question relate to the matters I am investigating? While you may feel quite attached to a question you have just devised, if it actually is not “tethered” in any material way to the allegations in question, you do need to ask yourself: why am I asking this? How does it progress my obtaining pertinent information? For example, in the context of an allegation that the respondent bullied the complainant at work by yelling and swearing, relevant questions might be, “How did you speak to the complainant at the team meeting?”, “What tone of voice did you use?”, “What specifically did you say?”, and “Who else was there?” Irrelevant questions go beyond what is needed to address the allegation that the respondent engaged in bullying at work, such as “How often do you get upset in your life and yell and swear at people?”, or “When was the last time someone swore at you in the workplace?” Do remember to drill down into more detailed questions, and ask about the specific things that are relevant to the allegations. Case example In Farmer v KDR Victoria Pty Ltd T/A Yarra Trams [2014] FWC 6539, a tram driver was dismissed for using a mobile phone while driving a tram through an intersection, following an investigation by an internal manager. The driver claimed unfair dismissal in the Fair Work Commission, claiming that the investigation had been flawed. On appeal, the Full Bench of the Fair Work Commission in KDR Victoria Pty Ltd t/a Yarra Trams v Farmer [2015] FWCFB 454

agreed with the dismissed employee, holding that, in light of the potentially serious consequences for the employee (dismissal), there was a shortfall in the rigour of the investigation. In particular, a closer questioning of the witnesses should have been conducted. The investigator had failed to explore some uncertainty as to whether the two witnesses had actually seen the driver holding a mobile phone while driving the tram through the intersection (rather than another object), with insufficient attention being paid to conflicting evidence of the colour of the phone. Both witnesses gave evidence that they saw the driver of the tram, as the vehicle crossed the intersection, inspecting a “black object” in his hand, which each took to be a mobile phone. The tram driver claimed that as he drove through the intersection, the contents of his bag fell out and he picked up a black phone charger from the floor. He denied holding or looking at his phone at the time, which he said was white. The Commission therefore held that the evidence did not properly satisfy a finding that the object being held by the driver was a “mobile phone”, or that he was texting or scrolling it at the time. The Commission suggested that in this case an objective, “arm’s length” external investigation may have been preferable, both in exercising more rigour in examining the evidence and avoiding “inexact proofs, indefinite testimony, or indirect inferences”, referencing the Briginshaw case discussed in Chapter 17.

How much preparation is required? Although some preparation is useful, it is not possible to prepare a complete list of all the questions you will ask, because your questions must be responsive to the evidence that you receive in the interview. In real time, you must be able to pursue new lines of questioning about a participant’s perspective or information. Therefore, avoid a rigid insistence on only working through each of the questions you have written down. This may distract you from noticing intriguing new information or important new lines of questioning. Some investigators avoid the time and potential rigidity of a long list of questions and prefer to make a list of topics they want to cover. For example, the bullying allegation in question is: “On 15 May, Dusit spoke abruptly and aggressively to Lewis when he yelled out from his office, “Lewis, get in my office now! This is the last time I will tell you this! I will not tolerate your sloppiness, there are the same errors in this report as the one before!” Your list of topics to cover in an interview with a witness might include: overhear; where were you; context; tone; volume; anyone else nearby; reasonable. Others prepare by highlighting and notating the different parts of the written allegations that they plan to focus on, so they remember to ask questions about each part. Whatever preparation method you use, ensure that you cover specific aspects of each allegation but still leave room for flexibility. You will invariably need to respond to the evidence revealed in the interview by asking questions you have not anticipated.

¶13.2 Structuring the interview and sequencing questions As noted above, you will need to first confirm with the participant that they understand your role, and what the purpose of the interview is. How you then structure the interview is up to you. It could follow the allegations in chronological order, allegations by theme or allegations by respondent (if there is more than one). For complainant and witness interviews in particular, a technique called context-reinstatement can be very effective. Context-reinstatement is about having the complainant or witness think back and re-live the moment in their memory, before you ask specific questions about it. The interviewee is asked to think about the circumstances of the incident, where they were at the time, what they saw and heard, and in some cases, what they felt. By asking them to think about these contextual matters, the investigator assists them to draw detail from their memory. It is important that you explain what you are asking of the participant when using context-reinstatement. For example, you might say: “I want you to close your eyes and think about the discussion with Alice. I want you to think about what you were doing at the time, where you were, what you could see and hear. When you are ready, tell me in as much detail as you can remember what happened.”1 It may not be appropriate in all circumstances to ask the interviewee to close their eyes, because they might find that uncomfortable, but it is important to give them a reasonable amount of time to start

reconstructing their memory. Once they have told you everything, you can then start asking specific questions about what they have told you. When interviewing the respondent, start with a very broad approach: “What do you say in response to this allegation?” Permit the party to answer fully without interruption unless they have clearly become sidetracked onto topics that are irrelevant. You can elicit fuller responses by asking further open questions, such as, “What happened next?” or “How did you respond?” Then, depending on the response, you may need to drill down to deeper levels of specificity. Probe the account given with closed questions or reframing questions, such as “You said that you saw several emails that referred to you as disruptive and a problem. What emails are you referring to?”, then “Who was the author?” and “Do you have copies?” Explore any aspects of the account that are not clear to you and avoid pretending you have understood when you have not. For example, “You said that you are always being criticised by Sundeep — what do you mean by that?”, “What precisely does Sundeep do which you believe is a criticism of you?” and “How often does that happen?” If you ask, “How often did the supervisor fail to respond to your requests for leave?” and the response is, “Numerous times”, you will need to ask what the participant means by “numerous”, by asking “How many times?” and possibly “Over what period did this happen?” or “Can you give me the dates of your requests for leave?”. If the witness still does not provide sufficient detail, you might prompt them with, “Would you say that you made a request for leave on average once a week, once a month or a few times a year, for example?” — but only prompting them with options like this after attempting to get the witness to specify in their own words. Overall, as noted earlier, your list of questions will tend to start with the more open-ended questions, and become more specific as you test particular elements of the allegations that the witness has not already spoken about. For example, depending on the participant’s answers, you might start with “Describe your average working hours to me”, and then ask questions like, “How did you come to work consecutive 14 hour days?” and “What has Lucille said or done that has led you to work for 14 hours in a day?”. In answer to the opening request, the participant might tell you all about their working hours, whether they think they are reasonable, that it is Lucille who puts pressure on them to work such long hours and how she does this, that they have pointed this out in the past, and so on. If the participant does not pre-empt your later questions, you can ask them. If they do, you can move on to the next questions you planned. Another useful technique in interviews is to “let silence do the heavy lifting”. If a witness gives you an inadequate response, and you are concerned about the accuracy of their response or you feel they might be holding something back, look at them as if you expect them to say more and wait for them to fill the silence. Few people will sit in silence, looking at you in the eye, and not start talking again. If the participant does not keep talking, you can suggest “Tell me more about that”, or ask “Is there anything else that you think I should know about this issue?” This question also provides a general opportunity for the participant to raise any other potentially relevant evidence which has so far been “flying under the radar”. At the end of a series of questions in relation to each allegation and also at the end of the interview, always conclude by asking if the participant has anything else they wish to add or to ask. This will ensure that they have the opportunity to fully put their version of events and to raise any concerns or unresolved issues in real time. Where relevant, also ask if there are any other witnesses, documents or other materials which the participant thinks that you should consider. A note on vulnerable people and child witnesses The issues relating to the interviewing of children and vulnerable people have been closely examined by psychologists and legal commentators, including in the Australian Royal Commission into Institutional Responses to Child Sexual Abuse.2 Having regard to the existing research, including the Report of the Royal Commission, the following is considered best practice in interviews with children and vulnerable witnesses: • Your communication should be clear, unambiguous and in plain English. Proceed clearly and at a

pace which enables the participant to respond. Use simpler questions and language than usual. • Use a comfortable room (as opposed to a neutral room) and provide breaks throughout the interview. • Explain the purpose of the interview and establish ground rules. These will include emphasising that it is important to tell the truth, urging the child or the vulnerable person to not guess, advising them to respond with “I don’t understand” or “I don’t know” when appropriate, and to correct facts the interviewer gets wrong. • If possible, encourage the child to “practice” being interviewed and providing narratives, before the interview itself. Ask them to tell you about a time-limited event. For example, “What did you do before school today?”. • Use open questions to encourage them to tell their whole story spontaneously, including context and physical environment, without interruption (narrative-based approach), before proceeding to ask more specific questions (which may interrupt a child’s thought process). For example, “Tell me all about the last time you visited the park. I wasn’t there so I want you to tell me all about it from the beginning.” • Ask open questions about context. Children under five may not understand that the investigator does not have all the context and may not provide this without being asked. • Use open questions that start with “Tell me …” or “Can you tell me …” and encouragement to continue like “uh-huh”. Open-ended questions support the child in providing an elaborate, complete and coherent account of what happened. Use breadth questions like “What happened next?” to encourage the child to continue the narrative through to consequences or resolution, as well as depth questions like “Tell me more about the bit [already mentioned by the child]…” to elicit more detail. Using non-leading, open questions that build on the child’s responses as cues for further information can elicit extensive and elaborate evidence, even from very young children.3 • Avoid closed questions (that can be answered “Yes” or “No”), and avoid phrasing your questions in any way that might, inadvertently, suggest a “right response” from the child’s perspective (that is, a leading questions). Children and vulnerable adults can be more suggestible than other adult interviewees. Special care must be taken not to inadvertently indicate approval or disapproval of particular responses. • Avoid repeated questions on the same topic, which may lead children to infer that their previous answer was incorrect — as a result, they may doubt or change their answers, leading to inaccuracies and inconsistencies. However, doubling back with open-ended “depth” questions about different elements already narrated is an effective way of increasing elaboration. • Include a support person or guardian as intermediary in order to ensure the comfort of the child and to check that you are asking age-appropriate and sensitive questions. • Accommodate individual differences, including appropriately using physical props and other nonverbal memory techniques (eg drawing a scene) and different lines of questioning. Children with a physical or intellectual disability will also require a support person who understands their communication styles and abilities, for example a classroom aide. When interviewing children or vulnerable witnesses, it is important to use a slow pace, patience and gentle persistence, even when there is a level of discomfort involved. Footnotes 1

Shepherd, E. and Griffiths, A. (2010) Investigative Interviewing. The Conversation Management Approach (Oxford: Oxford University Press), 226–267.

2

See for example, Goodman-Delahunty, J., Nolan, M. A. and van Gijn-Grosvenor, E. L. (2017) Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants’ Evidence (Sydney: Royal Commission into Institutional Responses to Child Sexual Abuse), available at www.childabuseroyalcommission.gov.au/policy-and-research/ourresearch/published-research/the-effects-of-child-sexual-abuse-on-memory-and-co, accessed July 2020.

3

Powell, M.B. “Contemporary comment: An overview of current initiatives to improve child witness interviews about sexual abuse”, Current Issues in Criminal Justice (2013), 25(2), 713.

¶13.3 Maintain an open mind: “Mind your language” Once you have written your list of questions, review it critically. Look for any hint of an anticipated answer, of judgment, of assumption or of “steering” the witness. Think: “If I were the participant, would I have a chance to explain my perspective? Would I feel guided to give any particular answer? Would I feel tested if I were trying to hide something, or to mislead the investigator?”. You will never obtain rich content if your questions suggest that you have pre-judged the matter, or that you don’t need to hear the participant’s answer because you have guessed what they will say. In response to such indication, people will tend to disengage and say very little, or alternatively to become agitated and intensify their responses in order to convince you. You must take care to pose questions that are phrased in a neutral and open way, which does not in any way suggest that you have somehow predetermined the matter. Remember the leading questions mentioned earlier. Often the cues you could give the witness are quite subtle. The nuances of language, in how you phrase your questions and comments, are very important. They send strong messages to the participants about your views on what they have just told you, or what you anticipate they will answer. Here are some examples. Even slight differences in the wording can have a big impact. Rather than …

Try saying …

That was a pretty inappropriate thing for Tony to have done in the circumstances, don’t you think?

Looking back, what do you think about Tony’s actions in the circumstances?

Did that make you angry?

How did that make you feel?

That was a brave move. Whatever did you hope to Tell me what you hoped would happen next, after achieve by doing that? you took that step. Did you seriously think that was a likely outcome?

What led you to be confident that [x] would happen?

Wow, you’ve blown me away with that one. I’m not Thanks for your response. Just let me look through sure what to ask you now. my questions for a minute. Of course! I see what you mean!

I understand what you’re saying.

Didn’t you think at the time about the bullying policy that prohibits people from treating each other in such unreasonable ways?

How was that reasonable in the circumstances?

There are quite a few witnesses to the next allegation. I can’t really see how you can deny it.

Mischa says you told her in a team meeting that she would never be promoted. She also says that Mike, Toni and Sai-Wai were present at the time. What do you say to that?

One approach is to take on the persona of the “naïve enquirer”. Even if you think you might suspect the

participant’s answer to your question, do not presume anything. Ask as if you have no expectations, or explicitly acknowledge, “Even if I have an idea about your possible answers, I won’t presume anything. I want to hear your response.”

¶13.4 Show empathy, but keep your boundaries While you must remain independent and unbiased at all times, showing basic human empathy and building rapport, particularly at the commencement of the interview, will assist to raise the participant’s level of trust in you as the interviewer. Feel free to acknowledge to the participant that the interview may be stressful, and that part of your role as the interviewer is to manage the interview in a way that the participant feels able to give you their version of events. Furthermore, you may wish to also note that the witness can have a support person, access any Employee Assistance Program that is available to the participant, and their right to have a break at any time. It can be difficult to demonstrate empathy towards a participant without their possibly misunderstanding such empathy as your believing their evidence. In any event, do remember that none of the person’s evidence has been tested. Perhaps they are crying in the interview because they feel so wronged by having been accused of fraud; perhaps they are crying because their fraud has been discovered and they are anticipating being fired. There are ways of demonstrating empathy for the participant without creating a perception that you are somehow biased towards them. Remember that you are here to gather the facts and make a judgment about the allegations, but you are still a colleague and you do not have to be “harsh” with the participant in order to be even-handed to all of them. If a person becomes upset, do not say, “You poor thing. Of course that would have made you feel upset. What an awful situation for Amanda to put you in. I feel terrible for you.” Instead, pause and let the witness express emotion. Offer them tissues. Do not touch them to comfort them. Say something like, “I can see that this is difficult for you to talk about. Do you need a break?”, in a calm and sincere tone of voice. Some participants may try to manipulate the situation or engage you in criticisms of other participants or of the organisation. Do not engage in discussion or share your views. Push back by saying, “My personal views of the organisation’s values are not relevant here. What I need you to focus on is the allegations that Spencer has made, and what you actually observed.” Do not imply agreement or acceptance of evidence In everyday conversation, it is normal to use verbal responses which encourage a response, affirm what the person is saying and indicate agreement with what was said, such as “Yes”, “OK”, “Right”, “I see” and “I understand”. If you acknowledge the participant’s answer by saying something like “Yes, I see what you mean”, such a response might indicate bias or imply agreement, sympathy or acceptance of the evidence. It is not just bias you must avoid, but also the perception of bias. So, even if you were only making such comments to encourage the witness to continue, or to confirm that you have understood what they are saying, these sorts of comments can and have been assessed as indicating bias, as seen below in the case law example. Case example In Lohse v Arthur (No 3) [2009] FCA 1118 (2 October 2009), Justice Graham found the investigator did not conduct the investigation with an “open mind”. He noted that, among other procedural flaws, the investigator made remarks such as “yes I agree …”, “I’m not doubting that …” and “yes I can understand that …” when he was interviewing the officer’s colleagues. Justice Graham concluded from those comments that, “In my opinion Mr Arthur did not approach the task which was entrusted to him with an open mind and he was not open to persuasion … Rather than record that he understood the remaining matters which were addressed in Ms Barclay’s statement of 21 November 2007, Mr Arthur appears to have communicated an acceptance of what had been said, and the applicant’s claim of bias has been made good.” Justice Graham ruled the investigation was flawed and procedural fairness had been denied. He quashed the investigator’s determination and the organisation’s sanction on the employee accused of sexual harassment, and the organisation was ordered to pay the employee’s court costs.

To avoid such procedural flaws, particularly in high-risk investigations, state the following explanation at the start of your interview and record it in your notes or the audio recording: “In this interview, if I say “I understand” or acknowledge what you have said by saying “Yes”, this doesn’t mean that I accept or agree with your evidence. I will not be making that assessment until after I have collected all the evidence. Do you understand that?” Key points • Your questions should be open-ended, simple and relevant to the allegations you are investigating. • A good trick is to start each question with: who, what, when, how or how many times. • Avoid any hint of an anticipated answer, of judgment, of assumption or of “steering” the witness. • Whatever method you use to prepare your questions, leave room for flexibility. You will invariably need to respond to the evidence revealed in the interview by asking new or unanticipated questions. • Overall, you will tend to start with open-ended questions, and become more specific as you test particular elements of the allegations. • A couple of great interview techniques are to play the “naïve enquirer” and to “let silence do the heavy lifting”. • Show empathy, but keep your boundaries. This will raise the participant’s level of trust in you as the interviewer, without your getting enlisted in possible manipulation or appearing to be biased towards the participant. • Take great care when drafting your questions that they are phrased in a neutral and open way, so that they do not in any way suggest or indicate that you have predetermined the matter.

A case study — Yellow Duck Limited — Episode 4: Questions for witnesses Sam has alleged that: “Last month at a team meeting, I was presenting about a key client and I saw Marisa scratching herself then she smiled at Kim. She was obviously trying to put me off.” 1. Draft some questions for Sam, Marisa and Kim that will elicit relevant evidence about this allegation. 2. If there were 12 people in the meeting, how will you decide whom else to interview? When will you decide this? 3. Draft some questions for another employee who attended the meeting.

Chapter 14: Issues Arising During the Interview Non-cooperation of participants

¶14.1

Managing emotional or hostile witnesses

¶14.2

Look after your own safety and well-being in interviews ¶14.3 Managing irrelevant or unfocused responses

¶14.4

Detecting lying and deception during interviews

¶14.5

New allegations arising during the interview

¶14.6

Issues arising after the interviews

¶14.7

Editorial information Despite the most thorough and thoughtful planning, the interview itself can produce many unexpected interpersonal, procedural and physical challenges for all participants, including the investigator. Rest assured, however, that most procedural problems can be avoided by providing a thorough and careful explanation to all participants before the interview. How to explain the process and everyone’s role, rights and responsibilities is covered in detail in Chapters 7 and 9. If interpersonal, procedural or physical challenges do arise in your investigation, take guidance from this chapter for how to manage and respond. Chapter 20 will also help, with tips on managing conflict in investigations and looking after yourself.

¶14.1 Non-cooperation of participants Obstruction by a participant If the respondent refuses to respond to the allegations or cooperate in an interview after being offered a reasonable opportunity, you can proceed with the investigation and make decisions despite their nonparticipation. Ensure that the respondent understands that the investigation will continue without them, and that the interview is their opportunity to tell you their perspective. They must know that you will draw conclusions in the absence of any of their input, unless they cooperate. The mere fact that a respondent is “not overly helpful” in the investigation does not of itself indicate that he or she has committed the allegations being investigated. There are many reasons why a respondent may be uncooperative including distrust in the investigation process, fear of the possible outcomes, poor recollection, illness or distrust in the employer, to name a few. Rather than assume that a non-responsive respondent must be guilty, you must investigate and collect all relevant and reliable evidence before you make your findings. Case example In the decision of Anthony Whittle v Pacific National (ACT) Pty Ltd [2006] AIRC 287, the Australian Industrial Relations Commission observed that non-cooperation can mean many different things: “Mr Whittle was probably not overly helpful to Pacific National in his interview. It may be that he was hiding his guilt. Or, it may be that he just could not recall; although he later recalled more as to leaving the mule in the turning circle area. Or, he was reticent in saying or doing anything in the light of the final warning that he had just received. Or, that he was angry with Pacific National over the same warning and was being particularly uncooperative. Or some other reason influenced his attitude.”

Complainants can also show reluctance to participate (see Chapter 7).

Don’t let a reluctant complainant, respondent or participant drag the investigation out for so long that the integrity of the investigation and the procedural fairness to others is compromised. If either party has a genuine need for an extension of time then this can be granted. You may, however, have to actively manage the process and give the participant a deadline, and inform them that you will proceed without their input if they do not respond by that date. If a participant challenges your credentials in an attempt to wrong-foot you, do push back. Explain that the organisation has appointed you to conduct the investigation in your professional capacity (or role as a qualified external investigator), that you have the necessary skills and experience and that you expect that they will participate in the interview as directed by the employer. Deal with process challenges and active disruption early. If a participant’s failure to cooperate poses a challenge to the investigation process, or unsettles you, notice when this occurs and address it sooner rather than later. When participants won’t schedule their interview in a timely way, don’t answer your questions, give indirect and irrelevant responses, engage in low level aggression, or criticise you, your experience, your questions, or the process, the following steps can assist. Step 1 — Notice the behaviour. At first, you can ignore such challenges as ignoring them can reduce their power. If repeated, you can try deflecting, for example, “I am just here to conduct an interview, I don’t need to hear that.” or ask “How is that relevant to the question I have asked?”. Step 2 — Notice the repetition. If the challenges occur several times or are serious, pause in your attempt to address the content of the interview or correspondence, and take action as follows to address the issue. Step 3 — Take action and appeal to mutual goal. • Naming the behaviour and calling it out can help people to stop. This process calls the manipulative or evasive behaviours that are not helpful and directs the participant to focus on the process. For example: “One of the things I have noticed is that when I ask you a question you give a very long answer that does not directly answer my question. I am worried that we won’t have enough time for you to respond if this continues. We have limited time to record your perspective. Can you please answer my questions directly?” • “I have noticed that each time I have asked you about the promotions process, you have said that I am biased. That is your opinion but I disagree. I am not biased against you and I have come here today with an open mind and the genuine intention to understand what you have to tell me. Can I ask that we move on with the interview and achieve our goal to record your perspective on what has occurred?” • “Making critical comments about Human Resources is not relevant to the matter we are discussing here today. Can I ask that you stop making generalised criticisms of my department, and focus on my questions so I can understand your complaint?” In each of these example phrases, the investigator mentioned the shared goal of the recording of the participant’s perspective. Then, if the behaviour happens again, it is easier to raise again, for example: “Remember the chat we had about rescheduling. So that we can reach the goal of completing your interview, can I ask you again that you come as planned? If you don’t come this time, you won’t have another opportunity to put your version on the record.” Never allow more than five or six challenges to the process before you intervene, because after that the behaviour is likely to have escalated and be too difficult to turn around. Effectively you will have condoned it if you don’t act promptly. With some subtle then strong management, the behaviours may well resolve once the interview gets going, without the need for any further intervention. Step 4 — Do not put yourself at risk.

Do not put your own safety at risk by tolerating aggressive or offensive conduct. See the discussion at section 14.2 of this chapter about managing highly emotional or hostile participants. Non-cooperation of a participant before the interview Some employers require staff to participate and may sometimes direct them to do so, but you can’t force a participant to provide useful information (or even force a respondent to defend themselves!). The participant may be persuaded to cooperate if you cast the interview in positive terms. Tell the participant that this is their opportunity to put their views forward, and that, if they refuse to participate, you will not have the benefit of full evidence as you draw conclusions. You can contact the participant and say: “I understand that you would prefer not to participate in the investigation. Meeting with me is an opportunity for you to provide your perspective which may be important. In order for the employer to maintain the workplace standards set out in policies, and the employer’s values which include respect for all staff, it is necessary to take action when people complain that the policies have been breached. As such the employer is reliant on all members of staff to provide honest information in order to enable the employer to draw fair and appropriate conclusions in this situation. Employees who refuse to participate in the investigation process can lessen the employer’s ability to maintain proper workplace standards for everyone. Also, by withholding information about what you have seen or heard, you are not remaining neutral. Instead you are potentially biasing the investigation in favour of one person or another. This is why the employer expects that all staff will act responsibly in this situation and cooperate fully and honestly.” If a participant who has been directed to participate keeps cancelling at the last minute due to “very important work commitments”, or finds other reasons to delay the interview, inform the participant that the organisation has directed them to participate and that the investigation needs to progress promptly to be fair to the other participants. You may need to seek the support of their line manager and tell the participant, for example, “I have spoken with your line manager and explained the importance of the investigation to her. She has released you from your duties for three hours on Thursday morning, and will adjust her expectations of your work this week to allow you to participate in the interview.”

¶14.2 Managing emotional or hostile witnesses Investigations are often stressful experiences for participants, who may never have been interviewed before. As noted above, some participants may be expecting a television-style interrogation with accusations and aggression. Much of the stress can be removed by you as investigator remaining calm, respectful, pleasant and professional. Most witnesses will feel more comfortable and engaged in the process when they realise that you will listen to their responses without interruption, and ask questions that demonstrate your understanding of their evidence and your interest in their account of the events (“active listening”). As the best evidence will usually be collected from witnesses who are confident that you will treat them fairly and impartially, it is appropriate that you create a reasonably relaxed environment in order to build trust and rapport. Managing the participant’s emotion and hostility Complainants and respondents can show a range of emotions during an interview. Be prepared for sadness, indignation, anger, shouting and crying. If a participant is hostile or aggressive, remain cool and professional. Do not get angry or emotional. Remaining cool and professional will assist you to work through the participant’s hostility and minimise any exacerbation of their emotion. When a participant appears to be overcome by strong emotion, you can judge whether to offer a break, suspend the interview or continue. Strong emotion is often displayed at a point in the interview when you are dealing with a key piece of evidence. The most emotive responses usually relate to the subject matter that the complainant feels most upset about, or the accusation that the respondent feels most

uncomfortable about. Much can be learnt from that emotional response. Reassure the participant that, if they wish, they may take a break at any time. Offering a break acknowledges their upset state without being overly familiar and appearing to favour or pity the participant, as this may in turn be perceived as partiality. You should also permit the participant to remain silent for a period where appropriate. There is no requirement that the interview continue without pause. You can offer a participant a moment to stop and compose themselves in the interview room, and allow them to indicate that they are ready to continue. As long as you feel comfortable to continue, in order to maintain the flow of the evidence you might decide to let the participant raise their voice, to cry, or to express their emotion for a short period when describing particular events. It is quite natural for people to feel high emotions about conflict, accusations that have been made or injustices that are perceived to have occurred. Within reason, the participant should be allowed to express themselves. The emotions they express, and how they express them, may be relevant to your assessment of the parties’ relative credibility. Having said that, if their conduct is making you uncomfortable because it is aggressive or making you feel unsafe, give your first warning to the participant directly and early. Participants who become aggressive will start on a trajectory from low level and then, steadily or suddenly, increase their aggression. Therefore, you should intervene early and give them an early chance to diffuse their aggression. Then, if they don’t, end the interview before it escalates out of control. The following steps are recommended: Step 1 — Notice the uncomfortable feeling you have because of the behaviour. Don’t ignore it. Step 2 — Call the behaviour out early and intervene directly [1 st chance]. For example, you might say to the participant, calmly and dispassionately: “I notice that you are [eg raising your voice, swearing, banging the table or getting out of your seat etc]. If you wish us to continue this interview and provide your evidence to me [mutual goal], I need you to stop that behaviour.” Step 3 — If the participant does not calm down or follow your direction, go to a break [2 nd chance]. Be prescriptive about what they will do (for example, go for a walk), and normalise the break in the interview: “To get the best evidence, we need to take a break every [hour]. Let’s take a break now. I want you to go outside and get something to eat. Can I suggest you focus on what you want to get out of the interview process? It is a normal part of the process to take a break after a while, and gives us both a chance to recharge and think about what we’ve already discussed.” Here is another way to suggest a break, acknowledging the emotion that the participant has expressed: “I recognise that this process is stressful and frustrating for you. I am very interested in hearing your perspective, which is important for me to know as I investigate these allegations. If you direct your anger at me I cannot do that. I am going to take a break from the interview now, and this will give you a chance to compose yourself before we continue.” You can also suggest the participant takes a break in the room, and you can leave for a while: “Look, I have noticed that you are quite distressed, and have been raising your voice. I need you to sit here and take some deep breaths. I’m going to take a break and I’ll come back in 10 minutes.” Step 4 — After the break, if they do it again, intervene again and give them one last chance if it is safe for you to do so [3 rd chance]. Ask the participant to agree to stop the behaviour that is making you feel unsafe. You might say: “You are raising your voice again. I need you to stop doing that so that we can finish the interview. Do you agree to stop?” Step 5 — If the behaviour does not stop or continues to escalate, you should stop the interview immediately and reconvene at another time. You could say to the participant: “I have asked you to stop raising your voice, and I have given you three opportunities to stop shouting and to participate in the interview in a constructive way. I am going to end the interview now because you continue to shout. We can meet again another time, once you have calmed down.”

Step 6 — Before reconvening, get the participant’s agreement to behave reasonably: “I understand that this process can be frustrating, and it can be difficult to respond to the allegations [or to describe your allegations]. I know that this process is important to you, which is why I am making efforts to ensure that the process is fair, and to give you a reasonable opportunity to tell me your perspective. I will be better able to understand your perspective if you can explain it to me in a reasonably calm and measured way. I am only able to resume the interview if you agree to [not raise your voice, swear, etc — be specific about the behaviour you want changed]. Can you do that?” If you are at all uncomfortable about meeting with the participant again, take a colleague with you “to take notes”. You could even seek the participant’s input in writing, although it is likely that the participant will be calmer in the second interview. How to record emotion Visible displays of emotion, emphasis and exclamation are common in interviews, such as tears, using a raised or agitated tone of voice, the witness putting his or her head down on the table, strong body language such as rolling their eyes, and hand gestures. These are not easily recorded in a transcript of interview or in typed or written notes. Sometimes the emotional response you observe is very relevant to the matters under investigation, and to the participant’s credibility. It is useful to think about how you will record this in your record of the interview. Remember that your record of the interview (audio recording, or typed or written notes) will be provided to the witness for their records and may be attached to your investigation report. This means you need to record this emotion, emphasis and exclamation in your notes sensitively. Making a note that a person was “weeping uncontrollably”, “puce in the face with anger” or “sweating copiously” may be offensive to some witnesses. They may feel exposed or judged when they review the transcript or notes of interview. A useful tip, if you are audio recording the interview, is to capture what you observe by stating it out loud to the witness. For example, “I notice that you have put your head down on the table and you are crying. Do you wish to take a break at this time?”, or “I notice that you seem agitated, are you comfortable to continue?” By asking, on the record, “Are you OK to continue?” or “Would you like a glass of water, or to take a break to talk with your support person?” indicates the heightened emotional state of the participant at that point in the interview. When typing or writing the notes of interview, include a brief, factual and non-judgmental note that the witness was observed by you to be crying or emotionally distressed or “raised both arms in the air”. Such contemporaneous notes will form part of your notes of interview and should be provided to the participant.

¶14.3 Look after your own safety and well-being in interviews Risks to the investigator’s physical safety are extremely rare in workplace investigations, but they have been known to occur. Like any risk, it should be managed actively and in advance. Remember, safety first. Most interviews will be conducted on your own with the participant (and possibly their support person and/or a note-taker). You should not put yourself in harm’s way for the purpose of obtaining evidence. Here are some useful tips: • Avoid conducting interviews when no one else is around, either outside normal work hours or in an isolated location. • Be aware of the physical distance between you and a potentially difficult participant. • Ask the interviewee to remain seated, if they start pacing or moving around the room. • Sit closer to the door than the participant, and be sure there is no obstruction between you and the door. This will enable you to exit the room safely if you decide that you need to. • Intervene early to manage challenges to your process or aggressive behaviour, following the steps detailed above. • Take regular breaks if the participant is emotional, hostile or aggressive, for their benefit and for yours.

• If at any time you feel unsafe because of the level of emotion or hostility, and taking a break has not resolved the issue, you should terminate the interview. You can reconvene on another day, or even seek the participant’s input in writing. • During the interview generally, if the participant becomes physically aggressive in any way, such as leaning over you or slamming the table, tell the participant that their behaviour is unreasonably aggressive and that they should calm down. If they do not do so immediately, leave the room and do not re-enter without another person present. Relevance of behaviours witnessed by investigator Do not make the mistake of relying on your observation of the aggressive or hostile behaviours that the respondent demonstrated in the interview as evidence that the respondent “would have behaved like that” and therefore as proof of the allegations you are investigating. Even if the respondent engages in very similar behaviour to that alleged by the complainant, you must not use your own observations as evidence to support a finding against the respondent. If you do this, you have effectively cast yourself in the role of witness in the investigation and can no longer be viewed as an impartial investigator. Even if your own evidence of the respondent’s conduct in the interview was relevant and admissible (which it is not), is it really “similar fact evidence”? The respondent’s behaviour in a misconduct investigation is not a good example of how they usually behave on the average working day. Imagine that you were falsely accused of serious wrongdoing by a malicious colleague: would you be calm and pleasant when you were asked to respond to the allegations? Case example In Dr Falk v ACT Health operating as The Canberra Hospital [2007] AIRC 613 the AIRC considered a series of internal investigations into the conduct of Dr Falk, as well as an external investigation that led to Dr Falk’s employment being terminated. The AIRC described the investigations of the complaints that led to his dismissal as “meandering chaos” and lacked procedural fairness. It held that termination of Dr Falk’s employment was harsh, unjust or unreasonable. One of the flaws noted was that the investigator was too sensitive to the tone and manner of the respondent which was irrelevant. Senior Deputy President Drake expressed criticism of the way the investigator referred to the tone of Dr Falk’s responses during interview (the investigator called them “patronising and sarcastic”) and the way he took that into account to a limited extent in making findings: “Dr Falk was making hard submissions about a matter critical to him and his tone was predictable. An investigator cannot afford to be sensitive about such matters and if he or she is sensitive it is likely to affect their objectivity.”

¶14.4 Managing irrelevant or unfocused responses The nervousness of interviewees, and their keenness to convince you of their version of events, often leads them to act in ways that pull the interview off track. They might inadvertently frustrate your attempts to obtain the evidence you need. For example, they might: • tell long stories, the relevance of which it is difficult to fathom • talk very quickly and provide large amounts of detailed information • jump between topics in an illogical and unchronological order, or • refuse to stay on the subject. Give the participant a little latitude at first, as they may relax as the interview proceeds. A verbose participant may also give you useful information as they follow their own train of thought. Do give them guidance or direction if the interview is taking too long or they appear to be deliberately avoiding the issues of substance. If a participant brings up irrelevant material in response to questioning, or wants to “download” irrelevant background or details, you should refocus their attention on the issue. You can redirect the focus by asking, “Can you please tell me how this information is relevant to the allegation?”. Sometimes there is a point to their evidence and they can then explain it directly. If the

participant fails to explain the relevance, explain that you cannot consider irrelevant material in the investigation, and move on to your next questions. If a witness redirects the interview away towards irrelevant topics, diplomatically bring them back to the issue you would like to explore with them. You can also directly ask the witness to give you brief answers. Some helpful phrases are: • “Can I ask you to come back to the issue of …?” • “That background is interesting, but can I ask you again …?” • “Thank you for that. I’d now like to move on to the issue of …” • “I’ll just stop you there. I am aware that we only have an hour for this interview and I have some specific questions for you.” • “I understand that you have a lot to say on [topic], but I need you to answer my question directly please.” • “That’s interesting, but I’m not sure that is relevant to the question I asked you, which was …” You may need to ask closed questions to bring a garrulous or rambling witness back to the point. For example, “Can I stop you there to clarify one point: did you see the complainant at work last Monday?”. Such questions require a “yes” or “no” answer and can assist to bring the interview back to the issues at hand. Another technique is to summarise long rambling responses into something very succinct, providing an example of a clear and efficient answer while also showing that you have been listening. You can then ask a specific question to move the participant on: “My understanding from what you’ve said is that you did give a six-pack of beer to Luca when he agreed to swap your shift from Christmas Day to 4th of January, but that this was by way of a thank you. You’ve explained that it was not a ‘payment’ for the swapped shift, and that Luca did not ask for the beer before approving the swap. Is that correct? OK. Now, have you given beer to Luca prior to this occasion?” Allowing participants to continue unchecked can greatly increase the duration of interviews and the amount of irrelevant material you will have to sift through later. When you are interviewing a witness, it may well be that he or she is not aware of the allegations that have been made. Because you will start by asking open questions (to avoid unduly leading the witness and to maintain confidentiality), the witness will probably provide irrelevant material at first, as they attempt to “second-guess” what the matter is about. If this does appear to be occurring, ask more specific questions and, if necessary to obtain evidence from the witness, read out the allegation in full in order to determine if the witness can contribute anything relevant. Some witnesses deliberately try to manipulate the interview so that they give you only certain information, and actively avoid answering your questions. They might say to each question, “Before I answer that, can I just say …”, or read entirely from pre-prepared notes. Other participants might look to their support person for cues before responding. Redirect the witness to the question, using the phrases above. A witness who keeps looking at their support person can be offered a break to get advice if they need it; otherwise, you can ask the participant to answer the question without deferring to their support person.

¶14.5 Detecting lying and deception during interviews It is prudent to ask the witness to answer honestly and truthfully, and to ask them whether they agree to that, at the start of the interview. If you do ask this question ensure it is asked of all witnesses, and that their answers are recorded. This will avoid any perception that you have decided that a particular witness’ evidence was less likely to be truthful.

Consequences for lying Lying in a workplace investigation can lead to disciplinary action. Check whether your workplace policies state that participants in workplace investigations must tell the truth and that any failure to do so may result in disciplinary action. If the policies do state this, ensure that the participants are aware of the requirement in advance and direct them to tell the truth to the best of their knowledge. Detecting deception Despite asking or directing participants to tell the truth, during an interview you may suspect that a participant is being less than candid. You might consider a participant to be deceptive in the following circumstances, among others: 1. The evidence being given to you differs from other evidence that you have collected which is inherently credible or that is corroborated by a number of sources. 2. The witness has given you two or more inconsistent versions of events in the same interview or in subsequent interviews. 3. The witness evades the questions. 4. The participant tells you what they “would have” done, not what they did. The use of the hypothetical “would” is not a clear denial, and may suggest that the participant is describing what they would like to have done, or what they want you to believe that they did, rather than the reality. Equally, it may also be a mannerism or figure of speech which the participant habitually uses. It is appropriate to remind the witness that in a fact-finding investigation you do not need evidence of what someone “would” have done, and ask the witness to confine himself or herself to telling you what they actually recall doing, or if they cannot recall, to state that fact. 5. A group of employees have provided startlingly similar evidence, to such a degree that you suspect that the witnesses may have conspired to skew the investigation’s findings a certain way. If this occurs, it may affect the weight you give to those witnesses’ evidence. Note your concerns and comment about them in the report. Even if you are reasonably confident that a witness is not telling the truth, remember that detecting lying is difficult and most people have no better than an even chance at picking a liar from a truth teller. Research into lie detection has shown that most people’s ability to detect deception by observing behaviour and listening to speech is limited.1 This is because the physical cues of lying are not reliable, and may be entirely consistent with the behaviours of a person who is telling the truth but who is very nervous or stressed at being accused and worried that they will not be believed (people feeling “innocent anxiety”).2 So, relying on eye contact evasiveness, fidgeting, sweating, nervousness or other body language to determine lying is no longer considered reliable. Also, some people are just very good liars! Leading research in this area suggests that an alternative approach to differentiate between truth tellers and deceivers is strategically to raise the mental effort or “cognitive load” of the interview. This means giving the participant more mental and intellectual work to do in the interview. Doing this will make the interview more difficult for deceivers and lead to more obvious cues of deceit. Deceivers already have a more difficult task in interviews than truth tellers for a number of reasons: • They must formulate their lie — this fabrication may be elaborate, and the liar has to ensure it is plausible and fits in with all the evidence which might be given by other participants. • They can’t be sure what evidence the investigator already has. • They cannot take their credibility for granted and will have to monitor how their responses are being received by the investigator — a challenging task. • They will also be working hard to conceal their lies and to appear honest. • They must suppress the truth, which requires mental effort.

A key researcher in this area, Professor Albert Vrij, and others, offer a number of strategies to make the interview more mentally demanding for the person lying than for truth tellers and so assist you to detect deceit. Here are some of them. 1. Reverse chronological order. Deception can be detected more accurately when the participant is asked to relate the story in reverse chronological order and asked to also maintain eye contact with the interviewer. For example, “Tell me about your trip from work to go the Christmas party, but do that in reverse order, so start from the Christmas party and go back to the office.” Truth tellers can rely on their memories to tell their story backwards, often adding more details as they go. In contrast, a person who is lying will struggle as they are working hard to keep their story straight. Unexpectedly being asked to describe it backwards makes the task more difficult. In doing so, they are likely to make mistakes and introduce inconsistencies.3 2. Ask unanticipated questions. Liars will have planned what they are going to say about the allegations being investigated. This works well if they have correctly anticipated what you will ask them. Surprise questions will mean they have to think on their feet and they may struggle to respond, or contradict themselves. Exploit the liar’s weak spot by asking questions which they are not anticipating. If the witness has prepared themselves to answer your questions about a specific event that occurred at work, you might ask about what happened earlier on the day of the alleged incident, or ask them to describe who else was there and where everyone was sitting. Liars will typically answer with a non-committal “I don’t know” or “I can’t recall”. This failure to recall something that should be easy to remember, even if it is not obviously relevant, can be telling. Others will attempt to fabricate something on the spot, which increases their cognitive load. Feel free to probe further, because behind this response there may be something that is being deliberately concealed from you.4 Encouraging participants to say more during their interviews helps to identify falsehoods. Truth tellers will be able to seamlessly add details when you ask “Tell me more”, “What else happened?”, “What happened immediately after that?”. A participant who is not telling the truth will have prepared their version of events carefully, and may be able to convincingly relate that version to you but when you ask them for more information they will typically have little more to say apart from their prepared story. Liars, compared with truth tellers, will give significantly more detail to the expected questions and significantly less detail to the unexpected questions. If they struggle to come up with more details, perhaps their version of events is untrue, or perhaps they are reluctant to say more in case they get caught out in an inconsistency. 3. Spatial questions. A participant who is not telling the truth will be ready to respond to questions such as “What did Jermaine do next?” and “Did you respond?”, because they will have anticipated these questions and planned their answers. They are usually less well prepared to describe spatial questions about the layout of the space or who was sitting where. Being asked to draw a picture of what happened may also disorient them. Research suggests that drawing is a useful tool in lie detection because it forces the participant to provide spatial information (which might easily be avoided in a verbal answer) and dishonest participants may make a mistake as to the location of things. Participants lying about the events will usually therefore provide a sketch with much less detail than a truth teller about the same event.5 4. Repetition. A participant who is not telling the truth will have to fabricate details in real time during the interview. It will be difficult for them to recall all of the details that they are making up as they go along. If a liar fabricates an answer to an unanticipated question, it will have been done on the spot during the interview. The answer given then needs to be recalled accurately if the same question is asked again later in the interview, either in the same way or a different way. If they make a mistake you can pick this up and probe further on that topic. Someone who is lying will therefore try to avoid making a mistake by providing as little detail as possible. 5. Strategic use of evidence approach. Recent research has found the strategic release of evidence over the course of the interview can elicit

strong cues for deceit.6 A useful approach is to encourage the participant to give you their version of events in full, and ask questions until you have all the details from them about who, what, when, how often, and where the events occurred. Then, later in the interview, introduce other evidence that contradicts their version. If a participant has lied, they will need to remember what they previously said, and, in real time work hard to come up with a new version that fits this new evidence, or tell the truth. If you have more contradictory evidence available at that time, for example, another witness account or an email that contradicts their version, you can later introduce that evidence as well and ask for their comment. The participant will find it increasingly difficult to keep up the deception. They may admit the truth, or make up a new version of events entirely, creating inconsistencies that you may later rely upon when deciding how much weight to give to their evidence. How to respond to detected lying How you respond to suspected lying is important. In workplace investigations, it is important to treat all witnesses with the same respect and empathy, and to avoid prejudgment or perceived bias. Participants are often present in investigative interviews voluntarily, and have not sworn an oath to tell “the whole truth and nothing but the truth” (even if that is what their employer expects of them). Your response to apparent lying should not be a direct accusation of lying, of wasting your time or of bad faith. There are many reasons why a witness, respondent or complainant may lie or provide untrue information. They may be attempting to conceal something else from you that they do not believe is relevant to the allegations. They may be protecting a colleague or trying to avoid becoming a victim of an alleged bully. They may be presenting you with a version of events which presents them in the best light in order to protect their employment prospects. Most commonly in workplace investigations, staff have flawed recollections of events, particularly in bullying allegations which sometimes involve allegations of repeated, apparently innocuous events. Complainants can become very bonded and invested in their complaint and may unconsciously exaggerate their allegations in order to convince the investigator that the alleged events did occur. Alleging that something happened “all the time” or “never” may be untrue, but it may have felt like that to the complainant. A participant’s evidence might also be coloured by their own perspective and contain unconscious cognitive distortions of the truth, based on their belief that they are not a wrongdoer or have been subjected to improper conduct. Their lies may be almost unwittingly offered. Bearing in mind the need to remain impartial and not to have prejudged the facts alleged, it is useful to permit the participant a full opportunity to respond to each question and to relate their version in full, even if you suspect it is not the truth. In relation to responses that do not appear credible from what you know, it is best to ask questions about those inconsistencies at the end of a series of questions about the allegation. It is also useful to do so only after you have asked the witness to confirm that they have nothing further that they wish to add in relation to that allegation. Their initial evidence and subsequent responses to their own inconsistencies will be the foundation for your assessment of their credibility when you later come to analyse the entirety of the evidence collected. It is your role, as the investigator, to effectively explore what is the depth and detail of the participant’s recollection. Procedural fairness does not prevent you from calling out an inconsistency in evidence, or indicating to the participant that you cannot understand the logic of their answer. It is appropriate to revisit the inconsistencies and evasive responses with a line of questioning that probes more deeply and points out those inconsistencies. For example: “You told me earlier that you do not work on Mondays and yet later you told me that it was on Monday 5 March that you witnessed the respondent remove items from the complainant’s desk. Can you explain that to me?” By way of another example: “You said this morning that all of the expense claims that you processed were signed-off by Jingkai,

but some of the expense forms that you have just given me do not have any signature on them. Here are three of them — can you tell me about these forms?” It can feel awkward to push a witness to address their own inconsistencies but this is a core job of the investigator. Do not directly accuse a participant of lying. This is in line with impartiality being a key to the process. Reflect back the participant’s inconsistent answers and enquire further, to seek their clarification or explanation. Footnotes 1

Aldert Vrij, “Outsmarting the Liars: Toward a Cognitive Lie Detection Approach” (2011) 20(1) Current Directions in Psychological Science 28.

2

Aldert Vrij, Pär Anders Granhag & Stephen Porter, “Pitfalls and opportunities in nonverbal and verbal lie detection” (2010) 11(3) Psychological Science in the Public Interest 89.

3

Aldert Vrij, Samantha A. Mann, Ronald P. Fisher, Sharon Leal, Rebecca Milne, Ray Bull, “Increasing Cognitive Load to facilitate lie detection: The benefit of recalling an event in reverse order” (2008) 32(3) Law and Human Behaviour 253; Aldert Vrij, Samantha A. Mann, Sharon Leal & Ronald P Fisher, “Look into my eyes: Can an instruction to maintain eye contact facilitate lie detection?” (2010) 16(4) Psychology, Crime & Law 327.

4

Aldert Vrij, Sharon Leal, Pär Anders Granhag, Samantha Mann, Ronald P. Fisher, Jackie Hillman & Kathryn Sperry, “Outsmarting the liars: The benefit of asking unanticipated questions” (2009) 33(2) Law and Human Behaviour 159; Vrij Aldert., and Granhag Pär Anders, “Eliciting Information and Detecting Lies in Intelligence Interviewing: An Overview Of Recent Research”, Applied Cognitive Psychology, (2014) 28, pages 936–944.

5

Aldert, Vrij. “Is anyone out there? Drawings as a tool to detect deception in occupations interviews” (2012) 18(4) Psychology, Crime & Law 377; Aldert Vrij, Sharon Leal, Samantha Mann, Lara Warmelink, Par Anders Granhag, Ronald P. Fisher, “Drawings as an innovative and successful lie detection tool” (2010) 24(4) Applied Cognitive Psychology 587.

6

Hartwig M, Granhag P-A, Luke T. (2014). “Strategic use of evidence during investigative interviews: the state of the science” in Credibility Assessment: Scientific Research and Applications Raskin D. C., Honts C. R., Kircher J. C., (eds), (San Diego, CA: Academic Press) 1–36.

¶14.6 New allegations arising during the interview During an interview, witnesses may raise other allegations of wrongdoing they have experienced themselves or have witnessed. If this occurs, the employer should consider carefully whether the allegations should be added to the scope of your investigator or not (see the discussion in Chapter 2 about scope creep). In real time, during an interview it is appropriate to respond as follows: “I have noted what you have said and it is on the record. Those new allegations are not part of the current scope of my investigation. If you do want them to be addressed by the organisation, can you please provide me your concerns in an email and I will ask the organisation about these new issues? Even if you do not wish to make a complaint, the organisation may consider your comments in the interview and decide that the matter should be addressed regardless.”

After the interview, the organisation will need to consider the additional issues raised and determine whether they are appropriately included in your investigation, should be investigated separately at a later time or dealt with in a different way. The additional allegations raised by a participant in interview may then be treated as either: 1. New allegations that are sufficiently relevant and should be added to your investigation. 2. Allegations that should be investigated separately afterwards (either because they are not sufficiently related to the current investigation, or because your investigation is well advanced and further allegations will cause unreasonable delay). 3. Matters that do not need to be investigated at all (for example, because they would not amount to a breach of policy if proven, they have already been handled within the organisation separately, they appear to relate to dated matters or they are more appropriately resolved using another process such as mediation). 4. Similar fact evidence that has some relevance to the matters being investigated. If the new allegations are included in your investigation, they must be properly documented with particulars, and communicated to the respondent before his or her interview about the new allegations. If the new matters are not to be included within the scope of your investigation, ensure that you do two things. Firstly, document the details of the matters raised and what you or the organisation decided to do in terms of the response taken. Second, note in your investigation report the details of the new matters raised and expressly state that they were not considered to be appropriately part of your investigation and that you did not take them into account in any way in making your findings of fact. For example: “During this investigation two witnesses mentioned that they had been involved as witnesses in a previous bullying investigation involving the respondent two years ago. As it is understood that that investigation is concluded and the matters raised there were dealt with at the time, and the current investigation concerns alleged sexual harassment (not bullying) allegations, the investigator has not taken into account in any way the fact that there was a previous investigation, the allegations made there (which are not known) and the findings and actions made against the respondent (which are also not known). These matters are considered to be outside the scope of this investigation and have not in any way influenced the findings of fact made in relation to the allegations investigated here.” The reason for this explanation is to avoid complaints that you inappropriately took into account new matters which arose during the investigation and were not put to the respondent. If, however, the details about other possible behaviours are similar in nature to the behaviours being alleged (“similar fact evidence”), and may be given some weight by you in making findings of fact about the allegations that are in scope, you must provide the evidence provided about similar alleged behaviours to the respondent for their response (as contradictory evidence). This is very important as similar fact evidence is highly prejudicial and the respondent should be given an opportunity to respond to it, before it is relied upon. (See Chapters 11 and 17 for guidance on how to deal with similar fact evidence.)

¶14.7 Issues arising after the interviews Witnesses seeking to withdraw from the process After the interview, sometimes a participant seeks to withdraw from the process and states that they refuse to permit you to use the information they provided, or to include in the investigation the notes or transcript of their interview. If this occurs, remind the participant that you told them that nothing was off the record, before the interview, and that they consented to provide their evidence and offered it freely. Seek to understand why this has occurred. It is possible that they have become afraid of victimisation because they have been threatened in some way. They might even tell you that they regret giving evidence that was not entirely truthful, or which they now feel was unfair to one of the parties.

In special circumstances, the organisation might agree to allow them to withdraw their evidence; this should be rarely agreed, given that you as investigator have already heard and considered their evidence. If the witness is allowed to withdraw their evidence, explain that decision (in de-identified terms if necessary) and the reasons for that decision in your investigation report, and describe the effect of the withdrawal of that evidence on your investigation. If you decide not to allow the participant to withdraw from the process, explain in writing that you will be taking their evidence into account in the investigation, and that it is not possible in this circumstance to withdraw evidence that was already given to the investigator. If possible, provide assurances regarding confidentiality and how the information will be used by the organisation, and reminders about the organisation’s policies on victimisation. The participant accuses you as the investigator of inappropriate conduct Some participants may accuse you of bias or improper conduct such as bullying, harassment, unfair treatment, unfair process or bias, in how you have interacted with them or conducted the investigation. This sometimes occurs when people read the transcript of what they said at interview, and decide that is not what they said or meant to say, or realise they do not come across as credible. Consider carefully whether the claims have any merit, and if not, why not. If the accusation is directed at you, calmly and confidently respond to the claims. Address the participant’s concerns directly and specifically. Defend yourself and your process, without getting defensive. Explain to the person that being asked to respond to some questions in a non-threatening environment, with a support person present if they wished, does not amount to any of these things. If the accusation is directed at the organisation in general, consider referring the concerns to someone else at the organisation to respond (so that you are not seen as biased by defending the organisation). Note any particular objections (and the response) in your report, so that it is clear how you handled this matter during the investigation, in the event that it is raised again at a later time. Key points • Despite the most thorough and thoughtful planning, the interview itself can throw up many unexpected challenges for all participants, including the investigator. • Be aware of some of the common challenges that may come up during interviews and think about strategies to manage these, should they arise. • You may also need to consider strategies for dealing with issues that are more interpersonal in nature such as managing the participant’s emotions and hostility and detecting any lying or deception on the part of the participant. • Thinking about how you may respond to these issues should they arise prior to the interview will increase your confidence in dealing with issues when they do come up and your ability to successfully conduct the interview effectively.

A case study — Yellow Duck Limited — Episode 5: A familiar witness You’re interviewing Ramesh, an employee who was in the team meeting the previous month when Sam was presenting about a key client. Ramesh’s evidence, which seems credible so far, is consistent with Sam’s account of what happened in the meeting. Towards the end of the interview, you realise that you met Ramesh through mutual friends at a social function about a year ago and that he is one of the people your partner may have approached to invest in his start-up company. You are most of the way through this investigation, which is taking longer than you thought. 1. You have various options at this point: what are they, and their respective pros and cons? 2. What do you decide to do, and why?

Chapter 15: Documentary Evidence, Digital Evidence and Site Visits Gather evidence from all relevant sources

¶15.1

Common challenges and risks

¶15.2

Documentary evidence

¶15.3

Evidence from outside the organisation: Third-party witnesses, newspapers and internet searches

¶15.4

Focus on: Privacy

¶15.5

Digital evidence: An introduction

¶15.6

Data from computers

¶15.7

Data from mobile phones and tablets

¶15.8

Social media

¶15.9

Electronic workplace surveillance: Audio, video, GPS and swipe cards

¶15.10

Focus on: Surveillance

¶15.11

Site visits

¶15.12

Documenting reasons for considering evidence

¶15.13

¶15.1 Gather evidence from all relevant sources In your role as the investigator, you need to identify and collect all relevant evidence, within reason, that is practicably available to you and which might help you to make a finding about whether the allegations are proven or not. Depending on the nature of the allegations, you may need evidence about what time someone arrived and left a building, the emails someone sent and to whom, whether data was copied onto a memory stick, and the posts made by an employee on social media. You will rarely be limited to considering only the evidence of the complainant and respondent’s “recollection of events” at interview. You should make your own independent enquiries and ensure your investigation considers all relevant evidence. This is the case even if neither party mentioned that evidence during their interviews, if the evidence is not yet held by the organisation, or, if you are an external investigator, if your instructor at the organisation discourages you from seeking that evidence. Remember that a key part of your job as investigator is to decide, independently and actively, what evidence you will seek to test the allegations before you.

¶15.2 Common challenges and risks When to stop collecting evidence In your role as the investigator, you need to know when to stop collecting evidence. It is common for parties to continue to provide evidence to you, in order to further their case. You will need to know how, and when, to confidently “draw the line”. Knowing when to stop collecting, or to decline to accept, further evidence is not always clear. As a rule of thumb, you need only collect enough evidence in order to make a defensible conclusion of fact. It is not necessary, in a workplace investigation, to carry out an exhaustive process which is prohibitively timeconsuming. Keep in mind that the applicable burden of proof is the “balance of probabilities” — you do not need to test the allegations “beyond reasonable doubt”. Once you have carried out all of the interviews, and collected the relevant information, look at all the

evidence and consider whether there are gaps in the information you have collected. For example, if participants have referred to a file note of a performance discussion, or it appears that there may be some unseen emails which are likely to support or refute what you have been told, you should attempt to obtain those documents before you reach your conclusions. The amount of time you have (and the duration of the investigation) will also impact on how broad your enquiries can realistically be, keeping in mind that a procedurally fair investigation is conducted promptly. Make it clear in your report what evidence you have sought and relied on. In the unlikely event that further evidence comes to light after the investigation, and you are asked to consider that evidence and review your findings, you will be able to do so transparently and to explain how the new evidence changes, or does not change, the findings of fact you have previously made. Key concept Knowing when to stop collecting evidence is important. Ask yourself: “Have I made diligent enquiries and identified the relevant evidence? Based on the evidence I have, can I make a logical and defensible finding of fact? Is there any other evidence that exists which could sway my findings one way or the other?”

Fishing expeditions If you appear to be engaging in a “fishing expedition” by actively trying to find evidence of other wrongdoing by the respondent, in order to shore up a disciplinary case against them, your process will be perceived to be unfair. If you do uncover further acts of misconduct during your legitimate enquiries into the allegations, however, you can include them in your investigation, with appropriate notice to the respondent and a fair opportunity to respond. Be very clear about your “scope creep”, and make sure that it is only ever allowed in a deliberate, overt and fair way. See also the discussion in Chapter 13 about how to respond to new allegations which arise. Ensure that you can defend your decisions to obtain and consider evidence from both inside and outside of your organisation. If you can explain how the evidence is relevant to the allegations and your findings of fact, you are unlikely to be accused of conducting “a fishing expedition” and unfairly targeting one or other of the parties.

¶15.3 Documentary evidence There is no end to the documentary evidence that you might seek in a misconduct investigation. Depending on the subject matter, you might need to obtain as evidence documents such as: • organisational charts in order to understand the structure of different divisions and reporting lines • position descriptions in order to understand the nature of an employee’s work and the limits of their role • email records and written correspondence • records or telephone calls and SMSs, including when calls and messages were made and received • plans of working environments in order to understand lines of sight and the physical plausibility of witness accounts • records of internal financial transactions and approvals • copies of work, such as written reports, completed by employees • an employee’s work schedule or roster • file notes

• incident reports, such as for occupational health safety incidents • Job Safety Analysis for relevant tasks, inspection checklists and risk assessments, or • operating manuals for equipment. Be clear when you are collecting and analysing documentary evidence to test its credibility and relevance. Analyse what the document really proves. Circumstantial evidence Much documentary evidence is “circumstantial evidence” (or “indirect evidence”) — evidence of a related fact or facts, from which the decision-maker can infer the existence of the fact in issue.1 Here are some examples: • Phone records prove that a call was made from one number to another number at a particular time, but not who was talking or what they talked about. • A record proves that a transaction was made from the organisation’s bank account to a company which the employee part-owns, but not who made the transaction and whether it was deliberate or accidental. • A complainant provides you with a “file note” of the alleged incident, which they say they typed up soon after the alleged incident. • Security system records show that an employee’s swipe card was used to access the area at the time of the incident, but this doesn’t prove that the employee herself was actually present. In many investigations, no one will have directly witnessed the alleged conduct, so the investigator will need to make a decision on the basis of circumstantial evidence only. It is possible for an allegation to be proved by circumstantial evidence only, although do keep in mind the standard of proof (the balance of probabilities). Remember also that there are dangers in drawing inferences, because the human mind tends to jump to conclusions, attach too much weight to a fact that really only addresses one part of the case, and be quickly convinced by details which are actually explicable as coincidence. Whatever documentary evidence you collect in your investigation, take a note of its source, and include reference to it in your report. Describe the credibility, relevance and weight of the evidence, what it proves, and the extent to which you have relied on it in making your findings. Footnotes 1

Shepherd v R (1990) 170 CLR 573.

¶15.4 Evidence from outside the organisation: Third-party witnesses, newspapers and internet searches The evidence you collect can include information that is stored outside of your organisation or is publicly available. A reputable news source can be a useful way to test the claims of the parties. For example, a complainant tells you, in interview, that when they told the respondent that they were late for work because they were held up by a major industrial action rally on the way to work that closed down the city, the respondent yelled at the complainant and told them to get to work on time or don’t bother coming at all. During your interview with the respondent, the respondent tells you that the complainant is a liar and always makes up excuses for being late and cannot be trusted. In this example, it is appropriate for you to

check the online news coverage for the date in question, in order to verify the complainant’s version of events. This may also be relevant to the credibility of the complainant generally, given that the respondent has clearly put the complainant’s credibility in question in his response. In another example, a worker complains that they were bullied, and one of these allegations is that they were forced to work outside in extreme heat for five hours. The respondent denies that it was a hot day. Verify the temperature on the day in question by examining a reliable weather website. If you seek evidence from external sources, in particular the internet, ensure that the sources you use are reputable. A person’s blog (which can be edited after its publication, and list a false “publication” date) is less generally reliable than the websites of reputable news sources. Witnesses will sometimes be people who are not employees in your organisation, but instead are third parties. For example, former employees, spouses, contractors or clients may witness alleged bullying or sexual harassment. In such cases of course, the organisation cannot require or formally direct them to participate in your investigation process. You can only contact them and ask for their participation, mindful of the reputational risk for the organisation. If the organisation decides to involve external participants, those witnesses should be provided with the same rights as employee participants. For example, they should be provided with the same right to bring a support person and to receive a copy of the notes or transcript of the interview, if they wish to have one. They should also be asked to maintain confidentiality about what is discussed in the interview. If they decline to be involved, you should note in your report what efforts you made to seek their participation and the effect of their non-involvement on the evidence collected and the findings of fact that you made.

¶15.5 Focus on: Privacy The largely unfettered power of employers to watch and gather information about their workforce can easily collide with the privacy rights of employees. This is often exacerbated by the fact that few employees realise that almost no aspect of their working life is truly private. Once in their office, with their door closed, or while eating lunch in the tearoom, employees often conduct themselves as if they are in a private place. They may not realise, or have forgotten, that they were told at the commencement of employment that every keystroke, phone call, email and internet search may be recorded, stored and available for future search and analysis. Here are two competing understandings of the privacy of employees when they use the employer’s equipment. One says that, since the employer owns the equipment provided to the employee for work purposes, those property rights mean that the employer can conduct surveillance at will of the employee’s use of that equipment. Under this understanding, employees have no reasonable expectation of privacy when using the internet facilities and devices of the employer. The second understanding, which is more common in Europe, takes a “dignity” approach when considering the monitoring of employees, and sees the question of privacy as separate to the question of property in the device.2 In Australia, the failure of employees to comprehend fully (or remember in the moment) their employer’s right to collect and use information about their activities at work can give rise to later complaints of breach of privacy. Privacy laws Privacy is a complicated legal area and we recommend that investigators get advice if there are potential privacy implications of their planned actions. Commonwealth and state legislation governs what information employers are allowed to collect, store, use and disclose, and the rules differ between private and public companies. The federal Privacy Act 1988 (Cth) includes 13 Australian Privacy Principles (APPs) that outline how certain entities must handle, use and manage “personal information”. (The federal Privacy Act 1988 (Cth) does not specifically cover workplace surveillance, which is considered below.) The Privacy Act 1988 (Cth) defines personal information as:

“… information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified individual, or an individual who is reasonably identifiable.” Examples of “personal information” include a person’s name, contact details, date of birth, medical records, bank account details and any commentary or opinion about a person — all of which are routinely collected about employees by employees, for the primary purpose of ensuring they are paid, verifying their sick leave and monitoring their work performance. Australian privacy laws do contain quite strong exceptions that benefit employers, however, there are still some limits. The Australian Information Commissioner has issued guidelines that suggest that when an employer scrutinises its employees in any way, the practice should be made clear to everyone.3 Importantly, the Privacy Act 1988 (Cth) makes no specific provision for the activities of private investigators (consultants who are external to the organisation). Private investigators are generally required to comply with the APPs, even where they are small businesses — this is because the small business exemption does not apply to organisations that “trade in” personal information (which may include private investigators).4 Privacy of data on an employee’s (employer-owned) computer Computer data is backed up by the employer for the primary purposes of enabling use of that data for future work purposes and managing the risk of data loss; the security equipment was installed for the primary purpose of the safety and security of the workplace — and it is generally safe to understand a misconduct investigation to be a legitimate secondary purpose or use of that information by the employer. To balance those business interests with employee interests, employees should be expressly informed that their use of computers including email can be subjected to search, surveillance and review. A policy should put employees on notice that they are subject to that right so that they do not later have cause for complaint of breach of privacy. A regular email reminder of the IT use policy, sexual harassment policy and other relevant policies is also a good step to take. Case example In Jurecek v Director, Transport Safety Victoria [2016] VSC 285, it was found by the Victorian Supreme Court that an employer collecting material from Facebook was consistent with the Information Privacy Principles (IPPs), and not inconsistent with the human right to privacy. The review of Facebook data was necessary for the purposes of a workplace disciplinary investigation, which is a legitimate purpose. In addition, it was held that the IPPs do not require an employer immediately to advise an employee that it is accessing social media material created by the employee, in particular where (as in this case) the matter is brought to the attention of the employee after that point, and their response to the allegations was sought.

Privacy of belongings and personal space As an in-house investigator, you will have access to workspaces such as offices, open shelves, desks and unlocked storage such as drawers or filing cabinets. Employees bring their own possessions into the workplace, such as cars, bags and toolboxes. Further, the employee may regard some company assets as being for their own “private” use, such as locked filing cabinets, lockers in changing rooms, desk drawers or the glovebox of a company vehicle. Ideally, the power to search spaces that the employee might consider “private” will be expressly included in your organisation’s policies so that it is clear to all employees as to the level of monitoring or searching which may occur. If this is not explicitly covered in your organisation’s policies, be very sure that you are legally allowed to access and disturb any space that an employee might consider “private”, before you do so. Get legal advice if necessary, as opinions differ as to the fairness and legality of collecting evidence from such places. Privacy of employment records There is an exemption in some privacy laws for private sector organisations’ acts and practices in relation to employee records. These are defined to include information relating to disciplining or terminating an employee’s employment and the employee’s performance and conduct. While workplace investigations

are not expressly exempted, the information collected by a private-sector organisation in a workplace investigation may be exempt from the application of some parts of the privacy law. Legal advice, or advice from the appropriate privacy commissioner, should be sought if you need advice on how to comply. Case example In Bernard Reynolds and Country Fire Authority — re Termination of employment [2004] AIRC 791, Mr Reynolds was dismissed for unauthorised use of IT and storage of sexually explicit materials on his computer and in his office. Much of the evidence to justify the dismissal was found when another staff member was cleaning his office and the organisation then went on to review the contents of his work computer. At this time, Mr Reynolds was absent from the office because he was medically unfit for work. The evidence was put to Mr Reynolds who admitted some of the materials were his and he was subsequently dismissed. Mr Reynolds argued the dismissal was unfair because most of the materials found in his office and on his computer were not his because many other people used that office and some of the disks in the room may have belonged to someone else. Given that these disks may have belonged to someone else, the Court found that dismissal on that basis was unreasonable because it was not satisfied that Mr Reynolds could be held accountable for all materials found in his office.

The golden rules of privacy in workplace investigations are that: 1. Only information which is strictly related to employment should be collected. 2. Preferably the information should be obtained from the employee directly and (where appropriate) with their prior explicit consent. 3. Policies should include a statement of the information that the organisation collects and the purpose for which it is collected. 4. Employers should provide regular and visible reminders from time to time to employees as to what information is collected about them. 5. Take particular care if you intend to search part of the workplace that the employee might consider to be “private”, such as a locked drawer.

Footnotes 2

Laura Rodriguez (2016), Principles that Should Govern the Right of Employers to Monitor Employee’s Computer Mediated Workplace Communication: Private Sector, Master of Laws Research Paper, LAWS 582, University of Wellington.

3

See the Advisory Guidelines and Business Resources available at www.oaic.gov.au/privacy/, accessed July 2020.

4

See www.alrc.gov.au/publication/for-your-information-australian-privacy-law-and-practice-alrcreport-108/44-new-exemptions-or-exceptions/private-investigators/, accessed July 2020.

¶15.6 Digital evidence: An introduction These days, employers hold a rich resource of electronic data which can become relevant evidence in a workplace investigation. All staff who work on computers, mobile phones or other devices, as well as those employees whose vehicles or workplaces are monitored, leave a digital trail — from the moment when they arrive at work until they leave the workplace, and even afterwards. Employers collect and store data in relation to staff access cards, security systems, telephones, fax and printer machines. Voice Over Internet Protocol (“VOIP”) permits an unprecedented level of logging call details. Telephone calls to call centres are routinely recorded for training and supervision purposes, including comments made by employees while the caller was on hold. Security systems often include visual surveillance, and entry and exit data specific to individual employees’ swipe cards. Sometimes work equipment is GPS tracked, and all the common smartphones can be geolocated, tracking the employee’s every move! The data collected about employees’ computer use is even more detailed. Even the history of individual computer keystrokes can be retrieved. Of course, technology cannot distinguish between private activity and work-related activity. Much technological activity continues 24/7, during and outside of regular working hours. This has blurred the line between private life and work, and often leaves employees unclear about what constitutes activity “at work”. Increasingly, evidence collected from such electronic sources inside and outside the organisation is being examined and used as evidence to make findings of fact in workplace investigations. Investigators may find themselves collecting relevant electronic information from inside and outside the organisation, when the applicable policies about what constitutes appropriate use of that information — and in particular, what is “public” and what is “private” — are not always clear. Posts on social media such as Facebook and Twitter are a good example of this. (See the discussion regarding Israel Folau, as well as the case of Comcare v Banerji, at page 307.) Even before exploring whether such evidence is technically capable of being retrieved, the investigator should consider whether it should be sought. Without sound policy guidance and clear limits, the investigator is likely to face tricky ethical issues. How far should the employer intervene into an employee’s use of computers, phones and other electronic equipment, as well as databases and websites that gather and publish information? Is it legal, and is it fair, to collect and use certain electronic evidence in misconduct investigations? Remember, much of this activity will occur after hours, sometimes on personal devices, and often on systems and databases that were not provided by the employer. To a surprisingly large degree, gathering digital information about employees in the workplace is usually permissible and accessible, as a misconduct investigation is generally understood to be a legitimate business reason. This is because much of the electronic data that is likely to be relevant in an investigation belongs to the employer, through its provision of computer, telephone and other electronic hardware and software.

Further, the laws and judicial decisions regulating employers’ oversight of employees’ online, computerbased and smartphone activity “at work” increasingly lag behind the rate of technological advances. Despite this, there are privacy considerations (considered above), and you should also keep in mind the legislation that governs surveillance, which is addressed later in this chapter.

¶15.7 Data from computers Many jobs are conducted primarily on computers, and most jobs involve some electronic communication via email or other digital platforms. This means that, increasingly, data held on computer used by employees will be relevant evidence in workplace investigations, either offered by a party or sought by the employer or investigator. (See below for a discussion of data held on mobile phones and tablets.) Some of the types of data that can be easily extracted from computers are: • Log on and log off times, including where the computer was physically located in the building at the time based on what network ports or WIFI nodes it was connected to. Note that this type of information is circumstantial as it only indicates that a person with the correct security details was able to access the computer. Other evidence will be needed to establish who had those log-on details. • Sending and receiving emails and attached documents. • Launching of applications, including social media sites. • The plugging in and use of external devices such as USB memory sticks. • Edits and other changes made to databases and documents. • Identification data about the device itself. Devices that connect to a WIFI or ethernet network or use Bluetooth have a unique identifier called a MAC address. Also, in some cases, the devices name (if set by the user) and brand, make and model information can also be made available. • Browsing history on the internet, including where the browsing is physically done. • The Internet Protocol or IP address of the device connected to a network (internally or externally). When computers connect to a network they are assigned an IP address. There is a host of other technical data that is available. Your IT department or a forensic specialist can assist you in obtaining this information. Case study — Technical data Two employees, Oscar and Lara, were in a declared romantic relationship with each other. Oscar worked in a different area of the organisation to Lara and the employer had no concerns about their relationship prior to the incident. Lara broke off the relationship after about 8 months, after which Oscar was noticeably irritable and often angry in the workplace. Approximately 4 weeks after the breakup, Lara became aware that a fake profile on an adult match-making website had been created using her personal details and photographic images of her which she knew could only have come from Oscar. Further, Lara believed the photographs were on Oscar’s work mobile telephone and that he must have created the profile on the adult matchmaking website using his work laptop because he did not have a computer of his own. Lara made a complaint about Oscar’s behaviour and HR engaged the services of an external investigator to investigate her complaints. The investigator obtained the organisation’s network records and was able to ascertain that Oscar’s laptop (using the MAC address and the IP address associated with the network connection in his office) had been used to access the dating website after working hours. On forensic inspection of Oscar’s mobile telephone, the investigator was able to establish that Oscar had emailed photographs from his work smartphone to his personal email account, which he then accessed and downloaded at work. Other evidence, such as swipe card access, showed that Oscar was in the office at the same time that the adult match-making website was being accessed. While some of this evidence was circumstantial, in the investigator’s interview with Oscar he said early on that he had not provided his computer, email or smartphone passwords to anyone and he did not believe that anyone else had used or accessed them. Oscar admitted to the misconduct after he was made aware of the technical evidence.

Misconduct using computers Almost any type of misconduct can be conducted using computers. At Worklogic, we have relied on digital evidence recovered from employees’ computers in all sorts of investigations, including investigations of: • pornography being shared within a specific group of employees, who had all “opted-in” to the group and thereby all misused the employer’s internet, hardware and software • breach of the procurement policy, where the employee had denied having a personal relationship with one of the potential suppliers, but emails clearly indicated a friendship had been in place for years • theft of intellectual property by a departing employee, who wanted to take the employer’s information with them to their next job, and copied it onto a memory stick • misuse of the employer’s customer database for personal reasons, by accessing private information about those customers • sexual harassment and stalking of a colleague by email, via social media and on adult matchmaking websites • downloading a Virtual Private Network onto a work laptop against the employer’s policy, which the employer suspected was used to access extremist websites • accidental sharing of the employer’s clients’ data through alleged negligence, by posting information on the internet in breach of privacy legislation, and • drug deals between employees on the weekend, which they discussed via email on Monday morning. It is quite incredible how self-incriminating the computer data of employees can be, when employees assume that their employer is not watching. Access to the data Subject to privacy and surveillance legislation (see above) and the wording of the applicable company policy, employers usually take the position that if an electronic device used by an employee is owned by or has been paid for by the employer (directly or through reimbursement of usage charges), the employer or investigator may be entitled to “seize” the device and access any data on it, even without the employee’s prior permission. Also, it is often possible to review remotely and covertly — without ever needing to access the employee’s actual desktop computer — the employee’s emails, telephone and internet records, and other logs which monitor who has accessed data. This is ideal as it can be done without tipping off the respondent. You may also need to explore with the employer’s internal IT staff what security limitations are already in place; for example, does the employer’s system track each time a USB stick is plugged into a computer, and what data is transferred to or from the USB stick? In the case of laptops which are currently in the possession of the employee, the employer may have to direct the employee to return the laptop to the workplace, and, at the same time, direct the employee not to delete or interfere with any data in advance of its return, as well as providing the passwords for accessing their profile on the laptop. Some laptops come with biometric sensors as well as traditional access methods, including facial and fingerprint recognition. Where an employee has used a computer that is not owned by the employer — such as an employee who works from home on their own equipment, or who works offsite at a client’s premises — the ability to access the relevant data is less certain. Without consent from the employee or third-party owner of the hardware, or prior agreement in a contract or to a policy, it may not be possible outside of litigation for the employer to force the production of the information. You may need to negotiate with the employee or a third party to get the necessary access, including passwords and an explanation of where the data is held, as well as arranging a visit by the forensic IT specialist.

Unless you have data retrieval specialists available in-house, if digital evidence has been deleted you may need to contract a commercial data recovery service (sometimes called a “forensic IT specialist”). There are many reputable services available and they can be found locally through an internet search. Reviewing data It is important that when reviewing digital data that you only review copies of the digital data. Emails and files contain something called metadata, which is basically “data about data”.5 Metadata records information about a file such as when it was created, last opened, altered and moved. Accessing the original file after it has been extracted will update the metadata, meaning that the original information in that metadata may change, effectively spoiling it. This can become an issue if the authenticity of the file is later questioned. Forensic IT specialists have techniques for preserving metadata as part of any extraction. There is also software available which protects the metadata when the file is copied. Please note though these types of software packages may not be considered proper forensic tools, data collected in this manner may be open to challenge later. If the digital evidence is potentially important, it is recommended that a proper forensic extraction takes place. Deleted data In our experience, for wrongdoers any advance notice of a search of their computer can be too tempting an opportunity to “clean the slate” and delete, alter, fabricate or destroy incriminating data. To avoid the spoliation of electronic evidence, protect the employee’s digital footprint from deletion or alteration as soon as you deem it to be potentially relevant. You may need to enlist the assistance of your IT department to make sure the employee’s user profile and associated documents, applications and digital logs are backed up and safe from deletion or alteration. In some cases, arranging after-hours access to the computer in advance of alerting the respondent of the investigation might be necessary, providing the employee is not using a laptop or similar portable device. A forensic IT expert may be able to take a “forensic image” of the employee’s computer, which can then be tested and interrogated remotely. The intentional deletion of evidence from computers can sometimes be carried out by the complainant, surprisingly. When someone receives an aggressive or offensive image or message, often their first instinct is to delete it — out of revulsion, embarrassment, fear, or the desire not to see the offensive content ever again. This will mean that the complainant has deleted key evidence of their later complaint of sexual harassment, bullying or other inappropriate interpersonal conduct, with no intent to compromise the investigation. If it appears that important emails or data have been deleted, don’t despair. There are options for retrieval of all sorts of digital information. If employers are not equipped to attempt it themselves, they should consider outsourcing the data recovery to a forensic IT specialist. Keep in mind that the recovery of deleted files should happen as quickly as possible. This is because files on a computer’s hard drive that are “deleted” are usually only marked by the computer as “capable of being overwritten”. The earlier the file is attempted to be recovered, the lower the chances that the hard drive has already overwritten the deleted files. Even the installation of a file-recovery program on the hard drive of the compromised computer can overwrite the files which the investigator seeks. A forensic IT expert who is attempting to recover a deleted file from a hard drive may power down the compromised computer and insert its hard drive into another computer, then use an operating system running on another hard drive to recover it. The use of Virtual Private Networks significantly complicates access to evidence of their web-browsing history. Given how difficult it is to find out what websites have been accessed, and what online actions have been taken, using a Virtual Private Network, make sure that your policies explicitly ban employees from setting up or using a VPN on employer-owned devices. Footnotes

5

Krone, W. “Best practices for collecting and preserving digital communications in workplace investigations”, AWI Journal (2012), 3(3), p 1.

¶15.8 Data from mobile phones and tablets Many employees carry with them — for work, personal use or a mixture of both — a mobile device. This includes not only mobile telephones, but also digital devices such as tablet computers that have both internal memory and wireless communication ability (internet connectivity). For many people, smartphones are used as proxy computers while they are out of the office: • connecting the user via search engines, messaging and social media apps to networks of people and interests • locating the user via GPS and other location-enabled software, and • recording the history of their personal activity through the mobile phone’s capacity to record and store messages, photos, videos, timestamps and other usage data. Whether or not a smartphone is issued as a tool of work, many employees are likely to be using one while at work, be connected to colleagues via social media and communication apps (see the social media section below), and use it to remain contactable outside the defined boundaries of their jobs. This means that there is an unprecedented repository of potential evidence of an individual’s activities, whereabouts, purchases, interactions and other personal information, that is potentially available to the employer. Data held on mobile phones A mobile phone holds many different types of data in different formats. This includes the “memory” of the handset itself, as well as its SIM card and attached memory cards. The types of data that investigators commonly seek include SMS and MMS messaging, call logs, application data and contact lists. From newer model smartphones, the data also includes social media posts, audio and video recordings, contacts, web browsing, network settings and even geolocation information such as geotags contained in the metadata of images. Smart devices also keep logs of activity, similar to a search history, which can be retrieved. Smart devices usually contain a GPS chip which uses satellite data to calculate the precise position of the phone, and this data is retained by mobile phone carriers for varying periods of time. A study by the University of California, Berkeley School of Information found numerous websites collect geolocation data without notice to or consent from consumers.6 More recently in March 2020, Apple published a note on its website about its location services and privacy and how it collects and uses location data.7 This followed a report that location data was being collected by the iPhone 11 even when a user switched the feature off.8 Apple has since rectified this flaw. Mobile phone records have also been used in recent years in criminal trials as evidence of the whereabouts of a phone (and its user) at a particular time, by triangulating the data “ping-ed” to nearby phone towers, although this use has been subject to significant criticisms.9 Using phone data as evidence For instance, a complainant may allege incidents of harassment, some of which comprised messages and images received on their smartphone. The messages and images will then form a relevant part of the evidence. Similarly, where the complaint includes phone calls made by the respondent, the timestamped record of receipt of these calls by the complainant’s phone is also relevant. This does not, of course, verify the content of any call, or prove that the respondent necessarily made the call, but it does demonstrate that the calls occurred.

The easy use of the camera capability of smartphones means that participants in investigations are more commonly presenting photographs or video footage that they took of actual incidents as they were occurring. Extracting the evidence If the device is owned by the employer — Similar to computer-based evidence discussed above, the employer can require the return of the mobile telephone as its own property, and also give the employee a formal direction not to delete any data or apps, or otherwise interfere with the device’s contents, in advance of its return. (Note that the employer’s right is less clear to recover an employee’s personal data contained in an app he has downloaded, such as a social media app.) In these cases, it is wise to require the return of the phone before alerting anyone that a workplace investigation is about to commence, if that is possible. The question of extracting evidence from a respondent’s own mobile phone is trickier. A workplace investigation is not a criminal investigation and the respondent retains all the privacy law protections afforded by the jurisdiction in which the alleged incidents occurred. If the device is owned by the individual employee, the employer cannot compel the production of the phone without the express consent of the employee. If the employee has agreed in advance in a contract or a policy agreement to “comply with the employer’s investigation”, for example, it is possible that the employee’s refusal to provide their phone to assist in an investigation may be a breach of that agreement. A police investigator or a court may be able to seize a mobile device and conduct a forensic search for evidence, but this is not generally the case in workplace investigations. It is important to know the types of mobile data extraction that are available, particularly if you are thinking of engaging a forensic specialist who will want to know the level to which you want to forensically examine the device. Forensic specialists use a range of tools to examine computers and mobile telephones such as X-Ways, EnCase and Cellebrite UFED. The use of forensic specialists can be expensive, and while these tools are easily purchased, it is safer to engage a specialist to use them. Generally, in mobile data forensics there are two main types of extraction: logical and physical. Both types of extraction are done using specialist software which undertakes the extraction and then provides the data in a tabular form (usually in Microsoft Excel) or graphical form. In a logical extraction, data such as SMS, contacts, call logs, media and application data is extracted. Logical extraction extracts “what you can see” as if you were a user of that device. A physical extraction, however, builds on the data available from a logical extraction and also extracts the files, hidden files and deleted data existing on the device at the time. The type of extraction you choose will depend on whether you think the employee has deleted any data. Recovering data that has been deleted As a workplace investigator, you may be able legitimately retrieve deleted data from a device owned by the organisation or with the consent of the employee. It is noted here that some state and Commonwealth laws make the retrieval of deleted data from mobile phones illegal in some circumstances, so you should seek legal advice first. As mentioned above, it is surprising how much deleted data can be retrieved by a forensic recovery service with the right software and know-how, although this varies between devices, operating systems and models. The completeness of deletion of the data will partly depend on whether it is encrypted within the device, and whether the device’s “wiping” process will actually erase the data, or only make it capable of being overwritten. iPhones and iPads include hardware encryption keys, which are overwritten when the user wipes the phone. This means that, in general, taking an iPhone back to factory settings is more likely to prevent data retrieval than anything done to “clean” android phones.10 Designers and manufacturers often upgrade their hardware and software to remain competitive and to stay ahead of hackers. The wide variety and constant updating of operating systems, data storage, apps and other aspects of mobile devices means that special forensic processes will need to be applied to retrieve data that the user has tried to delete. In-house investigators are likely to need an external provider of this type of retrieval, if the data held on the mobile phone is particularly important.

In preparation for engaging external forensic services for mobile devices, the following steps should be taken immediately (if you have the device in your possession): • Obtain the access code or password for the device (if it is a company-owned device, that should not be an issue). Some models of smart devices (particularly some Apple mobile telephones) will resist the forensic service’s attempt to break the security settings so the codes are likely to be needed. • Put the mobile phone into “flight mode” and switch it off. This should prevent the user of the device remotely wiping data from it. The device should not be switched on again until it is in the hands of the forensic specialist. • If you have engaged a forensic specialist ahead of retrieving the device, ask the forensic specialist to give you a Faraday bag, before retrieving the device or notifying the employee of your intention to do so. A Faraday bag is made from a flexible metallic fabric designed to block electromagnetic waves. It can assist in preventing the remote wiping of a mobile telephone by someone who is seeking to delete its contents from a distance. • Even if the employer does not have access to the device they may be able to retrieve some information from the telecommunications provider if they are the owner of the account, however, this is usually restricted to call and text details and durations. If an employee has taken steps to destroy or prevent the retrieval of data (particularly from an employer-owned device), it is worth checking if this constitutes misconduct under the organisation’s policies. That separate alleged misconduct would then need to be investigated fairly. Here is a real, de-identified example of the use of smartphone data. A senior male employee, Stjepan, sent over 50 inappropriate texts and images to a junior female employee, Keren, using his work iPhone. Keren had taken screenshots of some of the text messages, but she had deleted the others. Prior to making a complaint about Stjepan’s conduct, she lost her mobile telephone. When the investigator put the allegations to Stjepan, he denied the allegations, stating that he only used the phone for work calls. His employer requested the phone from Stjepan, and provided the phone with the access code to the investigator as evidence. They discover that when he handed his employer the phone, most of the apps that normally come as standard on an iPhone were deleted or missing. The employer considered this to be unusual, and so the investigator engaged a forensic specialist to examine the iPhone. A physical extraction was conducted, which recovered all of the deleted application data including instant messages, images and text logs which were associated with the inappropriate text messages. This data was subsequently shown to Stjepan during a follow-up interview, and his denials quickly evaporated. This example shows how the investigator, working with the employer and a forensic specialist, can obtain the hardware from the employee and recover deleted information. Had the employer requested the phone from Stjepan before notifying him of the allegations, the data may not have been deleted before the investigator received it. Footnotes 6

Kevin F. King, “Personal Jurisdiction, Internet Commerce, and Privacy: The Pervasive Legal Consequences of Modern Geolocation Technologies”, 21 Albany Law Journal of Science and Technology 61, 122 (2011); Kitchen, Adrienne N, “Smart Devices and Criminal Investigations: Protecting Suspects’ Privacy and Fourth Amendment Rights”, 28 August 2017, Criminal Law Bulletin, Vol 54. Available at ssrn.com/abstract=3028119.

7

support.apple.com/en-au/HT207056, accessed July 2020.

8

O'Flaherty, K. “Apple iOS 13.3.1: Important New iPhone Privacy Control Confirmed”, Forbes, 18 January 2020, www.forbes.com/sites/kateoflahertyuk/2020/01/18/apple-ios-1331-important-

new-iphone-privacy-feature-confirmed/#3a7dabd470db, accessed July 2020. 9

10

See eg “Problems with Cell Phone Evidence tendered to ‘prove’ the location of a person at a point in time”, R.P. Coutts and H. Selby (2015), New South Wales Legal Aid, available at www.legalaid.nsw.gov.au/__data/assets/pdf_file/0014/25205/The-uses-and-abuses-of-mobilephone-evidence.pdf ; Aaron Blank, “The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone”, Richmond Journal of Law & Technology, Volume 18, Issue 1 (2012). This was an important issue in the murder trial of Adnan Syed, reviewed in the excellent podcast Serial. “Serial” (season one), audio blog post, Sarah Koenig and Julie Snyder, Executive Producers (2014) at serialpodcast.org/season-one. Pete Pachal, “Hard Proof that Wiping Your Phone Doesn’t Actually Delete Everything”, Mashable, 10 July 2014. Available at mashable.com/2014/07/09/data-wipe-recoverysmartphones/#LgfAnkeMiSqf.

¶15.9 Social media The release and changing popularity of social media platforms and smartphone apps which enable social interaction are so rapid and intense that it is almost pointless mentioning them in a printed text! Nevertheless, at the time of writing, some of the popular programs are Facebook, Instagram, Skype, WeChat and QZone, WhatsApp, Telegram, Tumblr, Snapchat, Tik Tok, Viber, Slack, HouseParty and LinkedIn. There is no end to the online means by which employees can communicate with each other and the outside world. Their use increased significantly in 2020 when many employees moved to remote and flexible working arrangements, and their only means of interacting — for work purposes and socially — became digital. The use of evidence from social media has become common not only in criminal law, family law, insurance, WorkCover claims and defamation law, but also in employment litigation and workplace investigations. Collecting evidence on the internet and in social media has vastly broadened the options for investigators: posts on Facebook, LinkedIn and Twitter, messages in chat apps, the employee’s own blog, photos on Tumblr or videos on YouTube or Tik Tok. The use of such evidence usually falls under the following categories: • as the basis for an employer alleging that a social media post, even if made “out of hours”, represents “misconduct” — as being a breach of policy and/or so inconsistent with the employment relationship that a contractual right exists for the employer to discipline or dismiss the employee. Examples of such “misconduct” include a post that brings the employer into disrepute, a photo of a sexual nature being “published” to a colleague, or a post which discloses confidential information • as relevant evidence in workplace investigations in which the allegations themselves do not concern social media activity, but where the social media posts are evidence of something else, for example, social media posts indicate that an employee was not in fact unwell when they took sick leave • evidence of a social or professional connection between certain people, for example, in a conflict of interest or procurement case. Two interesting aspects of social media evidence are the 24/7 nature of its publication (posts sit on Facebook, visible to all those who have access, all the time — not only outside of business hours), and the intended “personal” (non-business) nature of most of these platforms. Employees often argue that their social media activities were a private matter or conversation, conducted after hours and on their own devices (therefore was not sufficiently related to “work” to be subject to the employer’s regulation), or a legitimate use of the freedom of speech and political opinion.

In light of these considerations, where you are intending to seek and rely on evidence of social media use in an investigation, proceed carefully and consider the following guidelines. → Move quickly but with caution Where social media evidence is the basis for a claim of misconduct, or critical evidence in a workplace investigation, move quickly (but ethically and legally) to collect and secure the evidence, and before alerting the respondent employee. Social media posts and messaging can be very easily deleted, and deleted social media activity is almost impossible to recover. There is no “log” of social media activity or hard drive to search, and information about social network chats and communications does not normally end up on the hard drive. This means that IT forensic specialists can only extract remnants of social network conversations (conversation threads and individual chat messages) by performing a live RAM analysis of the computer. → Do not disguise your access to the employee’s social media profile There is nothing wrong with disguising your access to a publicly visible social media account. There are several ways to hide your identity when searching online and sometimes it’s a good idea to do so, for example, if you anticipate that records may be deleted by a party to the investigation if your search becomes known. Using Tor Browser is one reliable way to search anonymously. There are also search engines that don’t track users. In order to view an employee’s social media posts, most networks will require that you have an account (that is, that you “sign up” and create an account for yourself on that network). Some investigators set up a separate account when conducting investigations to hide their identity from the subjects of their investigations. In our view, this is risky and potentially unethical. If an investigator creates a fake or disguised social media account in order to “friend” (connect with) a person to collect information about them in an investigation, in addition to ethical issues, such evidence could be later judged inadmissible in court. Further, some social media sites have rules prohibiting fake accounts. → Secure and date stamp the evidence, and record how and when the evidence was collected Investigators should take a copy of relevant social media evidence which they view, given that it may be deleted once the respondent becomes aware of the investigation. For example, print or save a screen shot of the relevant social media page. Also, for each piece of evidence, record how, why and when it was collected. This information will need to go in the investigation report. → Investigate allegations of misconduct conducted on social media as you would any other allegation It is not enough to assume that evidence of a social media post by an employee is automatically conclusive evidence of misconduct by them for you to make findings of fact about and then take disciplinary action. As with any other investigation, one piece of evidence is unlikely to be enough. Procedural fairness must always be applied. You must provide the employee with an opportunity to respond to the allegations and to the social media evidence; consider their response carefully; and examine the post’s alleged connection with the workplace and its policies. Be aware of any biases that may affect your investigation or online research, and keep them in check. Case example In Mr Nirmal Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, Commissioner Jennifer Hunt of the Fair Work Commission found it was unfair to sack a Perth Airport baggage handler for “extremist” social media posts, including “we all support ISIS”. It was held that the employer failed to conduct a thorough investigation and to consider the baggage handler’s responses. Commissioner Hunt also found that when Aerocare suspended him it had already decided that he “might indeed be a religious extremist who may sympathise with ISIS” when there was no factual basis for such a view.

→ Check your facts and beware of bias Double-check your results when researching on social media. Remember that anyone can post information and misinformation on the web, so it’s important to know the source and, when there is any doubt, to test anything you plan to present as fact. When a participant provides you a printout of a screen capture of a social media feed or webpage, always

ask for the original digital image taken at the time the screen was captured. This ensures that you have an authentic screen capture and lowers the risk of the image having been tampered with. → Take care when considering personal or out-of-hours social media posts Generally, following the principles in Rose v Telstra Corporation Limited [1998] AIRC 1592, the Courts have only upheld disciplinary action in relation to “out of hours” misconduct involving social media activity where the off-duty conduct either: • is likely to cause serious damage to the relationship between employer and employee, when viewed objectively • damages the employer’s interests, or • is incompatible with the employee’s duty as an employee. Recent cases have shed light on this rapidly evolving area. For example, some cases suggest that it is acceptable to access and rely on an employee’s publicly available social media activity (including Twitter) — even if the posts were made at home, after hours on the employee’s own computer — where the comments in question are about a colleague or the organisation. This is consistent with community perception that online social media activity can have significant ramifications for organisations, and it is not necessarily “private” simply because it is conducted out of hours, since posts are visible to others during work hours. Sometimes the employee will admit making a post, but argue that it was a private matter because their Facebook setting was set to private (so only their accepted connections or “friends” could see the post) and not public (where any member of the public could see it), and none of their work colleagues were “friends”. Employees have also argued that their setting was public, but they were not aware of this. Such issues will need to be investigated on a case by case basis, but the cases suggest two principles. Firstly, it is increasingly less persuasive for an employee to argue ignorance about social media settings, or of the potential “public reach” of their posts. Secondly, the courts consider that private “messages” are appropriately considered to be private (sent by one person to another person on a social media platform — very similar to an email communication). A status update, however, even when made in a “private” setting, is a legitimate target for employers because status updates are publicised to more people and also risk being shared or reposted more widely by “friends”. Case example In Miss Sally-Anne Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358, the Facebook post in question was made by an employee who had received a smaller Christmas bonus than expected. She was also paid part of her holiday pay by cheque and not in cash. Despite her Facebook page setting being “private”, and thus her posted comment only being accessible to her own Facebook “friends”, a third party told the employer about it. Commissioner Bissett of the FWC held that a Facebook post, even if made outside working hours and intended to be a private matter, could fall within the Rose v Telstra principle (see above) if the comment was made on a website which was accessible to a potentially “uncontrollable” number of people.

→ Check whether the conduct deserves sanction, or instead is a legitimate exercise of freedom of speech or otherwise “private” conduct that has an insufficient nexus with work. Employers can be, quite reasonably, sensitive when considering social media posts that potentially damage their reputation (particularly in the public service). There is a boundary between bringing the employer into disrepute, and the employee’s right to free speech and political opinion. A good example in point is Banerji v Bowles [2013] FCCA 1052, in which a Federal Government employee criticised the government’s refugee policy on Twitter. Even though she did not reveal her name or her job in her Twitter profile, she was found not to have an “unfettered implied right (or freedom) of political expression” and therefore a stay in her dismissal was not warranted. The High Court later unanimously held that Ms Banerji’s dismissal was lawful: Comcare v Banerji [2019] HCA 23. In another example, in 2019 football player Israel Folau made posts on Twitter featuring memes depicting allegedly inappropriate and discriminatory remarks about LGBTIQ Australians. His posts led Rugby Australia to firstly condemn Folau’s posts and then ultimately to terminate his contract. Israel Folau fought

his termination in court and eventually settled with Rugby Australia, leaving undecided the question of whether his social media posts were reasonably considered public or private, and whether it was relevant that Folau had a high public profile and was well known to be associated with Rugby Australia. Before you seek evidence of an employee’s “out of hours” social media activity, check your organisation’s IT and social media policies and the employment contract. Ensure that you follow the processes and abide by the boundaries set out in these documents. Open Source Intelligence Tools (OSINT) With the increased use of social media apps and the internet, and the requirement to create a user profile for most websites, Open Source Intelligence or OSI has started to emerge as a useful tool for investigators. Simply conducting a search of OSI can provide a myriad of information about a person’s online presence, using free and pay-to-use tools that are available online. OSI is information or data collected from publicly available sources on the internet. While Open Source Intelligence sounds very cloak and dagger, OSI tools are simply a sweep for data that is publicly available, based on search criteria that the user inputs (such as an email address or username). Results are presented in a summary or graphical format. OSI is useful when some information is known about a person’s activities on the internet and more information is required, such as when a questionable email address has been used to harass an employee. OSI is not a hacking tool. Consider consulting with a specialist unless your technical skills are strong.

¶15.10 Electronic workplace surveillance: Audio, video, GPS and swipe cards There are a number of different ways in which an employer itself can electronically monitor the activities of employees in the workplace. These include: • audio and optical (video) surveillance devices • GPS tracking and geolocation of devices and vehicles, and • swipe cards for entry into buildings, carparks and other premises. Audio and optical surveillance Workplaces that wish to implement routine CCTV or other surveillance footage taken at worksites need to have clear signage alerting all employees to that surveillance, and also set out the nature, extent and purpose of such surveillance in employment contracts and company policy, reinforced by regular training. This should ensure that the employees have been given “notice” and implicitly given their “consent” to the surveillance (see discussion of surveillance, above). Reliance on any evidence collected in breach of the organisation’s policies or in breach of surveillance laws will certainly be grounds for a party to argue that your investigation was procedurally unfair. Covert surveillance is generally prohibited without specific exceptional circumstances being met. Case example In Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248, a mining company relied on video footage taken by a security guard at a site during an industrial protest to allege that an employee was guilty of misconduct. The footage allegedly showed him expressing frustration with the company, making inappropriate and offensive comments, including profane and racially abusive language. The employee argued that the comments were made in a private conversation between “old friends”, not intended to be public, that he was off work at the time, not on company property and not in work uniform. The FWC disallowed the use of the video evidence in any disciplinary proceeding on the basis that the conversation was private, that it was not reasonably foreseeable that the conversation would be overheard, and in all the circumstances should not have been recorded.

GPS tracking and geolocation of devices and vehicles A Global Positioning System (GPS) tracking device is an electronic device used to determine and record the geographical location of a person or an object. Obviously in a workplace investigation, evidence of the location of an employee at a given time can be crucial evidence, and circumstantial evidence of this can

be obtained by GPS monitoring of the employee’s work vehicle or electronic device. Remember that the GPS tracks the vehicle, no matter who is driving. Evidence that a vehicle was at a particular location is not proof that the respondent employee was responsible for the vehicle at that time. Other evidence will need to be gathered about who was in control of the vehicle at the time (such as the employee signing out keys to the vehicle on that day, or the employee talking with a colleague over the radio around that time indicating they were in that vehicle). Before implementing GPS technology for these purposes, or using such data as evidence, we recommend that employers and investigators adhere to the same guidelines that apply to other types of surveillance discussed above. In addition, in NSW, a notice must be displayed on the device or vehicle that is being tracked, setting out in detail all aspects of the surveillance’s purpose and use. Geolocation technology is different again. It uses identifying features from computer data to estimate the geographical location of the user. For example, indicators seen in a photo or video can be used to determine the location where it was taken, or the Internet Protocol (“IP”) address of a computer to determine the geographical location of the computer. Other data used for geolocation includes numbers embedded in hardware or software, invoices, Wi-Fi positioning system, device fingerprints, device GPS coordinates and other embedded or self-disclosed information. Geolocation technology is used by banks in detecting potential credit card fraud, by comparing the location of the IP address to the billing address on the bank account or the shipping address provided for the purchase. The device’s IP address can be used to determine its location, and the organisation or user that the IP address has been assigned to, but of course it does not identify the person who was sitting at the computer when the suspicious internet activity was being carried out. Swipe card technology It is common for employers to issue its employees with an individualised swipe card, either to obtain access to a work premises (entry and exit are not possible without one), or to record their access to the work premises (entry and exit are uninhibited but the employee can choose to log their entry and exit). Some systems require additional information to be entered as verification of the user’s identity, such as a personal identification number. At present, most swipe cards are simple and do not contain GPS or other geolocation tracking, inside or outside the premises. They only record the signal that is passed from the swipe card to the swipe card reader when they are in close proximity, then the swipe card reader submits information through the electronic system associated with it, which processes key information about the transaction. Evidence that a swipe card was registered at a particular reader does not necessarily mean that the employee to whom the swipe card is assigned was the person who used that swipe card at that time. Again, remember that data from swipe card systems is circumstantial evidence (see Chapter 15). Swipe cards are portable, and easy to steal, to lose or to transfer between employees. This means that evidence of swipe card usage is of less probative value than, for example, footage from a security camera which clearly shows the employee walking through that door. New technology means that swipe cards are likely soon to become more sophisticated. In 2016, a Boston-based company developed a special badge which hangs around the employees’ necks on a lanyard, and records not only their entry and exit to the workplace, but also their specific movements within the building, and whom they are talking to. Each badge has two microphones, motion detectors and a chip which conducts real-time voice analysis. This use of biometric data — which recognises people based on their physical characteristics, including voice, iris pattern, fingerprints, handwriting, DNA or gait — is an early example of likely future developments. The intention of this badge is for employers to have access to better information to evaluate performance, but it would also provide a wealth of information that any misconduct investigator would love to get their hands on.11 The potential abuse of such data raises legitimate privacy concerns, and there are additional negative implications for workplace culture where every employee’s detailed biometric data is tracked by the employer. Technological advances such as these mean the boundaries of legitimate use of digital information in the workplace will continue to be tested. Footnotes

Footnotes 11

Source: Thomas Heath, “This employee ID badge monitors and listens to you at work — except in the bathroom”, Washington Post, 7 September 2016.

¶15.11 Focus on: Surveillance The ability to conduct surveillance of your employees — in person and digitally — brings with it responsibilities to avoid the possibility of abuse and misuse. A complete lack of surveillance could mean that risks are inadequately managed; conversely, overuse of surveillance may impact on trust and confidence in the workplace. State laws generally regulate the installation and use of closed circuit television (CCTV) surveillance, and some states and territories have laws covering the use of surveillance devices in the workplace.12 Despite this, much of the digital footprint described above is not specifically regulated. State

Legislation

VIC

Surveillance Devices Act 1999 (VIC)

NSW

Video, , Computer, Tracking: Workplace Surveillance Act 2005 (NSW) Mobile Phones: Surveillance Devices Act 2007 (NSW)

ACT

Video, Computer, Tracking: Workplace Privacy Act 2011 (ACT) Audio: Listening Devices Act 1992 (ACT)*

QLD

Invasion of Privacy Act 1971 (QLD)

WA

Surveillance Devices Act 1998 (WA)*

NT

Surveillance Devices Act 2007 (NT)*

SA

Surveillance Devices Act 2016 (SA)*

TAS

Listening Devices Act 1991 (TAS)*

QLD

Video, Computer: Criminal Code Act 1899 (QLD)*Audio: Invasion of Privacy Act 1971 (QLD)*

* Legislation not specifically directed at surveillance in the workplace, but has potential application. As the regulation of surveillance is dealt with differently in each jurisdiction, we strongly urge you to obtain legal advice if you are unsure of whether (and how) to collect a particular type of data or use it as evidence. If you are intending to conduct surveillance of your employees — that is, by installing a listening, optical, tracking or data surveillance device in the workplace — you must check the applicable laws first. In general terms, surveillance is permissible if it is: • carried out in accordance with a policy that has been communicated to employees, so that they are aware of and understand that surveillance may be undertaken, and • consistent with the laws that apply in that state. For example, in Victoria the Surveillance Devices Act 1999 (Vic) makes it an offence for an employer to knowingly install, use or maintain a listening, optical, tracking or data surveillance device to conduct electronic surveillance of a “private activity” to which the employer is not a party, without the express or implied consent of each party to the activity. Private activity is defined to mean an activity carried out in circumstances that may reasonably be taken to indicate that the parties to the activity desire it to be observed only by themselves, such as, for

example, when in an office with doors closed, in toilets or lactation rooms. So an employer will be able to conduct surveillance of activity carried on outside such private areas, or in circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else. Additional Commonwealth legislation also applies. The Telecommunications Interception Act 1979 (Cth) makes it an offence to intercept a telephone call, as it occurs without the consent of the parties to the conversation. Stored communications and emails are covered by the Telecommunications (Interception and Access) Act 1979 (Cth) which creates offences for unauthorised access and use. There are many aspects of working life that are not covered by the constraints provided in the state and commonwealth legislation, and these are largely unregulated. In the absence of clear legislative guidelines, employers are advised to ensure that their policies and procedures fill this gap. Clearly articulated and specific guidelines should address the business needs, while also balancing the legitimate privacy interests of their employees. The NSW legislation (which is similar in the ACT)13 is quite specific about the content of the notice that is given to employees of the proposed surveillance, namely that it should specify: (a) the kind of surveillance to be carried out (for example, GPS for tracking purposes) (b) how the surveillance will be carried out (for example, via the installation of a GPS tracking device and recording of data from that device) (c) when the surveillance will start (d) whether the surveillance will be continuous or intermittent, and (e) whether the surveillance will be for a specified limited period or ongoing. The golden rule of surveillance in the workplace is to check the law before setting up the surveillance. Don’t wait until you need to rely on the recording or data that you have already collected; by then, you may have already breached the law and your employees’ rights. Further to this, best practice in electronic surveillance in Australian workplaces requires the following: • any surveillance conducted should have a legitimate purpose and be as limited in scope as possible to achieve the objective • subject to some exceptions, electronic surveillance of employees should not take place without their implied or express consent • employees should be given advance notice of the surveillance or potential surveillance • advance notice of surveillance can be given via employment contracts, workplace policies, regular refresher training and notices posted in the workplace, in such a way that it is reasonable to assume that all employees are aware of and understand the monitoring before it occurs • the form and content of the notice given to employees is important, and covered by specific legislation in some states — at least, the policy should include an explicit statement of the methods, purpose and scope of the proposed surveillance in the workplace • generally it is illegal for an employer to carry out any surveillance of its employees in any change room, toilet facility or shower or other bathing facility at a workplace • employers should provide to employees highly visible reminders from time to time, as to what information is collected about them and their activities at work, and • if considering any surveillance or recording that is unusual, intrusive or which could possibly infringe the rights of your employees, get legal advice before setting up or conducting the surveillance. Don’t wait until you need to rely on the recording or data you have collected; by then, you may have already breached your employees’ privacy rights.

Of course, if you have access to surveillance data that the employer (or even a third party) has already collected, and you wish to access and use it for the purpose of an investigation into misconduct, you should check that you have the legal right to access and use the data for that purpose. It goes without saying that information about employees that has been illegally collected cannot fairly be used as the basis for a finding of misconduct or later disciplinary action. A case study — Yellow Duck Limited — Episode 6: Smart phone recording Kim, one of the participants in your investigation, approaches you in your office late one Thursday afternoon. “I’ve just emailed you something,” she says. “It’e’s ranting and raving, carrying on about you, about me and Marisa and this whole nonsense complaint he cooked up against us to avoid getting sacked for poor performance.” Before you can discuss this with Kim, she heads out the door. You check your emails to find that you have received an email from Kim’s personal email address, headed “Recording” with no further written explanation, and an audio file attached. You hesitate to open it, and think through your options. 1. Is there anything that you need to know about the recording before you decide what to do with Kim’s email (assuming this scenario takes place in your state)? 2. If Kim refuses to answer any questions about the recording and how it was made, should you listen to the recording? Should you incorporate it as evidence in your investigation? Why or why not? 3. If Kim answers your questions about the recording and satisfies you that you are legally able to listen to the recording and incorporate it, how will you handle this new evidence? How might you test its authenticity and judge its relevance? 4. If you decide not to listen to the recording, is there anything else that you will do with the information that Kim provided you verbally in your office? 5. If you decide not to listen to the recording, how will you respond if Kim and Marisa later accuse you of bias against them, and of not conducting a thorough investigation?

Footnotes 12

As at the date of writing, currently Victoria, NSW and ACT.

13

Workplace Surveillance Act 2015 (NSW), Pt 2, s 9–14; see also Workplace Privacy Act 2011 (ACT), Pt 3, s 13–18.

¶15.12 Site visits In many cases, viewing the site of the alleged conduct can assist in determining whether it could have occurred as alleged. For example, in a case of an alleged assault, a witness may describe that he had a line of sight from where he was standing to the alleged location of the assault. This evidence may not be so persuasive if a site visit in fact demonstrates that the witness cannot possibly see the alleged location from where he was standing because of the location of nearby buildings and shrubbery. A site visit may also help determine whether any witnesses were present at the time, or whether surveillance evidence is available such as CCTV or swipe card records. A site visit is not always necessary, and can add to the cost of the investigation depending on its geographic location. If the physical layout of an area and the location of the respondent and complainant and any witnesses are significant to the allegation, an alternative is to ask the participants in their interview to draw a diagram of the area, and seek to obtain photographs from an independent person who is already at the worksite. A simple architectural plan of the site (exterior or interior) might also be available from the employer or landlord. Clearly mark any such diagrams or photographs to show by whom, how and when they were prepared. In interviews, you can then refer to the diagram, photographs or plan, and ask the participants to mark clearly the location of people or items being examined.

¶15.13 Documenting reasons for considering evidence

Document the reasons you have for collecting certain evidence, and also why you declined to collect certain evidence that was suggested to you by the parties. To avoid any suggestion that you have been selective in your approach to the collection of evidence in order to obtain a particular outcome, only collect information which specifically relates to the allegations that have been made. Your decisions about what evidence to include or exclude may later be scrutinised by one or both of the parties, if they wish to challenge your findings and are able to force the production of your report. If you can defend your decisions based on relevance and the issues in dispute between the parties, your report should be able to withstand any such criticisms. A clear explanation of what evidence you collected, from whom and why is helpful. For example: “List of documents relied upon: 1. Transcript of interview with complainant and respondent dated 1 August 2020. 2. Transcript of interview with Sam Moloney dated 2 August 2020, co-worker of the complainant. 3. Bundle of documents provided by the respondent containing minutes of meetings and associated documents discussed during those meetings (including draft correspondence from Sam Maloney to Minister Akhter dated 16 May 2020), provided as evidence of what allegedly occurred during the meetings referred to in allegation 1 and 2. 4. Newspaper article from The Herald headed “Ministers charge taxpayers for trip involving party fundraiser” dated 24 June 2020, accessed online by the investigator in relation to the matters raised by the complainant in allegation 3.” Key points • Your role as the investigator requires you to identify and collect all relevant evidence which is practicably available and which can help you to make a finding as to whether the allegations are proven or not. • Don’t rely solely on face-to-face interviews with those directly involved within your organisation. Remember that you can seek evidence from third-party witnesses, as long as the evidence is relevant and can be reasonably obtained within time, cost and confidentiality constraints. • Consider what other evidence might be useful: news sources, documents, digital evidence and site visits. • Privacy and surveillance laws and policies should be carefully considered and legal advice sought if you are in doubt. • The regulation of employees’ use of social media is still developing. Ensure that you comply with your organisation’s policies if you obtain evidence from these sources, and, if appropriate, get the employee’s consent first.

A case study — Yellow Duck Limited — Episode 7: Social media evidence Recall that Sam also wrote in his email to you: “Last week Brandon gave me a printout of his Facebook page and it shows posts that Marisa and Kim made, and other colleagues were tagged, they referred to me as ‘mental’.” 1. How will you obtain evidence about the alleged Facebook comment? 2. What issues might arise with respect to the Facebook evidence? 3. Who is a relevant witness to the allegation about the Facebook comment?

SECTION 5 Analysis, Decision-Making and Report-Writing Editorial information “It is a capital mistake to theorise before one has data.Insensibly one begins to twist facts to suit theories,instead of theories to suit facts.”Spoken by Sherlock Holmesin Sir Arthur Conan Doyle, A Scandal in Bohemia

Chapter 16: Contradictory Evidence An understanding of contradictory evidence

¶16.1

Why put contradictory evidence to the parties?

¶16.2

When, how and to whom to put contradictory evidence

¶16.3

Communicating the contradictory evidence

¶16.4

Managing delays and failure to respond to contradictory evidence ¶16.5 Collecting conflicting evidence: When to stop!

¶16.6

Assessing responses to contradictory evidence

¶16.7

Editorial information Now that you have conducted all your interviews and collected all the evidence, you need to consider whether there is any evidence that you have collected that contradicts what one of the parties has told you and which you are going to rely on to make findings of fact. This evidence is called “contradictory evidence”. Before you make a decision about the matter, to ensure procedural fairness is afforded, you must provide that contradictory evidence to the relevant party for their response, and take into account their responses before you draw a conclusion about the relevant allegation.

¶16.1 An understanding of contradictory evidence Contradictory evidence is best illustrated by way of example. Respondent Hala tells you that she is not responsible for damage to a colleague’s personal property and theft of the company’s projector, which occurred at or about midnight at the Christmas party held in the office. Hala says she had left early, and was home by 11.00 pm. Hala provides a statutory declaration by her partner, Erika, which confirms Hala’s version of events. Hala’s alibi therefore appears to be corroborated and potentially credible. Then a witness, Vinh, tells you that he thinks Hala was still at the party after 11:30 pm. Vinh remembers saying goodbye to Hala when he left the party, and he knows it was 11.30 pm because he had agreed with the babysitter of his kids that he would be home by midnight. You obtain CCTV footage which appears to show Hala leaving the building just after midnight. The evidence from Vinh and the CCTV footage are contradictory evidence because they contradict Hala’s version of events, and you will be taking it into account in your analysis and decision-making. Therefore, to provide the respondent with procedural fairness, you must put that evidence to her for her comment, and you must consider her responses before you rely on that evidence to make a finding of fact. What is “contradictory” to one party’s version of events is usually affirming to the other party’s account. There is often contradictory evidence for both parties to consider. In the above example, there is contradictory evidence in relation to both accounts of the evening. Hala’s partner Erika has said that Hala was at home by 11.00 pm, which is contradictory to the complainant’s allegation that the respondent was still present at the party around midnight. You would therefore also need to put the evidence from Erika to the complainant for comment. Even if you think that one version of events is more convincing than the other, all contradictory evidence must be put to the relevant party (or parties) for their comment before you make a final decision. Case example

In Andrew McCouaig v Colliers International (SA) Pty Ltd T/A Colliers International [2019] FWC 1517, a property manager was dismissed from his employment on the basis of his alleged failure to communicate to his employer about a fire that had occurred at one of the buildings it managed. The Commission found that Colliers had terminated Mr McCouaig’s employment by relying on incorrect information, to which they had not given him an adequate opportunity to respond. That is, they erroneously accepted advice from the relevant fire service that it had contacted Mr McCouaig on the night of the fire, when in fact, Mr McCouaig was able to establish at the hearing that this had not occurred and he had also not been notified of the fire by a tenant of the building. Colliers had also conducted a disciplinary meeting at short notice and decided to terminate Mr McCouaig’s employment after he had advised that he would not be attending. Deputy President Anderson held that the dismissal was not for a valid reason. In his decision, DP Anderson stated that he considered that it was not reasonable for Mr McCouaig to be called into a disciplinary meeting with one hour’s notice and also that the discussion of the facts of the fire or the decision made by the Human Resources Manager or by the three senior managers were not procedurally fair. He further said: “The meeting went ahead and a decision to dismiss was made without the employer ever informing [Mr McCouaig] of the specific allegations against him, without the employer knowing [Mr McCouaig’s] version of events and without the employer producing to the manager the supposed evidence on which it had made a wrongly formed assumption. [The HR Manager] recommended dismissal for alleged failure of duty without having ever spoken to Mr McCouaig about the fire incident. Her evidence that from 6 August there were ‘no matters I needed clarification’ was prejudgment and patently unreasonable.” DP Anderson was particularly scathing of a decision to terminate an employee’s employment based on an investigation which failed to follow the foundations of procedural fairness, stating that: “The proper role of a human resources department is to sit between impulsive managers baying for dismissal and the obligation of an employer to ensure procedural fairness. This role was cast aside.”

Importantly, you should never assume that a party will have no answer to contradictory evidence, or that the contradictory evidence is so convincing that you needn’t test it. Firstly, the provision of contradictory evidence is a core part of procedural fairness, even if the party has no response. Secondly, you never know what the party might say in response to contradictory evidence. Here is an example: three witnesses tell you that they saw Elly drinking at the Lomond Hotel, when she was supposed to be on night shift. Evidence from those three witnesses seems convincing. Elly then produces a digital photo of herself and her mum in Paris on that day (with embedded data which confirms the date it was taken) and an email which confirmed her flights. Never forget that a participant’s evidence often seems credible until you have tested it, and surprising new information can always come from left field at a late stage. What is not contradictory evidence? You do not need to provide to a party the evidence that you have collected which is consistent with their version of events. Such evidence is not “contradictory”. Accordingly, procedural fairness does not require that they have an opportunity to comment on that affirming evidence before you make a decision. You also do not need to provide any information to a party for comment which is contradictory to their version of events but which you have established is not relevant to deciding the matter. In the example above, Erika may have commented that Hala returned home sober and Vinh may have described her as quite drunk, but if her state of inebriation is not relevant to any conclusions you might draw then it does not need to be put to Hala for her response. Not every piece of contradictory evidence needs to be tested by putting it to the parties. Limit this process to the evidence that you will rely on to make findings. This will usually exclude the contextual evidence that you may have collected from witnesses in their interviews, as well as evidence about the facts that are agreed between the parties. Whether or not the facts are contested, sometimes the parties have a different view about whether the conduct was reasonable in the circumstances or constituted a breach of policy. The parties’ opinions about the wrongfulness of the conduct is not usually necessary to put to the parties for comment. For example, both parties agree that the respondent raised his voice, and the issue under consideration is now whether such yelling was reasonable in the circumstances and/or a breach of policy. In such a case, it will usually be adequate for you to obtain the two parties’ views about whether the behaviour was reasonable or not, and then to proceed to make your decision. Sometimes a participant suggests that a party or a witness has ulterior motives for giving certain evidence, or is otherwise not trustworthy. If you are going to consider such suggestions in weighing up the evidence, you should also put them to the relevant participant for their response. If criticisms of a

participant’s credibility are incredible or obviously groundless, however, and you are not going to consider them in your decision-making, you can simply state this in the report without asking the participant about it. Here is another worked example about contradictory evidence. Evidence from Johannes In allegations of bullying made by Johannes against Rachel, he complains that Rachel: 1. Restructured his workgroup. 2. Took key parts of his role away. 3. When he tried to meet with her to complain about the restructure, repeatedly refused to meet with him. 4. Since the restructure, she has not spoken to him, except once, when she yelled at him and said, “The decision is final and I will not discuss it with you. You’re lucky to have a job at all!” Johannes has provided you with emails seeking a meeting with Rachel, his position description and documents from Rachel showing the new work structure. Evidence from Rachel Rachel provides you with emails showing the senior management team was responsible for the restructure and tells you that she was instructed to implement it, so she is not responsible for Allegations 1 and 2. She also tells you that she has not spoken to Johannes since the restructure — and certainly not yelled at him — because he went on sick leave and has not been back in the office since the day that the structural changes were announced. Rachel provides you with sick leave certificates to support her evidence showing that Johannes has been on sick leave since the restructure. Evidence from witness Alistair Alistair gave evidence that he overheard Rachel yelling, or “at least speaking loudly” at Johannes. Alistair says he recollects that he heard Rachel say something like, “You could be a lot worse off”. He can’t remember exactly what words she said or when this occurred, but he thinks it was some time after the restructure. Before making a finding about Allegation 4 (yelling), you should give Rachel the opportunity to comment on Alistair’s apparently corroborative evidence (in part) about the yelling and the comment about Johannes being “a lot worse off”. Before making a finding about Rachel deciding the restructure and taking key parts of his role away (Allegations 1 and 2), it is procedurally fair to put to Johannes Rachel’s evidence about the senior management team making those decisions, and invite him to explain why he believes that Rachel is accountable. Johannes should also be invited to comment on Rachel’s evidence about him being on sick leave at the relevant time; and Rachel should be given copies of documents you received from Johannes (if she hasn’t already).

¶16.2 Why put contradictory evidence to the parties? Putting contradictory evidence to the parties for comment is necessary for two reasons. Firstly, and most importantly, it is to ensure procedural fairness. You must give the parties an opportunity to respond to the evidence you might use to make a finding of fact against them. Secondly, the contradictory evidence process is an effective way to test the evidence you have obtained — both the contradictory evidence itself, and the parties’ versions of events. Often the most revealing and interesting evidence comes to light late in the investigation when contradictory evidence is put to the parties for response. Any inaccuracies or inconsistencies in a person’s evidence become clear, and they are required to explain them. You can test the parties’ claims against the other evidence you have

collected, and see how they respond to evidence that does not fit their version of events. In the example above, putting contradictory evidence to Rachel and Johannes might explain some of the contradictions in the versions of events provided. For example, if the sick leave certificates were put to Johannes for a response, he may say that while he was sick, he came to the office on three occasions to try and talk to Rachel, and that it was on one of those occasions that she started yelling at him. Thirdly, it provides the parties with a clear understanding of the evidence that has been collected against them, and can therefore lead to more ready acceptance of the findings of fact and outcome, when these are later provided to the parties.

¶16.3 When, how and to whom to put contradictory evidence When Given you will usually interview the complainant first, you are unlikely to have any contradictory evidence to put to the complainant in their first interview. This means you will usually have to go back to the complainant after you have collected all the other evidence and worked out what is “contradictory” to the complainant’s account. In relation to contradictory evidence for the respondent, you can put that to the respondent during their interview if you interview them last. As noted above, in Chapter 14, research has shown that strategic release of information is an effective way to test whether the witness is being truthful or not. Take care, however, to give the respondent a full opportunity to explain their response to the allegations first, and before jumping in with the contradictory evidence you want them to respond to. The main purpose of the respondent’s interview is for them to have an opportunity to respond to the allegations that have been made. Satisfy yourself that the respondent has provided their full response. Confirm this by asking whether there is anything further they wish to add. Then you can put any contradictory evidence to the respondent in that interview. Alternatively, you can wait until you have collected all the other evidence from witnesses, documents and other sources and then put all the contradictory evidence to the respondent after their first interview. Taking the latter approach gives you an additional opportunity to check where contradiction actually exists, what matters will be relevant to your conclusions and what may be left out as irrelevant. In our experience, it is best practice to separate the first interview, where you collect the parties’ own versions of events, and the follow-up interview where you ask them to respond to other contradictory evidence. How Contradictory evidence may be put to parties either in an interview, by telephone or in writing. If you are providing the contradictory evidence after your first interview with a party, it is usually most efficient to provide the evidence in writing and request the responses in writing, but you may wish to observe the party’s response to the contradictory evidence in person, particularly if their credibility is at issue. Their first reaction to contradictory evidence is often very telling, both in terms of their emotions and the substantive response that they provide. If they have provided untruthful evidence in the first interview, they must now come up with another fabrication in real time to explain this evidence — in doing so, they may introduce inconsistencies or implausibility into their account. This possibility means that observing a party’s response to contradictory evidence in real time is useful in assessing their credibility. Further, some parties may not be able to participate as easily in writing, or may prefer to respond in a further interview, over the telephone or via Skype. As investigator, you can decide what process is appropriate in the circumstances. It is prudent to treat the complainant and the respondent in the same way, so whatever process you select should be applied to both, in so far as it is practical to do so. If you do treat the parties differently, ensure that you have a valid reason for doing so, for example, because one party lives at a remote location, or a party is acting on legal advice in a matter that has been reported to police. Some contradictory evidence can be confronting or require time to respond to, such as detailed documents or a strong denial of a party’s claims involving sensitive subject-matter. If you decide to put contradictory evidence to a party in an interview and invite their response, tell the party that they may take

a break, or can respond later or in writing if they need time to prepare their response to the material you have just put to them. Remember that your primary goal is to provide the party with a procedurally fair opportunity to comment on evidence which contradicts their version of events. Depending on the nature of the evidence, the party may need some time to respond, and it may be procedurally unfair to insist on an immediate response during an interview. You can still achieve your secondary goal of testing the evidence and determining who is telling the truth, by noting how they respond to the contradictory evidence when it is put to them, even if you also provide them with more time to prepare a response. To whom Both the complainant and respondent should have an opportunity to respond to contradictory evidence that you may rely upon. It is unusual to put contradictory evidence to a witness, in addition to the respondent or complainant. Sometimes this is required where a key witness has given you evidence which is critical to your decisionmaking, and that evidence is incongruent with other evidence, and you suspect the witness is either lying or mistaken. The witness may withdraw their evidence or clarify what they meant in a way that explains the inconsistency and assists you to make sense of the evidence collected.

¶16.4 Communicating the contradictory evidence If the evidence is to be put to the party in writing, it should be marked “Strictly Private and Confidential”. Before sending the evidence in writing, it is a good idea to first ask the party for a confidential email address or mailing address. The covering letter or email might state: “Some of the evidence that I have collected in this case was not consistent with your evidence. I have set out that evidence below to give you the opportunity to respond to it, should you wish to do so. If you would like to provide any comments on the evidence below, you can do so in writing, or in an interview, or over the telephone to me, on or before [date]. If you will require more time to consider and respond to this evidence, please let me know. This evidence is provided for the purposes of this workplace investigation only and is strictly confidential.” If you seek a party’s response to contradictory evidence in an interview, the following explanation at the start of the interview (tailored as appropriate for your organisation’s culture and context), explains this part of the process: “The main purpose of this interview is to provide you with an opportunity to respond to any contradictory evidence from participants in this investigation. Contradictory evidence is evidence I have collected that is not consistent with your evidence. Providing you with an opportunity to respond to contradictory evidence is an important part of the investigation process. I will be putting that contradictory evidence to you and inviting your comment. I may also ask some questions for you, to clarify your evidence and the allegations/responses you have made. If you need more time to consider and respond to the contradictory evidence I ask you about today, please let me know and I will allow you to take a break to consider the evidence and your response.” Template documents and correspondence including the text above are available for complimentary download at www.worklogic.com.au/downloads. Describing the contradictory evidence It can be difficult to decide what parts of a transcript or documents should be put to a party for their comment and whether it can be summarised to streamline the process. As a rule of thumb, provide as much detail about the contradictory evidence as the party would need to be able to respond to it. You can provide a full copy of each document (such as a copy of an email that a party has denied sending), or an excerpt. You can provide a section of transcript from an interview, or a summary of that evidence where none of the meaning is lost in that summary. As long as the contradictory evidence you provide is sufficiently clear to the party and contains all the details that you may take into account in

making your findings of fact, and it is clear what allegation that evidence relates to, it will be adequate to give the party a fair opportunity to respond. Here are some examples of descriptions of contradictory evidence collected from oral interviews and documents that you could put to a party for response: • [in writing] “You have told me that your access to the database was cancelled in July, as part of the review of IT delegations and access rights. I have interviewed the Chief Information Officer, Diana Latif, who told me that the change in access rights was only put into effect in September. Do you have any comment on that?” • [in an interview] “In the course of asking questions of Fatima about Allegation 1 — that you removed a box of personal items from her office despite her objection — Fatima told me that she took a photo with her mobile phone of you leaving her office on that day, carrying a box. She provided me with this digital photo [show copy of photo]. Can I ask for your response to that?” Managing emotional responses to contradictory evidence The complainant and the respondent may proceed through most of the investigation without being aware that any of the evidence you are collecting contradicts their version of events. The request or direction that you have made about the confidentiality of the process will make this likely, as the parties should not be talking to the witnesses about the allegations or the investigation’s progress. Be aware that seeing the contradictory evidence stage of the investigation can be very upsetting for the parties. This may be the first time they hear that their colleagues have contradicted their version of events, and the first realisation that the case may not go their way. Also, the contradictory evidence they receive is, by definition, only the evidence that contradicts their version of events — it does not include any information that supports their version of events. As a result, it can feel to each party like the weight of all the evidence in the investigation is somehow going against them. They may feel, upon reading evidence from others which challenges their version of events, that you could not possibly believe their evidence and that you are going to find their complaint or defence to be groundless. Lastly, the parties will become aware that you are at the final stages of the investigation, and their emotions can start to run high. The possibility of disciplinary action (for the respondent), or the dismissal of the complaint (for the complainant), may be playing on their minds. They can feel increasingly powerless and fearful as the investigation draws to a close. Keep these perspectives in mind as you lead the parties through the contradictory evidence stage. At the same time, it is important not to soften or dilute the contradictory evidence presented to the parties. To do so would be inconsistent with procedural fairness, and will damage your ability to test the evidence. It could also lead to a perception that you have prematurely decided the outcome. Communicate clearly with the parties about this stage of the investigation, to maximise the likelihood that they will be able to contribute in a constructive, measured and logical way. Tell the parties that: • The contradictory evidence stage can be confronting because it covers only the evidence that contradicts their evidence. • The contradictory evidence provided is not a reflection of the findings that the investigator is going to make. It is simply an opportunity for the parties to address inconsistent evidence which the investigator may use in order to establish what happened. • The contradictory evidence is just one part of the overall evidence that the investigator is considering. • It is part of a fair process that parties are given an opportunity to address something others have said which contradicts their evidence. • They are not obliged to comment if they do not wish to. If you seek a response in writing, give the party a date by which they must respond: “If I do not hear from

you in response to the contradictory evidence by close of business on [date], I will draw conclusions on the evidence I have collected so far in this investigation and write my report”. Before the contradictory evidence is put to the parties, identify a person in the organisation who can check on the participants’ well-being. Inform that person that this step is occurring and encourage that person to support the participant at this time.

¶16.5 Managing delays and failure to respond to contradictory evidence If you anticipate that the party may delay responding to written contradictory evidence, set a deadline for their response, or schedule a second interview to ensure that this step is conducted in a timely way. If you provide the contradictory evidence in writing but you do not receive a response to contradictory evidence within the time provided, you can conclude your investigation without the party’s comments on contradictory evidence. This is because it is the opportunity to comment on any contradictory evidence which is necessary to ensure that the process is procedurally fair, not whether the party actually comments or not. Their response is voluntary. Do ensure that the opportunity to respond was, in fact, received by the party. If using email, request a “read receipt” on the email so that you know that the email has been opened. If using mail, use registered post. A follow-up telephone call is recommended if you receive no response. Manage delays in responding to contradictory evidence. Don’t let the respondent or complainant drag the investigation out so long that the integrity of the investigation and fairness to others is compromised. Ultimately, it is a subjective assessment of reasonableness in the circumstances (that only you can make) of how much time a party should be given to respond to contradictory evidence. If the party has a genuine need for a reasonable extension of time — for example due to illness, an overseas trip, carer’s responsibilities or intensive work commitments for a limited period — then this can be granted. Providing the party with alternative methods of giving their input may make it easier for them to respond promptly: in writing, in an interview, or over the telephone. If the party continues to delay without reason, give the party a deadline and inform them that you will proceed without their input if they do not respond by that date. Remind the delaying party that findings can still be made without their response to the contradictory evidence.

¶16.6 Collecting conflicting evidence: When to stop! Parties’ responses to contradictory evidence often contain new information, as they try to explain the inconsistencies and counter with more reasons as to why their account should be believed. You may find yourself wondering whether you will have to take that new evidence back to the other party, and then get stuck in a seemingly endless cycle of each party commenting on the other’s contradictory evidence! In reality, more than one opportunity to review contradictory evidence will rarely be necessary. If a party has key information about the allegations, your first interview with them should have revealed it. If they reveal something important in response to contradictory evidence, probe as to why they did not share this information with you in their first interview. In the rare case that fresh evidence does come to light that you are now going to rely upon to make a finding against the other person’s interest, you will need to put it to that party for their response as further contradictory evidence. Remember, however, that not every piece of contradictory evidence needs to be tested by putting it to the parties. Limit this process to the evidence that you will rely on to make findings.

¶16.7 Assessing responses to contradictory evidence

A party’s response to contradictory evidence is evidence in itself. When considering the parties’ responses to contradictory evidence, ask yourself three questions: 1. Is the response to contradictory evidence credible? 2. Is the response to contradictory evidence reliable? 3. If the response is credible and reliable, what does that mean about the credibility of the contradictory evidence that the party has commented on? For example, witness Deshawn gives evidence that he saw Jaime talking on her mobile telephone while driving a company vehicle. In response to that contradictory evidence from Deshawn, Jaime says she had lost her phone for a period of five days which included the day of the alleged incident, and she provides mobile telephone records which indicate the phone made no outgoing calls or SMSs for that five-day period. If you accept Jaime’s evidence, this might mean that Deshawn’s evidence is less credible. Assessing all the evidence — including the contradictory evidence and the parties’ responses to it — is a fundamental part of your analysis and decision-making. This is covered in the next chapter. Ensure that in your report you state that you have considered the responses to contradictory evidence. For example, you may make a comment along the following lines: “In relation to Allegation 3, that Helen talked on her mobile telephone while driving a company vehicle on 3 October, I confirm that Helen was given the opportunity to respond both to the allegations and to the evidence relied upon in making this finding, including contradictory evidence from witness Deshawn. I took into account her response to the contradictory evidence, and after consideration decided that … [explanation of why the response to contradictory evidence was not sufficient or was accepted and preferred].” You should also attach those responses (whether in writing, in an interview transcript or notes) to the report.

Checklist: Do I need to put this contradictory evidence to the parties for comment? □ Does the evidence contradict a key part of the complainant’s or the respondent’s evidence or their claimed version of events? □ Is the evidence likely to be used to make a finding of fact against a party? □ Is it necessary or helpful to put the evidence to the party, in order to test the accuracy of the evidence and the credibility of the witnesses? □ Could the party’s response assist in a meaningful way to weigh up the evidence you have collected?

If you have answered yes to any of these questions, you should put the evidence to that party for their response and expressly consider that response in your analysis. This will show how you have not only provided an opportunity to respond, but have also taken into account that response. Key points • Contradictory evidence is evidence that you have collected which contradicts what one of the parties has told you and which you are going to rely on to make findings of fact. • A procedurally fair investigation requires that you put contradictory evidence to the respondent before you make findings of fact against them. • Similarly, you must put any contradictory evidence to a complainant before relying on that evidence to conclude that the allegations are not proven. • This process ensures your investigation is procedurally fair, and will test the accuracy of the evidence and the credibility of the witnesses.

A case study — Yellow Duck Limited — Episode 8: A challenging interview

In the last days of the interview, you arrange to interview Sam again about new and contradictory evidence, including the content of the audio recording that Kim sent to you. There is also quite a lot of evidence that you are hoping Sam will clarify. You start the interview at 2 pm on a Friday. Again, Sam has not brought a support person, even though you have reminded him a couple of times of his ability to bring someone with him. In the interview, Sam appears tired and quite distracted, occasionally shifting in his seat and looking uncomfortable. He pauses many times, frowning while he considered your questions. You offer him a break twice, but he says “No it’s okay” and “Just keep going, I want to get this over with”, so you continue on with your questions. Right at the end of the interview, you ask him about the audio recording that Kim emailed to you. Sam becomes angry, leaps out of his seat and starts pacing the room, speaking very quickly and saying, “I have been set up. That recording is illegal. You can’t bug people, that’s secret service stuff. This is a set up.” You implore him to calm down. Sam seems very agitated and is edging towards the door. You stand up at the table, hold your hands up with your palms towards him, and say, “Please don't leave the room Sam. It's important that I hear your answer to the new material that Kim has sent to me. Please sit down”. The next day, Sam doesn’t come to work. Two days after that, the CEO receives a letter by email from a well-known plaintiff law firm, alleging that: • Sam has been subjected to false imprisonment by being “forced to remain in the meeting room, by a false assertion of legal authority by the investigator” for more than two hours • you yelled at Sam • you directed him to remain in the room, and you are more senior than him • these actions caused an exacerbation of Sam’s anxiety and other medical conditions, and • the organisation knew he suffered from anxiety as one of his medical conditions, so you have directly discriminated against him and also failed to accommodate his disability in your investigation process. Attached to the email from the lawyer is a medical certificate which states that Sam is unfit for work for 30 days, due to “Anxiety from physical altercation. Unsafe workplace.” You believe that your tone of voice in the interview was firm but calm. You know that you were feeling stressed by Sam’s highly agitated behaviour and by him pacing up and down in the interview. While your chair was closer to the door than Sam was, you don’t believe that you blocked his exit. 1. In brief, how do you describe your actions in the interview room, for the purpose of the organisation’s response to Sam’s lawyer’s letter? 2. If you did not know that Sam suffers from anxiety, how do you respond to the last point in the letter? 3. Assuming that Sam does not return to work after this point, and that you were able to ask him all of your questions before he left the interview, what do you write in your investigation report about this interview and Sam’s lawyer’s letter?

Chapter 17: Analysis of the Evidence The standard of proof

¶17.1

How to assess the evidence

¶17.2

Assessing evidence of similar prior incidents (“similar fact”) ¶17.3 Assessing hearsay evidence

¶17.4

Assessing corroborative evidence

¶17.5

Deciding between conflicting versions of events

¶17.6

Editorial information Throughout the investigation, as you gather each piece of evidence, you will consider, assess and interpret it, and compare it with other facts you have established. Once assembled, you can critically examine all the evidence you have collected from various sources, analyse its weight and credibility and start to form conclusions about the claims of the parties. As the investigator, you are not bound by legal rules of evidence set out in legislation and case law. The legal rules of evidence are complex and a detailed analysis of those rules is beyond the scope of this book. The rules do, however, provide some useful principles and tests you can apply in a workplace investigation to analyse your evidence, which will make your decision-making more robust and reliable. This chapter explains how to apply these principles.

¶17.1 The standard of proof “Balance of probabilities” In reaching your conclusions in a workplace investigation, findings of fact are made on the civil standard of proof — the balance of probabilities. Your findings do not need to be based on the higher evidentiary burden of “beyond reasonable doubt” that is used in criminal trials. “Balance of probabilities” means that in order for you to make a finding that a fact is “proven”, you need to be satisfied that it is more likely than not that the alleged behaviour occurred. In other words, all the evidence that you have gathered, when weighed up, tips the scales one way or the other. For example, supposing you had collected evidence from the complainant that the respondent had spoken to her in a sexually provocative way and the evidence from the respondent was a total denial that the alleged behaviour occurred. If both parties presented in an equally credible way and you had no witnesses or other evidence to “tip the scales” in favour of one version of events over the other, the weight of the evidence is 50/50 each way. In such a case, the allegation must be found “not proven”, because the evidence collected is of insufficient weight to tip the scales towards “proven”. If, however, a witness had also observed the alleged behaviour and provided credible evidence to that effect, the allegation would be proven. The Briginshaw rule and the balance of probabilities The balance of probabilities is not a demanding or overly high standard when compared to the criminal standard of proof, which requires proof “beyond reasonable doubt”. As such, decisions made “on the balance of probabilities” can be open to error. Where the allegations are very serious, such as those that may lead to termination of employment, legal cases indicate that the strength of the evidence necessary to prove a fact, on the balance of probabilities, will vary according to how serious the outcome may be for the employee. This can be confusing as there is no “third” standard of proof. For the purposes of a workplace investigation, the rule created in Briginshaw v Briginshaw (1938) 60 CLR 336 requires the following:

where the allegations are serious, and therefore may lead to a serious outcome for the employee, the decision-maker should ensure that the evidence relied upon in weighing up the balance of probabilities is of a high probative value, and avoid relying on “inexact proofs, indefinite testimony or indirect inferences” (to quote the Briginshaw case at p 362). In a judgment of the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others [1992] HCA 66; (1992) 110 ALR 449, their Honours Mason CJ, Brennan, Deane, Toohey and Gaudron JJ said at 449–450: “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved’.” In practice, it is not always clear how and when this rule applies in workplace investigations. In our experience: • Where the proven behaviour is not an obvious case for dismissal, at the time of writing the investigation report, it can be difficult to know if this rule should be applied or not. If the investigator is not the decision-maker about discipline, and has not been told about prior inappropriate behaviours by the employee or any “final warning” that might already have been issued (to protect the investigator’s impartiality), it will not always be apparent to the investigator whether the findings of fact being made are likely to lead to a serious outcome for the employee. • The Briginshaw rule, and the cases that have applied it since, do not make clear how serious the conduct needs to be for the rule to apply.1 Does it only apply when termination of employment is a possibility? Are other disciplinary outcomes also considered to be serious enough to invoke the rule? • The rule appears to imply that, in cases where the outcome is not serious, an investigator can use evidence of low probative value and “inexact proofs, indefinite testimony or indirect inferences” to make findings of fact. In our view, this is risky and potentially unfair to the respondent; in all cases, to reach robust findings and to ensure the integrity of the investigation process, you should rely on clear testimony, direct evidence and proof that is both reliable and relevant. A best practice (and lower risk) approach is to apply a high standard of proof in every case, relying on evidence that is credible, reliable and relevant to the allegations. Case examples Application of Briginshaw is contained in two NSW cases from 2006. In Rai, Lata, Rodriguez & Khan v The Hammond Care Group [2006] NSWIRC 1106, Commissioner McLeay held that the respondent had not met the legal burden to prove serious misconduct by any of the applicants, with reference to the evidentiary threshold set out in Briginshaw. It was noted that the actual allegations against the four applicants were not sufficiently particularised or fact-checked as they should have been. By failing to provide particulars, the respondent had denied the applicants the opportunity to be heard. McLeay C also noted that the investigation was “inadequate” and not “careful or proper” because: • the initial complaints were flawed • the investigator had not called key witnesses • some evidence was uncertain and unreliable, exaggerated or vague with respect to dates and events, some of which was later

changed or withdrawn, • the investigator conducted the investigation with a “closed mind” as to the likely outcome. In Trotter v Astrazeneca Pty Ltd [2006] NSWIRC 1130, the applicant claimed she had been unfairly dismissed. The respondent had summarily dismissed her for dishonesty on the basis that the applicant’s sales and appointment records did not match her mobile phone records. Commissioner Stanton found that the applicant had not been afforded procedural fairness and that the respondent’s investigation was “flawed in a number of respects”. In considering the evidence, it was noted that the investigator had not provided the applicant with copies of her mobile phone records prior to their meeting, and by failing to do so, he had not provided the applicant with any opportunity to participate in the investigation or to provide any evidence of mitigating circumstances. The respondent had also failed to provide the applicant with enough time and a proper opportunity to receive advice and prepare her best case to defend the allegations. The investigator was found to have relied upon assumptions rather than facts, and conflict between the investigator and the applicant may have impacted his judgment. The Commissioner commented: “In my view, the more serious the allegation against an employee, the more detailed the employer's investigation should be, and should include a search for exculpatory evidence”.2

Footnotes 1

De Plevitz, L., (2003). “The Briginshaw ‘Standard of Proof’ in Anti-discrimination law: Pointing with a wavering finger” Melbourne University Law Review 13 list the types of cases where the Briginshaw principal has been applied in relation to allegations of sexual misconduct: child sexual abuse; contested wills where one party who stood to inherit under the will is alleged to have murdered the deceased; gross medical negligence; fraud; and, serious and wilful misconduct warranting dismissal from employment.

2

See also Kumari v Metro Trains Melbourne [2017] FWC 605; White v State of Queensland [2017] QIRC 041; J Sharari v Railcorp [2006] AIRC 612.

¶17.2 How to assess the evidence By this stage in your investigation, you will have collected evidence of different types. You may have interviews, documents, objects, surveillance footage, phone records and various other sorts of evidence, many of which will conflict with each other. The evidence seems to tell different stories about what has occurred — how do you know what is “more likely than not” to have occurred? How do you assess what evidence you should rely on, and what evidence you should discount or ignore altogether? There are four key questions you can ask yourself about the evidence you have collected, to assess the strength of that evidence and how much weight you should give it, as you decide whether or not each allegation is proven on the balance of probabilities. You certainly needn’t consider each question for every piece of evidence, but they provide a useful guide as you weigh up conflicting accounts. 1. To what extent is this evidence relevant? Relevance is discussed in Chapter 11. In the law of evidence, relevance is a fundamental requirement for whether it should be taken into account by the decision-maker. The legal principle is that evidence that is relevant to a fact in issue is admissible (subject to any other rule of evidence), and evidence that is not relevant is inadmissible: s 56 of the Evidence Act 1995 (Cth). Evidence is relevant when it could, if accepted, rationally affect the assessment of the probability of a fact in issue: s 55 of the Evidence Act 1995 (Cth), Smith v The Queen (2001) 206 CLR 650; 75 ALJR 1398. A “fact in issue” means the factual elements of the allegations and of any defence that the respondent has made. Evidence can also be relevant if it relates to the credibility of a witness, the admissibility of other evidence or a failure to adduce evidence: s 55(2), Evidence Act 1995 (Cth). 2. To what extent is this evidence probative? The probative value of the evidence is the extent to which it tends to persuade or dissuade you of the truth of an allegation. Ask yourself: does this evidence really help me to decide whether the respondent engaged in the alleged conduct in this case? Is it persuasive, one way or the other?

Here’s an example. Aziza is accused of sabotaging the company’s water recycling unit, which was installed to minimise its environmental impact. As part of his denial of the allegations, Aziza strongly expresses to you his belief in combatting climate change and shows you his Greenpeace membership card. Aziza’s environmental beliefs are probably relevant, but does this evidence really go to disprove his alleged sabotage of the unit? Not strongly. In criminal cases, generally the court must refuse to admit evidence adduced by the prosecutor if its probative value (its capacity to prove something) is outweighed by the danger of unfair prejudice to the defendant (its damage to the jury’s view of the defendant): see eg s 137 of the Evidence Act 1995 (Cth). The quality and weight of the evidence is relevant when assessing its probative value: Dupas v The Queen [2012] VSCA 328. 3. Is this evidence overly prejudicial? Evidence may be too “prejudicial” to take into account fairly if the investigator might use it to make a decision on a basis that is improper, emotional and logically unconnected with the issues in the case. Unfairly prejudicial evidence “appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action which may cause the fact-finder to base his decisions on something other than the established proposition of the case”.3 In effect, overly prejudicial evidence creates a risk that you are more likely to be unfairly biased against the respondent. Prejudicial evidence is not common in workplace investigations, except in relation to similar fact evidence, which is addressed below. 4. How much weight should I give to this evidence? If the evidence you are considering is relevant, probative and not overly prejudicial, you can now consider how much weight you should give to that evidence, compared with all the other evidence you have collected, as you are making a finding of fact. This approach helps you decide where the balance of all the evidence lies — the measure of proof for the allegation and the measure of proof against the allegation — which will determine whether that allegation is proven or not. In a workplace investigation, you should give no weight to evidence that is: • illegally obtained, or • not credible. You should give very little weight to evidence that is: • speculative or based on assumptions • poorly recalled or incomplete • inconsistent or implausible in some way, or • flimsy. If you rely on this sort of evidence at all, ensure that there is corroborative evidence which is more credible and reliable. You may give some weight to: • similar fact evidence, and • hearsay evidence. Both of which are discussed in detail below. These two sorts of evidence have particular issues to be aware of before relying upon them. You will give most weight to evidence that is relevant, probative, credible and reliable, which is usually: • from a direct witness

• complete and consistent • from a reliable secondary source such as documents, emails, text messages or CCTV footage, and/or • corroborated by other credible sources of evidence. In your investigation, the different pieces of evidence you have collected will each have different weight. Your task is to determine the weight of the evidence collected, then determine where the balance of the evidence lies. Analysing the evidence: A worked example Let’s consider an example. Assume for a moment you have been provided with three pieces of credible evidence in relation to an argument that Carmela alleges occurred, in which Diego allegedly yelled and used intimidating body language: • a hearsay account (“Carmela told me that day that she had a nasty run-in with Diego. She looked really shaken.”) • a direct witness account (“I was there. They discussed the issue but they seemed to agree on everything, and Diego certainly didn’t act inappropriately”), and • evidence of a similar behaviour occurring in the past (“Diego was pretty aggressive when I disagreed with him three months ago”). The respondent, Diego, denies the alleged argument occurred at all. At this stage, if you were to rank the weight of these pieces of evidence from 1 (most weight) to 3 (least weight), on the basis of the nature of the evidence they would be ranked as follows: 1. Direct, eye witness evidence 2. Hearsay evidence 3. Similar fact evidence. The direct, eye witness evidence, which supports Diego’s denial of the allegation but contradicts the hearsay and similar fact evidence (which support Carmela’s allegation), will usually outweigh the hearsay and similar fact evidence, which is inherently less direct, reliable and convincing. As the eye witness evidence supports Diego’s denial of the allegation, the weight of the evidence therefore supports a finding that the allegation is not proven, on the balance of probabilities. If, however, in your interviews with the direct eye witness, he provided two different versions of events and then claimed he has no memory of the incident at all, you may assess this evidence to be low on credibility, and unreliable. You would then rank the weight of the evidence as follows: 1. Hearsay evidence 2. Similar fact evidence 3. Direct, eye witness evidence (which you have judged to be not credible). In this case, Carmela’s allegation is supported by hearsay evidence and similar fact evidence. Diego’s denial is only supported by a witness whose evidence is not credible. On the balance of probabilities, if the similar fact and hearsay evidence is credible and Diego and Carmel’s evidence is equally credible, the balance of the evidence tends towards supporting Carmela’s allegation and it would likely be proven. When you analyse the evidence to make your findings of fact, you should examine all the evidence you have collected that supports and contradicts the two parties’ versions of events. As above, consider the respective credibility and reliability of each piece of evidence, and apply the appropriate amount of weight. (You might not do this in such a formal way and “rank” the evidence, but apply the principles all the

same.) You can then conclude where the weight of the evidence lies and make your findings of fact, on the balance of probabilities. Footnotes 3

Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), p 644; cited in Australian Law Reform Commission, Uniform Evidence Law, ALRC Report 102 (2006), p 559.

¶17.3 Assessing evidence of similar prior incidents (“similar fact”) Sometimes a participant in an investigation suggests that the respondent’s past misdemeanours are relevant to the current allegations. For example, “Of course he took the car. He’s been charged by the cops for auto theft before.” This type of evidence is called “similar fact” evidence. It may arise from a number of possible sources during your investigation: the organisation, your own knowledge of the respondent’s behaviours, the complainant or witnesses. Evidence that the respondent has behaved in the same way on another occasion is not evidence about the allegation being investigated, so it is not evidence that the respondent did in fact act that way on the occasion referred to in the allegation. As such, it may be considered to be irrelevant. Where the behaviour is distinctive, the degree of relevance will alter. For example, say the allegation in question is that the respondent greeted the complainant in the morning with an unusual turn of phrase, “G’day scumbag”. If the respondent denies he has ever used the word “scumbag” in the office, evidence from witnesses that they have heard him use that word on other occasions may have some weight in deciding whether the respondent was more likely than not to have also said it to the complainant as alleged — partly because the similar fact evidence is potentially damaging to the credibility of the respondent’s evidence. Should similar fact evidence be taken into account? The issue you face as the investigator is deciding whether this material should be explored further, and whether it should be taken into account at all. Similar fact evidence has traditionally been excluded in criminal trials — even if it is deemed to be relevant — because it is considered unfairly prejudicial, that is, it tends to favour preconceived ideas about the respondent’s guilt. Here is a systematic way to approach similar fact evidence. → What is the evidence being offered? If similar fact evidence is offered to you, explore the evidence a little. You need to understand the relevance of the evidence, if any, in order to decide whether or not to include it in your analysis. To help you to assess the similar fact evidence, ask the witness, “How is this relevant to the allegations that Jackie has made against Aniello?”, for example. The witness may give you a more detailed explanation. You can then decide about the relevance, the probative value and the prejudicial nature of the evidence in question. Take care when a witness provides you with information about past misdemeanours to check whether the information is reliable at all. For example, a statement that the respondent is “sleazy” or “does this sort of thing all the time” should not be given much weight in your analysis, as it is untested, unspecific and unreliable. Similarly, gossip, hearsay and generalised views of a person’s poor reputation are virtually worthless. Not only is evidence like this unreliable, it is also likely to be misleading and possibly even scurrilous. → How is it relevant (if at all) to the allegation in question? Consider whether the similar fact evidence is relevant to the allegations that you are investigating. For example, you may discover that two years ago the respondent was caught stealing products from your workplace. It would not be appropriate to rely on this information at all, if the current allegation being investigated is of sexual harassment. Information about an unrelated incident, or that the respondent is of

“bad character”, has little relevance or probative weight in the circumstances. The respondent cannot fairly be judged to be more likely to have engaged in sexual harassment because of their past history of theft. The evidence about the respondent’s past theft might be more about the witnesses’ assumptions or prejudices, or their trying to influence the investigation in a particular direction. On the other hand, if the respondent was found to have sexually harassed a colleague two years ago in a very similar manner to the current allegations, this information may be considered to be relevant and probative. This may outweigh the prejudicial effect and you may decide to give it some weight. On its own, however, such evidence would not be enough to prove that the sexual harassment has occurred in the current case. Case example In Robinson v Goodman [2013] FCA 893, the alleged sexual harassment by Mr Goodman included asking Ms Robinson to pose as his wife while at work, using her as a model for photography sessions, grabbing her bottom and commenting on her body. Ms Robinson’s lawyers argued evidence from two other women who had allegedly experienced similar conduct by Mr Goodman should be admitted, in order to show that he had a tendency or a propensity to act in the way alleged by Ms Robinson. The judge decided to admit some of the similar fact evidence because it was “important or of consequence” and was relevant to the probability of the facts in issue in the case, namely whether the alleged sexual harassment occurred or not, and whether the admitted conduct was of a sexual nature. That evidence showed Mr Goodman had a propensity to act in a particular way towards his female employees and to say particular things. The judge also noted that it is not necessary that the similar fact evidence has a “striking similarity” or “unusual features” to be admissible. If the overall circumstances are sufficiently similar, the similar fact evidence may be important enough to have significant probative value and be admissible.

→ Is it probative? As you will recall, the probative value of the evidence is the extent to which it tends to persuade you of the truth of an allegation. In relation to similar fact evidence, the question is: does this evidence of past misdemeanours really help me to decide whether the respondent engaged in the alleged conduct in this case? → Is it overly prejudicial? In a workplace investigation, taking into account past misconduct can make you more likely to be unfairly biased against the respondent. There is also a risk that the similar fact evidence will: • be used to draw the conclusion that the respondent is the kind of person likely to have engaged in the alleged conduct (a generalised moral judgment like this is not a fair basis upon which to make findings against anyone) • because of its inflammatory nature, distract you from deciding about the alleged conduct in a reasoned way and from focusing on more reliable evidence about the allegations you are investigating • confuse you about what evidence is strictly relevant to the alleged conduct, and • not be possible for the respondent to respond to, because of the passage of time or the lack of detail about the similar fact. Be aware of this risk as you consider whether or not to take into account similar fact evidence. If the similar fact evidence is relevant, decide whether its probative value outweighs its prejudicial effect. You should never give similar fact evidence as much weight as evidence that is specifically about the allegations you are investigating, because past behaviour is not necessarily a predictor of future behaviour. The appropriate test is whether the probative value of the evidence outweighs its prejudicial effect. Put another way, does this evidence do less damage to the respondent than it does help you to make the right decision about the alleged conduct?

If you do intend to take into account any past misconduct in your analysis and decision-making, you must put the similar fact evidence to the respondent for comment as part of the contradictory evidence process, even though you are not making any findings of fact about whether those previous behaviours occurred or not. Explain in your report the basis of your decision to take into account similar fact evidence. If you are provided with evidence of past similar conduct and you decide not to take it into account, make it abundantly clear that you have not considered that evidence or been swayed by it in any way. In your report, state how the similar fact was obtained and why you decided not to take it into account, for example: “Evidence of past similar misconduct was offered unsolicited from Jacob but I do not consider it to be relevant, because the alleged past conduct is different in nature to the allegations being investigated by me. Further, Jacob’s evidence about the past similar misconduct was unproven and vague, therefore not very reliable and potentially prejudicial to the respondent. I did not take Jacob’s evidence into account in making any findings of fact.”

Checklist: Should similar fact evidence be taken into account? Work through this checklist to determine if the evidence should be considered in your analysis. You should be able to tick every box for the similar fact evidence to be taken into account. □ Is the similar fact evidence relevant to the allegations being investigated? (relevant) □ Does the similar fact evidence really help me to know whether the respondent behaved as alleged or not, and in the way alleged? (probative) □ Is the evidence of good quality? That is, it should show more than a vague tendency, a coincidence of no real significance or be a personal opinion about the respondent’s character. (reliable) □ Does this evidence do less damage to the respondent than it does help me to make the right decision about the alleged conduct? (not overly prejudicial) □ Did I give the respondent an opportunity to respond to that evidence, before I took it into account?

Due to the potential risks associated with this sort of evidence, it is always preferable to obtain direct evidence about the allegations at hand.

¶17.4 Assessing hearsay evidence Hearsay evidence is evidence of those who tell you about what they have heard from others, where they did not personally witness the alleged event themselves. An example is a witness telling you, “In the meeting Stephen was really uncomfortable about Prisha excluding him from key decision-making”, when the witness did not attend the meeting themselves, but instead is recounting Stephen’s description of his own experience of the meeting after it occurred. Most hearsay evidence is mixed with direct evidence. For instance, a witness, Max, tells you, “I wasn’t in the meeting but straight after the meeting, Susan came to her workstation in a rather agitated fashion and was crying. I asked her what was wrong and she said that Gloria had accused her of failing to meet budget and that she was to blame for the whole team’s poor performance and that Gloria was cancelling her previously approved leave.” In this short statement, Max has provided several sorts of evidence that may be reliable and relevant in establishing what occurred: • direct evidence about what Susan said to him after the meeting (which is evidence of what Susan said to Max, but not of what Susan actually experienced) • direct evidence of what Max observed to be the impact of the alleged behaviour (Susan being upset) • contemporaneous hearsay evidence (what Susan told him had just happened to her), and

• evidence that corroborates Susan’s evidence that she told Max about the meeting immediately after it occurred. Max, cannot, however, give you direct evidence about what happened in the meeting — he can’t, because he was not there. In this example: • Max’s evidence is not evidence of what actually happened, it is just evidence of what Susan said when she came out of the meeting. • There is a possibility that Susan was inaccurate in repeating to Max what was said. • There is a possibility that Susan fabricated or exaggerated what was said. • The best evidence would be from eyewitnesses who were actually in the meeting. In court, hearsay evidence is not always admissible. If an event is to be proven, courts will prefer direct evidence to be provided by a witness who personally witnessed the alleged event. Hearsay evidence of another person’s statements about an event is admissible in court only for the purpose of proving that the words were said, but not in order to prove that the statement was true.4 As a workplace investigator, even though you do not have to apply legal rules strictly in your analysis, you should identify any hearsay evidence that you have collected as hearsay evidence, and weight it appropriately. Your analysis might include consideration of: • what fact the hearsay evidence appears to support (eg that the respondent was angry immediately after the meeting, but not that she spoke angrily in the meeting, if the hearsay witness was not present in the meeting) • whether the hearsay evidence is credible • how useful the hearsay evidence really is, in the circumstances of all the other evidence you have collected • the degree of consistency of the hearsay evidence with other evidence you have obtained (eg it may impact on the credibility of other witness evidence you have collected), and • comments received from the parties about that hearsay evidence as part of the contradictory evidence phase. This analysis will assist you to identify the amount of weight you will give to hearsay evidence. Keep in mind that hearsay evidence, while useful, is not strong evidence of what in fact occurred (although it deserves more weight than similar fact evidence). Accordingly, wherever possible you should seek firstly direct evidence about the alleged events. If hearsay is the only evidence available apart from the complainant and respondent, be aware of its limitations. Of course, all hearsay evidence, if relied on in making your findings of fact, must first be put to the parties for response, to ensure that your process is procedurally fair. Footnotes 4

Subramaniam v Public Prosecutor [1956] 1 WLR 965.

¶17.5 Assessing corroborative evidence The reality of workplace investigations is that evidence is rarely perfectly reliable and credible. Data can

be corrupted and edited, documents forged or destroyed, and human memory is notoriously unreliable. Memories are not virtual recordings to be played back perfectly at will. Witnesses’ recollections of events can be poor, selective, distorted, affected by emotion or unconscious bias, or incomplete. Due to the vagaries of every individual piece of evidence, the suite of evidence you collect over the course of the investigation will together form a picture of what happened. Many of the credibility flaws in the types of evidence discussed above may be overcome if there is reliable and credible evidence which corroborates evidence that is otherwise flawed. Corroboration simply means that one piece of evidence is confirmed either in full or in part by other evidence that you have obtained. A piece of evidence will be more reliable if it is corroborated by other evidence you collect. If one of the witnesses tells a substantially similar story to the complainant, this would constitute corroborative evidence and you can rely on it in your analysis to support the complainant’s version of events. Evidence that might otherwise be treated as unreliable, because it is hearsay, somewhat vague, inconsistent or incomplete, may be relied upon with more confidence when it is corroborated by a reliable source. If you are concerned about the reliability of some evidence provided — for example, you suspect that a handwritten diary note has been prepared well after the event and may have been embellished or fabricated — seek another type of evidence about the same event. This may or may not corroborate that version of events described in the diary note. Corroborative evidence from a witness or a reliable secondary source can assist in tipping the balance one way or another, as you consider whether an allegation is proven. Take care, however, to evaluate the corroborating evidence as you would with any other evidence. It can be tempting to give it more weight than it deserves when there are many competing versions of events and you are finding it difficult to determine what occurred. Take particular care when it comes from a friend of the party or if there is any suggestion of collusion. As with any other sort of evidence, maintain a healthy scepticism and assess its weight, its credibility, and its reliability, before relying upon it to prove or disprove an allegation.

¶17.6 Deciding between conflicting versions of events In a workplace investigation, where the allegations of fact are denied, you will have two conflicting accounts of what occurred. After interviews you may also have other direct witnesses who have provided clearly corroborating evidence, partially corroborating evidence, inconsistent versions, and outright contradictory versions of events. The other direct evidence you collect — documents, correspondence, evidence from smartphone and computers, news articles, and so on — may indicate a different set of facts altogether! Sometimes as an investigator, the more evidence you gather, the more unclear the story seems to become. Your task is then to consider all the evidence and decide whether the allegations of fact are proven or not. Remember, you do not need to determine definitively what actually happened. Your task is to make a decision about the elements of the complainant’s version of events, on the balance of probabilities. This involves a careful assessment of all the evidence, considered together, including: • how reliable, clear, direct, convincing and logical the evidence of each party is • who was best able to remember and recount events clearly • who appeared to have told you the truth, in terms of the internal consistency and logic of their own evidence • who appeared to be biased or to have had an intention or motive to mislead you • whether their phrasing and choice of answers indicated that they wanted to sway you in a particular way (did they answer your questions directly, or did they include emotive, exaggerated and interpretative observations or arguments, for example), and • what elements of the parties’ evidence are supported or contradicted by other evidence you have

collected. In a workplace investigation, you will often need to examine oral evidence that is flawed by poor recollections, possible lying or exaggeration, inconsistencies and evidence of motive to bring a false complaint. How to analyse this sort of evidence and assess its credibility and usefulness is explored in more detail below. Poor recollections Sometimes, through no fault of their own, witnesses’ recollections are poor. Consider the two examples below: Example 1: “I wouldn’t have thought that Guy would have yelled. He is usually pretty calm, I mean, I can’t remember anything particular happening at the meeting. They are all pretty run-of-the-mill really.” Example 2: “I remember that meeting because I took the minutes. It was uneventful apart from a vigorous discussion about who was responsible for the project delays. I remember that during the meeting Guy raised his voice several times. It got a bit heated, with many of the attendees also raising their voice and more than one person talking at once. I was trying to take the minutes and it was quite difficult to follow at times. There was more than one discussion happening at once. I remember at one point Guy shouted over the top of people, ‘Can we all just calm down and speak one at a time,’ which I was glad about because my notes were becoming a bit of a mess! Later Imani interrupted someone again, and Guy got quite cross. He said, ‘Imani, can let you him speak,’ or something like that.” In the above case, you might decide that the first witness is not credible because of their poor recollection and their evidence is mere speculation. This does not mean the first witness is untrustworthy but simply that their recollection of the events is poor. The second witness has provided far more detail, and in addition they have described a good reason for why they were paying attention: taking the minutes. Poor memory or a poor ability to describe one’s recollection can relate to the passage of time, psychological illness, the age of the witness and how significant the event was for the witness at the time. Where it becomes apparent during interview that they have poor or patchy recollection generally, the evidence may not be credible and may be given much less weight in your analysis than the evidence obtained from a witness who can relate the events clearly. Deceit, lies and mistaken beliefs During your analysis of the evidence, inconsistencies in evidence or a witness’ presentation at interview might lead you to suspect that the witness has lied or has been less than forthcoming with key information. If you doubt the credibility of one of the participants, during your analysis think about what has led you to think this way. A witness’ credibility can be affected by apparent inconsistencies or changing accounts of events given to you during an interview, or by the level of confidence they have in their recollection of events, as indicated by the language they use. Compare these two accounts: “I wouldn’t have thought Shirmaine would have yelled at a regular team meeting. I mean, she would have no reason to get upset”, versus, “I have been to every team meeting so far this year. Shirmaine has never yelled in any of those meetings. I would remember if she had, as she is usually very calm”. On the other hand, be careful not to judge the credibility of a witness’ evidence on the basis of uninformed assumptions about how a credible person should present. You might guess that a witness’ evidence is less credible because they present as less confident, more nervous, uncomfortable to answer questions directly, using unusual turns of phrase, or describing events in a disjointed and non-chronological way. Be aware of your own assumptions about what makes a person credible, which may well be false. Keep in mind that participants in investigations experience high emotion, and everyone presents differently, particularly when talking with people in positions of authority or of different cultural backgrounds, or when that witness has experienced trauma (see above at page 171). If a witness tells you a version of events which is not consistent with other evidence you have collected, it may be useful to consider the relationships of the parties and what motive the witness may have had for not telling you the truth or the whole story. Conversely, if you notice overly similar accounts being given, there may have been collaboration between

witnesses. If witnesses have discussed the matters being investigated prior to their interviews, their evidence will often be less credible. This is because those discussions may have influenced the witness to some extent, and the witness may no longer clearly recollect events independently from what others have said. See also Chapter 14 for guidance on detecting lying in interviews. Where a witness has been untruthful you can give less weight to some or all of their evidence. It is not necessary in a workplace investigation to reach a conclusion that a person is a “liar”. The fact that a person has told you a version of events that is not proven in the investigation does not make them a liar about everything they say, and such a conclusion by the investigator is unnecessary in order to make your findings of fact about the allegations. Making unnecessary conclusions outside of the investigation’s scope can raise questions about your impartiality. It is better to carefully analyse the evidence, and state that you prefer the evidence of the other party because it is consistent with weight of the evidence collected, on the balance of probabilities. By contrast, a witness who is very confident in what they are telling you is not necessarily presenting you with high quality, reliable evidence. Some people hold mistaken beliefs. Others are convinced of their own understanding or interpretation of what they have witnessed, yet they have based it on few very real observations. As author Daniel Kahneman observed in Thinking, Fast and Slow: “Confidence is a feeling, which reflects the coherence of the information and the cognitive ease of processing it. It is wise to take admissions of uncertainty seriously, but declarations of high confidence mainly tell you that an individual has constructed a coherent story in his mind, not necessarily that the story is true.” Case example In Wilson v Anglo Coal (Moranbah North Management) Pty Ltd T/A Anglo American [2017] FWC 4386, the internal investigator had placed particular weight on the respondent’s facial expressions and demeanour when later making findings about the evidence obtained at interview. In the investigation report, the investigator commented that the respondent “froze” and looked “surprised and shocked” when initially asked for his response to an allegation, and that this was “inconsistent” with his later denial. As a result, she did not accept his account. Commissioner Spencer of the Fair Work Commission noted that the test in Briginshaw was “fundamentally relevant to this matter, where significant evidence has been led on issues of credibility” and where “the allegations are serious, and significant consequences flow from the findings”. Overall, it was found that there was not clear and cogent evidence to substantiate the evidence in question, and that relying on someone freezing at interview was “an inexact proof”.

Inconsistency If a witness has contradicted himself or herself, this inconsistency may be relied on in judging that person’s credibility and in making your findings of fact. You should also think about how significant the inconsistency is to the reliability of the evidence given. Depending on the allegations, minor inconsistencies about times or dates may be inconsequential and have no impact on the credibility of the witness. These may be explained by poor memory or lack of attention to detail. Other inconsistencies may be crucial. For example, say a respondent has told you they could not have been responsible for defacing the wall of the storage shed because they were at a full-day training program off-site. Later, they contradict their own evidence and say that they were at work that day at a staff meeting. This inconsistency raises a serious credibility issue. Test the inconsistent evidence with the respondent. You may decide that all of that evidence is unreliable and the respondent’s claimed basis for the denial is not accepted. Motive of the complainant A respondent’s disparagement of the complainant by questioning their motives, without other specific evidence about their honesty, is often just conjecture of a highly subjective nature. Criticisms of the complainant’s motives are usually designed to call into question the complainant’s credibility generally. There is dubious relevance to a respondent’s claim that the complaint has been made for an “ulterior motive”. For example, “The complainant is just bringing these allegations to cause me grief. He probably wanted the new role I just got but he didn’t get it, which is not surprising considering what a stickler he is

about every rule and regulation in this place …”. This evidence as to motive has no relevance if you are tasked with investigating, for example, whether the respondent has engaged in a long-term pattern of nepotism and given favourable shifts to his friends. Unless the “ulterior motive” evidence you have been given goes directly to the credibility of the complainant’s evidence, it is unlikely to be relevant to the allegations at hand. If someone makes an honest complaint about wrongdoing that occurred in the workplace, on the basis of a genuine belief in the alleged facts, they should not be denigrated for having raised concerns, no matter what motivated them. Relevant evidence as to motive may be, for example, “The complainant is trying to derail a legitimate performance-management process that we commenced just before the bullying allegations were lodged”, or, “The complainant and the respondent were in a previous relationship that has gone sour and now he is determined to make her life a misery.” These could put the legitimacy of the complainant’s claims and evidence in issue, because they are specific and grounded in a genuine belief that the complainant has lied for a particular ulterior motive. You will need to deal with this challenge as to the complainant’s credibility in your analysis. If you decide to consider that evidence, consider it carefully and base any inferences you draw on fact, not the witnesses’ opinions. As discussed in Chapter 16, if you do decide an alleged ulterior motive may reduce the credibility of the complainant, you should provide the complainant with an opportunity to respond. You may receive a very legitimate response. For example, the complainant may agree that they are being performance-managed and are not performing well but the poor performance is because of the sustained bullying campaign by the respondent, and this has left the complainant anxious, nervous to speak up and requiring extended periods of leave. If the evidence about motive suggests that the allegations are untrue or an abuse of process, this will be tested as you analyse and make decisions about the allegations themselves. It is not generally appropriate to make findings of fact about the complainant’s motivation in making a complaint about the respondent’s behaviour unless that is expressly part of the scope of the investigation. If there has possibly been an abuse of process or vexatious complaint, this can be addressed after the investigation into the respondent’s conduct has concluded. Poor credibility By this stage in your investigation, you will have: • taken into account any relevant biases you may have in relation to a party or a witness, including unconscious, anchoring or confirmation bias (see Chapter 5, Section 1) • used effective interviewing skills and techniques to ensure you have obtained relevant evidence and tested it during the interview, including asking open questions, and putting other evidence to the witness (see Chapter 13, Section 4) • considered in detail all the evidence given by the witness, including the language they used in interview and whether their evidence was internally consistent • taken into account that a person who has experienced trauma may present their evidence and recollections in different ways (see Chapter 7, Section 2) • applied relevant principles of detecting any potential lies or deception (see Chapter 14) • considered any motivation by the participant to falsify, exaggerate or embellish their evidence • avoided relying on your observations of an interviewee’s demeanour to make inappropriate comment on the credibility of their evidence (see Chapter 7, Section 2) • undertaken the contradictory evidence phase of the investigation, to test and understand the evidence further (see Chapter 16), and • considered the relative inherent plausibility of all the evidence in the circumstances, and the relevance and weight that should appropriately be given to any similar fact, character or hearsay evidence.

Having followed the above approach, if you then do decide to discount the value of a person’s evidence (or an element of it) because you have decided that their evidence is not credible, you should expressly state this in your report, together with a reasonable, logical basis for your comments on credibility. The section of Chapter 19 entitled “Sample analysis of a party’s credibility” provides suggestions for how you can communicate your thinking about the credibility of evidence you have obtained. In contrast, making unjustified comments in regard to a party’s credibility will affect the procedural fairness of the investigation and the soundness and defensibility of your decision-making. When weighing up the credibility of a party’s evidence refer to the “credibility of the respondent’s evidence”, rather than “the respondent’s credibility”.

Case example In the case of Lee v Smith & Ors [2007] FMCA 59, the investigator concluded that the complainant lacked credibility as the investigator believed she had falsified some diary entries. There was no apparent evidence that the complainant had done so but the investigator said, “That was her opinion as investigator.” This investigation was the subject of extensive criticism by Connolly FM of the Federal Magistrates Court of Australia and the complainant was ultimately awarded over $400,000 in damages.

Key points • When you make findings of fact, apply the civil standard of proof — the balance of probabilities. Having considered all the evidence, ask whether the alleged conduct is more likely than not to have occurred. • In assessing the evidence you have gathered, consider whether it is relevant to the allegations, probative, and not overly prejudicial to the respondent. Consider how much weight to give this evidence, compared to all the other evidence. • Evidence of past similar misconduct can be considered, but be aware of the risks. You need to satisfy yourself that it is relevant to the allegations, and more probative than it is prejudicial. • Give more weight to first-hand, direct evidence. It is more reliable than hearsay evidence. • You can consider hearsay evidence if you have little other useful evidence. Remember that it is not evidence of what occurred, it is only evidence of what a person told someone else. • Consider whether evidence is corroborated by other evidence, to assist you in your analysis. • Analyse carefully poor recollections, evidence of lying, inconsistencies and evidence of motive to bring a false complaint. • Motive of the complainant in making the allegations may be relevant to your analysis, but an honest complainant should not be denigrated for having raised valid concerns of a breach of policy, no matter what motivated them to raise their concern. • You may need to make your findings of fact based on assessments of the participants’ respective credibility. If so, explain clearly in your report the basis upon which you have found a witness’ evidence to be credible or not credible.

A case study — Yellow Duck Limited — Episode 9: Assessing the evidence You have interviewed Sam, including asking him about his allegation that “Last month at a team meeting, I was presenting about a key client and I saw Marisa scratching herself then she smiled at Kim. She was obviously trying to put me off.” You have recorded all your interviews. Here is part of the transcript of Sam’s interview. “Q. What happened at the meeting in July? Well what happened was I was already pretty upset about Marisa’s behaviour. It has been terrible really and you have to realise this has been going on for quite a while and I think it is because Marisa really wants to give my job to her cousin, I need to tell you about her background because my friend Jack told me that Marisa is known for this, she has done it in the past. He’s in accounts management at Visconti and knows her cousin, he wants out of there. Q. Can I ask you first to tell me what happened at the meeting in July? A. Yes, yes, OK, well it was half way through the meeting and each month each manager has to give a brief update on progress of their key clients. So I stood up and I saw movement out of the corner of my eye so then I saw Marisa scratch herself on her neck, like she was rolling her eyes, even though she quickly put her hand down and then I saw Kim smiling at her and I just knew straight away they were doing this to upset me because of my skin. They know I don’t like to talk about it and with all this stress it is getting so bad and it is costing me a fortune in doctors’ bills and medication. Anyway after the meeting I was talking with David and I told him they were the ones that made me leave the meeting and he said he saw it too. Q. Can you draw me picture of where Marisa, Kim, you and David were sitting? A. Why do you need me to do that? I think they were to my left. Marisa was, she was to my left but I could see her face. I can’t remember where David was.”

How relevant is Sam’s evidence that “Marisa really wants to give my job to her cousin”? Why? Is any of Sam’s evidence hearsay? How relevant are the following facts, and why? • Sam can’t recall where David was sitting. • Sam is being actively performance-managed by his manager, Kristen, and his presentation at the meeting was important in his performance improvement plan. • David has just had laser surgery on both eyes to correct his vision. • When in a more junior role, Marisa received a written warning for habitual lateness. • David’s children and Marisa’s children attend the same school. • Sam hopes to study law as a postgrad student. • Marisa has hay fever and took antihistamine medication just before the meeting.

Chapter 18: Decision-making Decision-making: Whether the allegations are proven ¶18.1 The role of intuition

¶18.2

Unconscious bias and decision-making traps

¶18.3

Types of findings

¶18.4

Is the proven behaviour a breach of policy?

¶18.5

Editorial information In some investigations, by the time you have finished collecting the evidence, you will have a very strong sense of what happened, and whether or not the weight of the evidence supports the allegations of fact. Perhaps a piece of evidence was undeniable, or a party crumbled when presented with contradictory evidence, or the allegation was soundly disproven by clear and uncontested CCTV footage. Perhaps all of the evidence points one way, or the respondent admitted many of the allegations. Other cases are more “line-ball” decisions, with equal amounts of evidence supporting and negating the allegations of fact. While decision-making is often intuitive, in a workplace investigation you need to be conscious of what is driving your decision-making — and objectively on what evidence your decision is based — and also be able to express this in your report. A further decision is often required after an investigation, namely, what disciplinary or other consequences flow from the findings and conclusions about breach of policy. This is discussed further in Chapter 21. In this chapter we have used the words “proven, partly proven or not proven” and the terms “substantiated, substantiated in part or not substantiated” interchangeably. In your investigation either term can be used.

¶18.1 Decision-making: Whether the allegations are proven Making a decision about the allegations and whether they are proven or not involves rational thought, a critical assessment of the evidence and active avoidance of common biases and errors which might pull you inadvertently towards the incorrect outcome. Be aware that your decision will be flawed if you: • use faulty assumptions when you evaluate the evidence • allow your emotions to influence your analysis (to quote Jonathan Haidt, don’t let your emotional tail wag your rational dog)1 • fail to consider fairly all the evidence you have collected • apply inappropriate weight to some of the evidence • apply a logical fallacy or flaw in reasoning, or • unthinkingly accept what you have heard or read from the participants. Critical thinking Decision-making in a workplace investigation must be based soundly on the evidence you have collected,

and not on your personal feelings about the subject matter or the pressure you may feel from others in the organisation. Put aside your own preconceived assumptions or expectations, and set aside other people’s opinions and motives about the case. Critical thinking requires you to apply clear reasoning, logical deduction, and good judgment to all the information you have collected, together with your sound assessment of the relevance, credibility, quality and probative value of that evidence. Be rigorous and thorough at this late stage in the investigation. If you find yourself rushed or jumping to conclusions thinking “that will have to do”, pause and take a breath. Ask yourself the following questions: • Have I considered all the facts? Have I made sure that I don’t favour or give more weight to evidence simply because it supports the view I had at the start of this investigation? • Have I tested and challenged any assumptions? For example, if I assume that it is unlikely that a junior female employee has bullied a senior male manager, have I let this assumption cloud my thinking? • Is my reasoning sound? Will I be able to explain this decision if someone disagrees with me? • Can I be sure my judgment is unbiased? What has influenced me in making this judgment? • Is my thinking process logical, rational and complete? • Is there anything I may have overlooked? By bringing rigour and discipline to your thinking processes, you position yourself better to make the right decision. You are more likely to make findings of fact which are defensible, logical and reasoned. You will have made decisions fairly and soundly, based on the evidence and not on assumptions or irrelevant material. This is because you have thought deeply about why and on what basis you are making this particular finding. If your findings are challenged by the organisation, the parties or even a court, you will be able to confidently defend your thought processes and your decisions. Footnotes 1

Jonathan Haidt, “The Emotional Dog and Its Rational Tail”, Psychological Review 108 (4):814– 834 (2001).

¶18.2 The role of intuition Often thinking is not a conscious process, we just feel like we know the answer — a “gut feel”. When making decisions in daily life and in professional contexts, intuition plays a significant role for many people. In fact, some people would, upon later reflection, identify their initial, intuitive response as ultimately leading to the right decision. In the context of making decisions and weighing up evidence in a workplace investigation, it is critical that the decision-maker is aware of the role their intuition may be playing. They must be able to suspend the influence of intuition, and test the impulses which might push us in a certain direction. If you feel strong intuition that a certain party is right, ask yourself: What is it about this party’s evidence, or other evidence, that is leading me to believe him? Is my “gut feel” based on actual evidence I have collected, or do I want to believe this party for some other reason? Some research has found that in situations with high levels of time pressure, higher stakes or increased ambiguities, experts use intuitive decision-making rather than structured approaches.2 They fit a set of indicators into a “snap” decision based on their own known experience, and decide without weighing alternatives. This is not a sound decision-making approach in the context of workplace investigations, where you will need to clearly articulate, usually in writing, how you have thought about and reached your

decision. Footnotes 2

Malcolm Gladwell, Blink: The Power of Thinking Without Thinking (2011, Little, Brown and Company).

¶18.3 Unconscious bias and decision-making traps We all have unconscious biases that operate subconsciously most of the time. Research has shown that unconscious biases develop during childhood.3 It is vital for investigators to be aware of their unconscious bias. Self-awareness that we have a preference for men over women, or straight people over gay people, or confident people over shy people, can help you to avoid making wrong decisions based on unconscious bias. You can test your implicit bias using the Implicit Bias “Social Attitudes” Test (implicit.harvard.edu/implicit/). Unconscious biases are not permanent. In fact, research shows they are malleable4 and steps can be taken to limit their impact on our thoughts and behaviours. As an investigator, you should become aware of any unconscious bias that may be influencing the way in which you engage with an individual during the investigation, analyse the evidence and make decisions. Investigators can do this by: • developing your own self-awareness: recognise biases using the Implicit Association Test (or other instruments to assess bias) • understanding that unconscious bias is a normal and human part of making sense of the world around us, and that it is each person’s individual responsibility to address the risks that flow from this • countering the effects of unconscious bias when conducting interviews with individuals with a whole range of personal attributes (for example, sex, race, sexuality, impairment, appearance, culture), and also when we are analysing information and acting as decision-maker • taking opportunities to have discussions with others from socially dissimilar groups and be open to alternative perspectives, and • asking for a second pair of eyes to review your analysis of the evidence and findings of fact (while maintaining confidentiality) to ensure that your thought processes and findings are sound. In addition to unconscious bias towards or against people who have certain personal attributes, there are some common, well-researched human tendencies which have the effect of steering us away from rational thinking and sound conclusions. There is a wealth of literature about common human biases including the recommended text, Thinking, Fast and Slow by Daniel Kahneman.5 Being aware of these tendencies can reduce the likelihood that you will be pulled off track. Consider the following biases which may potentially affect you in your role. Anchoring bias This is the tendency to rely too heavily, or “anchor”, on one piece of information. In the context of making a decision in a workplace investigation, this may occur when the investigator focuses on a particular piece of evidence and then proceeds to evaluate all the other evidence with reference to that piece of evidence. Alternatively, it occurs when a view of a particular piece of evidence becomes the lens through which subsequent judgments about other evidence are made. For example, you might decide that a witness whom you interviewed early on is credible as you found their account to be logical and compelling.

As the investigation progresses you may, unintentionally, evaluate other people’s credibility or other evidence with reference to your early positive judgment of this initial witness, instead of evaluating all the evidence as equal parts of the overall “jigsaw”. Confirmation bias Confirmation bias is the tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to errors of logic. This can pose a real danger for decision-makers, particularly when they unconsciously but actively seek out evidence that confirms their hypotheses. Furthermore, decision-makers with confirmation bias ignore or give too little weight to evidence that could challenge their hypotheses. The impact on investigators is twofold: confirmation bias can not only affect the selection of which evidence is sought and collected, but also how much weight is attributed to that evidence. According to Daniel Kahneman, we are also often disposed to believe a statement which is put to us, at least initially, regardless of how nonsensical it might be. Furthermore, instead of refuting a statement or an idea when we hear it, we are inclined to seek information that is likely to be compatible with the beliefs which we already hold. This is something to bear in mind as our views on the case develop over the duration of the investigation: avoid the trap of unconsciously believing the first party or witness whom you interview, and take care not to favour evidence that confirms your own hypotheses. As investigators, we also need to be aware of the impact of confirmation bias not only on ourselves but on our interviewees. For example, in the context of an interview, a question such as, “Is Philip a good manager?” might elicit a different response to the question, “Is Philip a poor manager?”. A better question is, “Can you tell me about your experience of having Phillip as a manager?”. Confirmation bias may also be demonstrated by an instructor who continues to believe the first person who told them about the allegations, or their belief that a particular participant is unethical, no matter what the investigation later proves. Instructors can risk influencing the investigator, such as offering a subjective running commentary about whether a particular witness is “unreliable” or certain allegations are “rubbish”. The familiarity principle Another phenomenon that can impact on decision-makers is the “familiarity principle”, whereby we are inclined to like things or people more, the more we are exposed to them. In other words, the positive feelings we experience are significantly attributable to our exposure and are not based on merit or any other rational explanation. As a result, decisions made on what is familiar can be less than optimal as they are potentially based on an illusion, not reality. This principle has obvious applications in marketing and politics. In the context of decision-making in an investigation, we need to be aware of whether we might prefer a particular person or their version of events if we happen to have higher levels of contact or familiarity with them, for whatever reason. Other biases Other practical examples of investigator bias, and irrational or irrelevant considerations which could skew the investigator’s process or reasoning, include: • bias towards the employer or the investigator’s client, being the entity paying the investigator’s bills • bias against delivering bad news or an undesirable result, out of fear that the employer might “shoot the messenger” • bias against serial complainants, “whingers” or “screw-ups” (employees who are disliked by managers for other reasons) • bias towards easy answers and quick closure of cases, particularly when handling a heavy workload • bias away from conflict, for example, where making a particular finding might generate legal action or further complaints against the employer or against the investigator

• bias towards “majority rule” • bias towards people with power or management, and • bias on the basis of political beliefs, for example, the belief that people of certain characteristics are often hard done by. Footnotes 3

Dore, R., Hoffman, K., Lillard, A. and Trawalter, S. “Children’s racial bias in perceptions of others’ pain”, British Journal of Developmental Psychology (2014), 32, 218–231.

4

Dasgupta, Nilanjana. (2013). “Implicit Attitudes and Beliefs Adapt to Situations: A Decade of Research on the Malleability of Implicit Prejudice, Stereotypes, and the Self-Concept”. Advances in Experimental Social Psychology. 47. 233–279.

5

Daniel Kahneman, Thinking, Fast and Slow (Penguin, 2011).

¶18.4 Types of findings For each allegation, you need to make a decision, on the balance of probabilities, either that: 1. The alleged conduct did take place (proven or substantiated). 2. The alleged conduct did not take place (not proven or unsubstantiated). 3. Only some parts of the alleged conduct took place (partly proven or partly substantiated). If you find yourself thinking “I just can’t make a decision”, or that it is not possible to determine from the evidence available whether or not the employee has engaged in the conduct alleged, review your analysis and the evidence you have collected. Is there any more evidence you could collect which would help? If not, and there is nothing else you can find out which will tip the weight of the evidence either way, then your finding must be that the allegation is not proven. Keep in mind that “not proven” does not mean that you have proven that the alleged conduct didn’t happen. “Not proven” means that the evidence collected in the investigation has not proven that the alleged conduct did occur. Proven or substantiated In a workplace investigation, an allegation is a claim of a fact by a party which that person claims is true. Allegations remain assertions without evidence to prove them. A substantiated allegation is one that has enough reliable evidence to prove it. As we have seen above in Chapter 17, the appropriate burden of proof is the balance of probabilities. The allegation is therefore proven if the evidence is weighted in favour of the allegation. Partly proven Some allegations allege more than one alleged fact. If some but not all of the alleged facts are proven, you can state this, as in the following example: “The investigator finds, on the balance of probabilities, that the allegation is partly proven. It is proven that Mr McNamara said to the complainant, ‘You have applied the wrong formula again. I can’t believe you even got a commerce degree. Must have got it out of a breakfast cereal box.’ and later that day also said to Gin, ‘I don’t know where they get the graduates these days, they are so poorly trained and can’t even use Excel. She does not belong in this organisation.’ It is not proven that Mr McNamara stood over the complainant in an intimidating way or that he spoke

aggressively to her when making these comments.” Not proven or not substantiated When on the balance of probabilities there is insufficient evidence to find that an allegation is proven, the allegation is not proven or not substantiated. If the evidence doesn’t persuade you that it is more than likely than not that the alleged behaviour occurred, your finding will be that the allegation is “not proven”.

¶18.5 Is the proven behaviour a breach of policy? Once you have decided what conduct is proven, you will need to determine (or make comment on, if another person in the organisation has ultimate decision-making power about breach of policy and discipline) whether your organisation’s policies or code of conduct have been breached. Two considerations will determine this: 1. What exactly does the policy say? What are each of the elements of the conduct rules and behavioural standards set out in the policy? 2. What is your value judgment about the conduct? Compare the conduct that you have found to have occurred with the conduct rules and behavioural standards set out in the policy. What does your policy say? As discussed earlier in this book, during the scoping phase of the investigation, your investigation plan should have initially identified early what policy the respondent is alleged to have breached, and planned for the collection of the necessary evidence, including evidence about the respondent’s intention where that is relevant. For example, in a bullying investigation, you will have collected evidence about whether: • the behaviour was repeated • the behaviour was unreasonable in the circumstances or was there a reasonable explanation, and whether • the behaviour caused a risk to the health and safety of the complainant. Your decision about a breach of policy should then be straightforward as you will have evidence upon which to base your decision. Assessing whether there has been a breach of policy will also often require an interpretation of the words of the policy. For example, what constitutes “belittling” or “disrespect”? What is the behaviour that might have been “reasonably expected” to have a certain impact? What is behaviour that can “pose a risk to health and safety”? If interpreting the policy turns on the definition of a word, look it up in the dictionary, and quote the dictionary definition in your report. If the policy refers to a standard of conduct (such as reasonable) “in the circumstances”, you will need to consider the circumstances of those employees, in that team, in that working environment, at that time. Determining breaches of policy: Value judgment Some employment policies include a value judgment about the ethical nature of conduct in the workplace. The organisation’s values may require staff to act professionally and with integrity, and the finance procedures may require that staff act honestly and without conflict of interest, for example. Depending on the policy that the respondent is alleged to have breached, your findings of fact must be accompanied by an assessment of whether the proven behaviour breached those value judgments. This sort of decision is different to your fact-finding based on the balance of probabilities because you will need to subjectively assess the quality or character of the proven behaviour. Policies will generally provide some examples of behaviours or conduct to illustrate how the policy is expected to apply, which will assist your decision-making. Judging whether there has been a breach of policy will mean that it is appropriate to take into account the context of the conduct that has been proven.

Say you determine that Mario shouted at Sylvie and said “Just stop now! Don’t be an idiot!” — the alleged facts were proven. In terms of policy breach, you may decide that because Mario had told Sylvie three times in the previous fortnight not to walk outside the safety lane, and on this day he shouted from some distance away because he saw a forklift truck coming quickly towards her, Mario’s conduct was reasonable in the circumstances. Stating what is “reasonable” is an imprecise science. “Reasonable” is generally considered to mean fair, moderate, sensible and appropriate. It involves your subjective evaluation of the nature of conduct which took place in the workplace. It can be helpful to consider the commonly accepted communication styles and behavioural norms in this workplace, and what the organisation’s values, policies and procedures say about what is appropriate behaviour. You can then base your comment on a comparison between the behaviours you have found proven and what is considered acceptable in that workplace. In the example described earlier, a respondent saying, “You have applied the wrong formula again! I can’t believe you even got a commerce degree. Must have got it out of a breakfast cereal box,” may not be unreasonable, if the comment was not made in an aggressive way, the parties have been friends for some time and the comment was said in the context of light banter and joking which was common between the complainant and respondent, who were both laughing immediately afterwards. On the other hand, if the respondent was the complainant’s manager and responsible for deciding if the complainant would be appointed permanently, and the respondent walked away laughing while leaving the complainant in stunned silence, you might not consider the respondent’s conduct to be reasonable. Whatever your decision, it is important to state in your report the relevant conduct rule or behavioural standard, and describe your analysis of the proven conduct. Include all the circumstances that you have taken into account, and comment on each of the necessary elements of the standard, including definitions where needed. Key points • Once you have collected and analysed the evidence, you must make a decision, based on this evidence, as to whether the allegations made are proven, partly proven or not proven. • Make sure you are confident that all findings of fact you make are defensible, logical and reasoned. • This requires you to think critically about the basis for your decision, and to double-check that your decision is truly based on sound evidence, and not influenced by personal feelings or outside pressures. • Be aware of the role that your intuition may be playing. Be able to suspend its influence and focus rationally on what the evidence shows. • Be aware of any personal tendencies that have the effect of swaying you irrationally by a particular factor, or bias you towards or against a particular person or outcome. • When you have decided what conduct is proven (if any), you will need to assess it carefully against the definitions and examples in the policy, to decide whether there has been a breach. • You should be able to explain your decision-making process clearly and coherently in your investigation report.

Case Study — Yellow Duck Limited — Episode 10: Pressure to complete The company secretary emails you directly, asking, “Is that investigation mess wrapped up yet? We’re finalising the Board report and it includes complaint statistics. With all the pressure on ethics in the industry, we want a clean bill of health. Can you finalise this before Monday? None of us wants to have delays or outcomes that we have to explain in the Board room.” You have one more witness to interview, and you have not yet identified contradictory evidence to put to the parties. 1. How do you respond to the company secretary? 2. Do you describe this email exchange in the report, and if so, how do you describe it?

Chapter 19: The Investigation Report Who is the audience for your report?

¶19.1

Structuring the investigation report

¶19.2

Helpful words and phrases for report-writing ¶19.3 Completeness

¶19.4

Format and length

¶19.5

Provision of draft reports

¶19.6

Executive summary

¶19.7

Attachments to your report

¶19.8

Editorial information Your investigation should be documented in a written investigation report. While sometimes it is appropriate for an in-house investigator to collect evidence and take action immediately, it is best practice first to document the investigation process, the evidence collected, an analysis of each allegation and the outcome. The purpose of a written report is to: • Demonstrate that you have followed a fair and rigorous procedure. • Identify the evidence you collected, how you collected it, and what evidence you relied on to make your decisions. • Allow others in the organisation to use your findings to make employment decisions, if necessary. • Be a record of the matter for future use should similar behaviours occur again. • Be a record of the investigation should there be an internal or external review or appeal of your findings. Do not underestimate how important it is to put your procedure and its outcomes on the record. Poor documentation means that you and the organisation will not be able to defend your work in case a party against whom disciplinary action is taken challenges that decision. Many challenges to investigation outcomes happen some months — or even years — after the investigation was completed, even after the key decision-makers have left the organisation. You do not want all your careful investigative work to be overruled in a court because you have not stated clearly in your report how you have collected evidence, from where, whom you interviewed, how you put contradictory evidence to the parties and how you reached your findings of fact. The level of detail in the report will reflect the seriousness of the allegations and the likely readership of the report. In most cases, the report will be read by others in the organisation apart from you, the investigator. This may not be the case if you are tasked with both investigating and decision-making, although ideally the person who makes the decision about disciplinary action against the respondent should not also have been the investigator. Nevertheless, it is always good practice to document your investigation for the record. Writing your report can be time-consuming and intellectually intense, depending on its level of detail and the complexity of the matter. There is often internal pressure to finish the investigation and report on its outcome as soon as the last witness has been interviewed. Despite that pressure, ensure that you give yourself enough time to consider the evidence carefully and write a report which does justice to your careful planning, adherence to good process, analysis of the evidence you have collected and,

importantly, procedural fairness to the participants who have assisted the investigation. Your report must reflect the scope and purpose of the investigation. Look back at your scope and the issues you set out to investigate and ensure that your report answers all of the questions posed implicitly and explicitly in that scope and purpose. If your purpose is to determine if there has been a breach of organisational policy, ensure that you address each of the allegations and make a finding of fact as to whether the alleged behaviours occurred or not and, if so, did the behaviours constitute a breach of policy. Think about your audience and who may need to read the report and act on its findings. Your report will be clear and helpful to the reader if it is structured around the allegations made and the evidence you have used to make your findings of fact. Ideally, any reader will be able to understand what evidence you collected and the weight you gave it in assessing the evidence and the findings you have made. Your investigative work and your clear and succinct conclusions should be transparent to the reader. The organisation’s decision-maker can then decide to accept your findings or not and make decisions based on what you have found. Ideally, there will be enough detail in the report for the organisation’s decision-maker on discipline — or a judge or Fair Work Commissioner! — to make their own assessment of whether you have followed a sound process and made sound decisions on the evidence. To reduce the amount of work involved in pulling your report together and allow you to focus on the intensive analysis process at the end of the investigation, start preparing parts of the investigation report before the end of the investigation. For example, the scope of your investigation, your methodology, the details of the witnesses interviewed and any issues arising during the investigation can be drafted as you go along. You can also start preparing a list of relevant documents, which will be attached to the report, as you collect the evidence.

¶19.1 Who is the audience for your report? Think about who is likely to read your report. While you must make findings of fact without fear or favour, draft your report and vary the amount of detail it contains so that it will best meet the needs of the intended audience. While you would not change your findings simply because of who may eventually obtain a copy of your report, the audience can dictate the level of detail in the report. Will your report be read by the parties, by the line manager only, by the Board or by your internal lawyers? Could the decisions based on the report lead to litigation? If so, will the report be reviewed by a court or tribunal? Might the parties obtain a copy of the report through a Freedom of Information application? Different potential audiences expect or require different levels of detail or formality. Although in this book we do not recommend providing a copy of the full investigation report, plus all the records of interviews as attachments, to the parties (see discussion in Chapter 7), some organisations do provide the parties with a copy. If your report is likely to be read by the parties, you will need to be sensitive to the impact on working relationships, particularly if the parties can read what their colleagues said about the allegations and the circumstances. One way to do this is to summarise the evidence from witnesses rather than quoting them in full. This will usually be adequate for the parties to understand the findings, and may go some way to protect the witnesses from victimisation and reduce the damage to their working relationships. It can, however, mean that your report is not as complete and thorough as the parties would want. In other words, it is rarely possible both to report fully and comprehensively on your investigation process and outcomes, and also to prepare a report that will not have some negative impact on workplace relationships if it is provided to the parties.

If your organisation does provide the full report (and records of interviews) to the parties, witnesses must be informed of this fact before their interviews, so they may make an informed decision about whether and how they participate. As discussed in Chapter 6, to assist the parties to understand the outcome of your investigation, you can provide a summary report for the parties, without copies of evidence attached. The summary report should contain enough information for the parties to understand the thoroughness of the process, that their evidence was given a fair hearing, and what evidence was considered in making findings of fact. For example: “In relation to allegation 1, that the respondent assaulted the complainant after the toolbox meeting on 3 July, the investigator interviewed the complainant and the respondent and the two relevant witnesses that the parties agree were present at the time, Paula and Zane. The respondent’s denial of the allegation was contradicted by the two witnesses, who were found to be credible and reliable. The respondent’s evidence was given less weight because the respondent’s evidence about where she was on the afternoon of the alleged assault was vague and incomplete, and she contradicted herself twice during her interview when she provided two different explanations as to where she was. By comparison, Paula and Zane’s evidence was consistent and clear. The investigator therefore finds that the allegation is proven, on the balance of probabilities. In the investigator’s view, the proven conduct constitutes an apparent breach of clause 7 of the Code of Conduct and clause 2 of the Workplace Health and Safety Policy, which both prohibit assault and occupational violence.” First or third person Most internal investigators write their reports in the first person, that is, “I have considered the evidence of the complainant and found that …”. In more formal investigations, some investigators prefer to write in the third person, that is, “The investigator finds …”. The advantage of the use of the third person is that it casts the investigator in an objective rather than subjective voice, and does not make the individual investigator the focus of the case. The focus is more correctly on the evidence, which should be able to speak for itself. When setting out the evidence, be careful to include the subject and use direct language in your sentence structure. Writing “It was confirmed that Inigo threatened Rugen” is vague and does not state who confirmed the threat; “Fezzik confirmed in his interview that he had witnessed Inigo threaten Rugen” is a vast improvement. Using full names rather than pronouns also avoids ambiguity. For example, write “Ms Spencer stated that Ms Hanover had never arrived at work at 9 am”, rather than “Ms Spencer stated that she had never arrived at work at 9 am”. Legal professional privilege If you are conducting an internal investigation and you are not an in-house lawyer tasked with providing legal advice to the organisation, it is unlikely that your report will be protected from disclosure in court in any future legal proceedings1 (see Chapter 6 which outlines when legal professional privilege may attach to an investigation report or interview records). Freedom of information Individuals have rights under the various Freedom of Information legislation of the commonwealth and states and territories to request access to government documents. If you undertake investigation work for a public body, such as a government department or agency, a university or a hospital, among others, your report may be subject to Freedom of Information (FOI) applications and the organisation may have to release your report to the applicant (usually, one of the parties). Footnotes

1

In the absence of legal professional privilege, it is likely that your report will be protected from disclosure in court even if the report is marked “private and confidential”: see Mr Gordon Cooper and Ms Rosemary Cooper [2016] FWC 7627.

¶19.2 Structuring the investigation report Here are the standard items that a formal written investigation report should contain: • Cover page marked “Strictly Confidential” (and “Subject to Legal Professional Privilege”, if appropriate) and dated. • Executive summary of the allegations, investigation process and conclusions. • The allegations. • How and when the allegations came to the organisation’s attention. • The methodology for the investigation, including statements about: – if you were “appointed” by another person in your organisation, how you were appointed and when – whom you interviewed, and how you did so (eg in person) – how you recorded the interview – what other evidence you collected, and how you did so – whether you made a site visit, and – any other enquiries you made. • What interviews were conducted, and how the witness was considered relevant, for example, “Van Nguyen, who was identified by the complainant as a witness to allegation 5”. Include here a list of any relevant witnesses who did not participate, why they did not, and what, if any, impact this had on the investigation. • A description of all the documentary evidence and other evidence you have considered, including the written complaint, written responses, transcripts of interview, documents provided by the parties and other documents you sought. If the material provided is voluminous, you can summarise such as “Folder of documents provided by complainant as set out in Appendix A”. • Any other evidence that was collected and considered. • A description of any “issues arising” such as delay, parties’ objections or procedural issues you considered. Then for each allegation: • The allegation. • Any agreed facts (such as “The respondent agreed that the sum of $4,312.88 was withdrawn from the company’s cash account on 3 November 2019”). • Details of the evidence collected, including any responses to contradictory evidence. • Analysis of the relevance, credibility and reliability of the evidence, and the weight given to it.

• A finding of fact for each allegation (see more detail below). • Where you make adverse findings against any person, confirmation that the person was given the opportunity to respond to the allegations, and fair inclusion of his or her defence. • A consideration and succinct conclusion about whether the proven conduct amounts to a breach of policy. Unless specifically instructed to do so, the report should not contain any opinion about the motives of the parties. Do not include in the report any comment on matters that are outside the scope of your investigation’s terms of reference.

¶19.3 Helpful words and phrases for report-writing In your investigation report, you will articulate your thinking and decision-making in a way that will be understood and compelling for any separate decision-maker in your organisation. You can also tailor your report to an appropriate level of detail, based on the seriousness of the alleged behaviours and the risks to the organisation. Where the allegations are serious, and legal action or serious disciplinary action is a likely consequence, a detailed and formal investigation report is advisable. Set out below are some sample sections of such a report. The key components can be included in all investigation reports, although the choice of language and level of detail can be modified to suit each case. Sample description of scope of finding Given some allegations will contain context and background in addition to the alleged misconduct, in some circumstances it can be helpful to state precisely what you are making findings about. For example: “This allegation contains background and statements of an emotional response and medical impact of alleged behaviours which are outside the scope of this investigation. In relation to this allegation, the investigator has made findings of fact about the following alleged factual matters only: 1. That on 6 September 2020, Ms Yousif ridiculed Mr Flanagan in front of client AB, when she pointed at Mr Flanagan and said ‘there is someone who really needs to stay out of the biscuit jar’; 2. That on 6 September 2020, Ms Yousif told Mr Flanagan to get out of the meeting and get the client a coffee rather than waste everyone’s time.” Sample analysis of a party’s credibility “In the opinion of the investigator, the evidence of Ivana was more credible, because: • Ivana’s version of events makes the most logical sense; • Ivana’s version of events in interview was more convincing because it was complete, consistent and credible; • The weight of the evidence collected indicates that Ivana’s account is likely to be accurate, as it is corroborated by the other witness’ accounts of the stocktake process; • Ivana’s evidence was fully corroborated by Megan’s file note taken on that evening, as well as CCTV footage; • The investigator is not aware of any motive that Ivana has to be deceptive or misleading; and • Other than the evidence of Anthony, which I have found to be of low credibility because it was speculative and based on rumours from third parties, none of the evidence contradicts Ivana’s evidence.”

Sample analysis of evidence, findings of fact and assessment against policy The example below sets out how, in a formal and detailed written report, you could identify the evidence you have considered, weigh it up for strength and reliability, decide what evidence you will rely on and whose account of events you accept, and make your findings of fact. Of course there are many ways to write your analysis and findings, and much will be determined by the nature, complexity and seriousness of the allegations. This example demonstrates the more formal approach. “Analysis of Evidence Sarah Bourke’s allegation that the respondent, Don Whatley, made three inappropriate requests for sexual favours, and attempted to kiss her on the first occasion, was corroborated in part by the evidence of a witness, Marie Theophanous. Ms Theophanous said that she heard and saw one of the requests (the alleged incident on 6 October in the Members’ Lounge), and she provided evidence that was largely consistent with the complainant’s account of what occurred. Apparently without telling the complainant or the respondent, Ms Theophanous told the investigator that she made a note of what occurred and sent it to herself in an email because she was shocked at what she heard. This email was provided to the investigator and is dated the day of the alleged behaviour. The account recorded in that email corroborates what Ms Bourke now alleges. The other two alleged inappropriate requests for sexual favours were not witnessed. The complainant did not provide precise details of what was alleged to have been said, but she referred to ‘feeling uncomfortable’. Ms Bourke said that she told her close friend, Annieke Walsh, what happened. Ms Walsh confirmed that Ms Bourke told her she was upset and that the respondent had ‘hassled her’, before Christmas 2019. Ms Walsh said they discussed this approximately three times but that the complainant did not tell Ms Walsh the behaviour had happened more than once. Ms Walsh said she understood the inappropriate requests for sexual favours had only happened once, even though they talked about it on more than one occasion. Mr Whatley strongly denies the allegation and said that he was a family man and happily married. He repeatedly said, ‘I wouldn’t have done such a thing’. His response to Ms Walsh’s contradictory (but hearsay evidence) evidence was that Ms Walsh was lying because he was performance-managing her due to consistent poor performance. The investigator finds that the complainant’s evidence was credible and persuasive. Her account of one of the events is corroborated by the evidence of Ms Theophanous and her contemporaneous written account. The investigator finds that in relation to the first request, the weight of the evidence supports the allegation that on 6 October the respondent asked the complainant to have sexual intercourse with him and attempted to kiss her. That allegation is proven, on the balance of probabilities. In relation to the other two requests, there is insufficient evidence to prove they occurred. The complainant’s evidence lacked detail and she did not provide a specific account of what Mr Whatley had said to her. Mr Whatley’s denial of all three allegations was the same, and it was not strong in the investigator’s view (referring to his marriage and what he ‘wouldn’t have’ done). The fact that the first allegation against Mr Whatley is proven does not mean that he necessarily engaged in the second and third alleged incidents. The hearsay evidence provided by Ms Walsh was not persuasive that the alleged behaviour had occurred more than once. The investigator therefore finds that there is insufficient evidence to substantiate the allegation in relation to the second and third alleged behaviours. Findings of Fact The investigator finds, on the balance of probabilities, that it is proven that on 6 October, the respondent asked the complainant to have sexual intercourse with him and attempted to kiss her. The investigator finds that it is not proven that the respondent made unwelcome sexual advances on two later, unspecified dates. Breach of Policy Asking a person to have sexual intercourse and attempting to kiss a person is clearly ‘conduct of a sexual nature’ as explained in the Sexual Harassment Policy. Section 1 of that policy defines ‘conduct of a sexual nature’ to mean ‘mean actions, language or visual materials which specifically refer to, portray or involve sexual activity or language’, and it includes as examples ‘a request for sexual favours’, ‘a sexual

advance’ and ‘kissing’. Ms Bourke’s evidence that the advances were ‘unwanted’ was clear and credible. Mr Whatley did not make any comment when asked whether such an advance would be ‘wanted’ by Ms Bourke, saying only ‘You’d have to ask her’. On this basis, the investigator finds that the proven conduct was of a sexual nature and was unwelcome to the complainant. The investigator finds that the proven behaviour was a breach of clause 2 of the Sexual Harassment Policy.” Sample wording for findings of fact For each allegation you make findings of fact about, make a clear statement of exactly what you have found to be proven or not proven. Ensure that you use consistent language in relation to every allegation. For example: “Allegation 1 — Narelle sexually harassed Doug at the company Christmas party on 12 December, by showing him three explicit pictures on her mobile phone. The investigator finds, on the balance of probabilities, that Narelle did engage in the alleged conduct. The investigator finds that the proven conduct was of a sexual nature and unwanted by the complainant. In the investigator’s view, Narelle appears to have breached clause 4 of the Sexual Harassment and Discrimination Policy.” If you are not the decision-maker in relation to breach of policy, use a phrase like, “The investigator comments that the proven conduct appears to breach …”, rather than making a ‘finding’ about breach. This language makes clear that the decision-maker can independently make their own assessment of whether the proven behaviour constitutes a breach of policy or not.

¶19.4 Completeness For the investigation report to stand up to scrutiny, it should list all of the evidence that you collected in the investigation, and at a minimum a brief statement of whether and how you took that evidence into account. If you fail to mention in your report a piece of evidence that you collected or how it was relevant, a claim might be made later that it inappropriately affected your decision-making. Similarly, if there is evidence relied on in your report which was irrelevant (for example, about another allegation), or which the respondent has not had a chance to comment on, this may be found to have been procedurally unfair. Case example In the case of Remmert v Broken Hill Operations Pty Ltd T/A Rasp Mine [2016] FWC 6036 (10 October 2016), Commissioner Hampton of the Fair Work Commission held that an employer had a valid reason to sack an employee, Mr Remmert, for posting “belittling” comments on Facebook about a co-worker, however, the employee’s termination was unfair under the Fair Work Act 2009 (Cth). The employer conducted an investigation into alleged Facebook comments by some employees, with Mr Remmert giving a response to the allegations on 14 April. On 18 April 2016, the investigating panel found that four employees including Mr Remmert had contravened the employer’s policies and procedures, and Mr Remmert was subsequently dismissed. One of Mr Remmert’s arguments was that he was not given notice of, nor provided with an opportunity to respond to, two of the reasons for dismissal that were apparently relied on by the employer prior to the decision to terminate his employment. Mr Remmert argued that the investigation report referred to a “Confidential Report” provided by a Maintenance Superintendent to the investigator. The investigator considered that Confidential Report “very relevant to this incident and supports the bullying behaviour currently being experienced by other crew members”. Secondly, the employer had found certain “Boom Gate tag time discrepancies” which Mr Remmert said he hadn’t had a chance to respond to. Commissioner Hampton accepted these arguments, holding that the investigation process was flawed and therefore the termination of his employment was unfair. Although Mr Remmert had been allowed the chance to respond to the allegations against him regarding the Facebook comments, these were not the sole reason for his dismissal. Other factors referred to in the investigation report influenced the decision, which meant that there had been “significant procedural unfairness in the decision-making process and … that injustice is likely to have made a difference to the fairness of the dismissal”.

¶19.5 Format and length Your report can take a range of formats, so long as it includes the key elements: your procedure, your

analysis, the evidence you have relied on (or your summary of it) and your findings. Your report may be only a few pages, or very lengthy. There are no set rules as to how long your report should be. Too short, and the reader may not understand how you have reached your conclusions. Too long, on the other hand, and the reader may find it unwieldy or unnecessarily detailed. The length of the report will be dictated by the number of allegations being investigated and the amount and complexity of evidence you collect in relation to each allegation. If you have only two short factual allegations with few witnesses and little supporting documentary evidence, then your report may only be a few pages long. For many detailed allegations, each containing multiple alleged facts, several witnesses’ evidence to consider and supporting documentation, conflicting evidence and procedural issues to describe, your report will be considerably longer. As the investigator, you must be succinct and focused in identifying what relevant evidence you have collected, how you have weighed it up and why you have made the finding you have made. Always ensure that you identify the evidence that you have relied on, as well as the evidence you did not rely on, and why. If the report’s findings are challenged, it will be difficult for the organisation to defend the findings if there is insufficient description in the report of the evidence on which you based your decisions. The following case demonstrates how important it is to write a clear report which identifies how you reached your conclusions. Case example In Raylene Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services [2012] FWAA 2713, although the respondent was told at the start of the investigation that she would be given the opportunity to respond to the allegations made against her, during the investigation two new allegations arose that were not part of the complainant’s written complaint. The investigator proceeded to make findings of fact about these allegations. The Commission found that there was no evidence anywhere in the investigation report of these allegations ever being put to the respondent. In addition, there was no corroborating witness evidence. Nevertheless, the investigator made findings of fact about them and used those findings to inform her recommendation that the respondent’s employment be terminated. The two new allegations were also referred to in the termination of employment letter. The Commission found that the investigator’s findings and her recommendation that the respondent’s employment be terminated were not justified on the evidence collected. In relation to the report in particular the following inadequacies in the report were found: • It did not state who was interviewed and what evidence was used to make the findings of fact. • It was inadequate to fail to identify the witnesses interviewed and what they said, and to simply write a summary of what they said. • It contained unclear and inadequate comments such as, “The interview with the respondent was not the sole source of information”, and “The investigator conducted interviews with several key witnesses and the complainant”. • The report did not particularise specific evidence or statements. • It could not be determined from the report if the investigator compared the evidence or statements of persons being interviewed with statements or evidence of the respondent. • It was not at all clear from the investigation report how the investigator reached the conclusions she did. The Commission observed that because of these flaws in the report: “There was no way of knowing how she reached the finding she did which was then accepted by the organisation and incorporated into the termination letter. The Commission found that in the absence of any specific evidence it cannot be relied upon as a basis for dismissal.” As a result of the flaws in the investigation process and report, the Commission found that: the organisation’s decision to terminate Ms Oui’s employment in reliance on that report was flawed; there was no valid reason for the respondent’s dismissal; the respondent was not provided with procedural fairness; and the organisation was in breach of its own code of conduct, in failing to treat the respondent fairly and honestly and abide by its code of practice, operational guidelines and human resource policies.

A sample investigation report template is available for complimentary download at www.worklogic.com.au/downloads.

¶19.6 Provision of draft reports Sometimes investigators provide a draft report to the relevant decision-maker for comment, prior to finalising it. There can be good and legitimate reasons to do so, because it can provide the decision-

maker or employer with the opportunity to: • seek clarification or more information about aspects of your findings that are not clear to them • ask for correction of minor typographical errors • ask for a change in format • ask the investigator to take a step that they have failed to do, for example, conduct a site visit or access evidence that the investigator was not aware existed • point out a contextual issue or an incorrect assumption, and • make sure the basis for the findings is clear and understandable. Whenever a draft report is provided, it is very important to make clear what is the purpose of providing a draft. Sending a report with a general invitation to provide any feedback or comments can create a strong perception of improper managerial or employer interference (or potential interference) in the independence of the investigator. If there is any suggestion that the draft was provided to enable the employer to change the findings, you will no longer be seen to be an independent investigator and your findings could later become indefensible. Therefore, if you provide a draft report, make it abundantly clear that the purpose is not so that the employer or decision-maker can direct a change to the findings in the report. Maintain absolute transparency about what feedback you received and any edits to the report that were requested, by keeping copies of your emails or covering letters about the draft report, the feedback you received and edits requested, and any edits you agreed to make, in case you need to defend your independence later. To make the purpose of the provision of the draft report absolutely plain, your covering email for a draft investigation report might read: “Please find attached the draft report of my investigation into Ms Bourke’s allegations against Mr Whatley. If you have any relevant feedback, please provide it to me by email by 4 April and I will consider it in my role as independent investigator. For example, you may wish to request more explanation about an issue raised in the report, or you may request a clarification. My role as fact-finder in this matter is a strictly independent one. Accordingly, if you provide any feedback about the findings or conclusions I have made, I may consider it but only in accordance with my role as the independent fact-finder. If I do not hear from you by 4 April I will send the report in final.” Sometimes, new evidence comes to light after the report’s completion which was not considered as part of the original investigation. In these circumstances, the investigator may independently consider whether the new evidence that has arisen should be considered (effectively, re-opening the investigation), taking great care to ensure that the parties are given an opportunity to comment on any new relevant evidence. While an instructor may make comment on a report, the investigator should take care not to be open to changing the findings in the report simply because the instructor doesn’t agree with them. The independence of the investigator is paramount. Any discussion around the findings of the report should ideally be done in writing to protect the investigator, the findings of the report, and ultimately, the employer from any later accusation that the findings in the report have been improperly influenced by the instructor or other people in the organisation. Occasionally, an instructor, a line manager or a decision-maker does not agree with the findings made in the report. They might disagree with the analysis of the evidence that went to making the finding of an allegation being proven or not proven, or simply have very fixed views about what happened, no matter what the evidence indicates. The instructor might feel embarrassed about things that have occurred in the workplace without their knowledge, or fear that the organisation’s failure to manage the risk of the misconduct has created legal exposure. There is no obligation on the instructor to agree with the findings

of the report, but the report must stand as the investigator’s impartial analysis of the evidence and allegations. The investigator is the person who made findings of fact based on the evidence; what the audience of the report thinks about the findings is entirely separate.

¶19.7 Executive summary If your investigation report is lengthy, you may be asked to prepare an executive summary containing an overview of the report’s essential information. The executive summary should be succinct yet thorough, to be read by those who are time-poor or who only need a high-level understanding of the case. It may also be provided to parties. In your executive summary, you should at least include the following: • The allegations you were instructed to investigate. • A summary of what evidence you collected (for example, “I spoke with the four night shift employees and reviewed the roster”). • Your findings of fact. • (Possibly) a very short summary of why the facts were found proven. • Whether any policies were breached and if so, which policies. • The recommendations, if any. Ensure that the language and tone in the executive summary is consistent with the full investigation report. The executive summary should be able to be understood in isolation, and should not refer the reader to sections or attachments located in the full report. Usually it is written last and is no more than a few pages in length.

¶19.8 Attachments to your report The documents, emails, photos, transcripts of interviews and the written complaint material that you have considered in making your findings of fact are all relevant evidence. In so far as you have considered this evidence and referred to it in your report, you should attach the evidence to the report so that the evidence you have relied on is available to the reader. If the matter is ever revisited in future, or your findings challenged, subsequent readers can find for themselves the evidence you have relied upon. In your analysis sections, you may need to refer to a specific email or section from a transcript, for example: “See page 25 transcript of interview witness with Ngaire Watson”. Throughout the report, use a consistent method to number and identify your documents. Key points • Investigations should be documented in writing. It is important to document your procedure as it needs to be able to support employment decisions and possibly withstand challenges or review in the future. • At a minimum, the report should describe the investigation procedure, the evidence you have relied on (or a summary of it), your analysis, your findings of fact and decisions about any breach of policy. • You might also include additional details such as issues arising during the investigation. • So long as you explain the key elements of the investigation, your report can take a range of formats. The length and format of the report may be determined by the nature and number of allegations, the amount of evidence and the audience for your report.

Case Study — Yellow Duck Limited — Episode 11: Decision-making and writing your report

In relation to Sam’s allegation that “Last month at a team meeting, I was presenting about a key client and I saw Marisa scratching herself then she smiled at Kim. She was obviously trying to put me off”, you have the following evidence: • Sam’s email containing the allegation (see page 47). • Sam’s evidence in interview (see the excerpt of transcript on page 353). • Marisa’s comments in her interview that “I don’t know if I scratched myself or smiled at Kim or not. It’s ridiculous. There’s no rule against smiling in a meeting is there? The one you should be worried about is Sam, he’s the one who yelled and stormed out for no reason”. • Two other people who were in the meeting room — David and Margaret — could not recall seeing Marisa scratch herself or smile at Kim. David and Margaret recall Sam yelling something at Marisa and leaving the room, approximately half way through the meeting. • Margaret said that she thought Sam left the room because his presentation was going so badly, and he appeared to be embarrassed and angry about that. You put this contradictory evidence to Sam, but he did not respond to it in any way. • Marisa’s comment as she was walking out the door of the interview “I only get itchy in hayfever season anyway, and I already took my anti-histamines that morning”. • Your own observation that Marisa and Sam seem equally credible in interview. Make a finding of fact about this allegation based on the evidence above, including making a comment and decision about Sam and Marisa’s respective credibility, and draft that section of your report.

SECTION 6 Personal and Organisational Well-Being Editorial information “We shall not cease from explorationAnd the end of all our exploringWill be to arrive where we startedAnd know the place for the first time.”T.S. Eliot, Little Gidding V, Four Quartets

Chapter 20: How to Remain Effective Under Pressure Responding to criticisms of your process and the outcome ¶20.1 Threats to sue the investigator for defamation

¶20.2

The emotional cost of workplace investigations

¶20.3

Tips to remain effective under pressure

¶20.4

Dealing with high conflict in workplace investigations

¶20.5

Effective investigative strategies in difficult investigations

¶20.6

Editorial information In this chapter, we acknowledge the emotional impact that workplace investigations can have on the investigator and explore how best to look after your own well-being. This ensures that you can maintain your focus, professionalism and “boundaries” throughout the investigation, and approach the next investigation with confidence and resilience.

¶20.1 Responding to criticisms of your process and the outcome Despite the best practice planning and rigorous adherence to procedural fairness as set out in this book, we acknowledge that your task as workplace investigator can still be challenging and, at times, uncomfortable. During an investigation, criticisms and pressure can come from many fronts. The complainant and respondent have high stakes in the outcome of your investigation. Both are keen for you to believe their version of events. If a party knows that their position is not strong, they may potentially try to undermine the investigation process, avoid participating altogether or lay the groundwork to challenge your conclusions later. Your manager or the board in your organisation may have a predetermined view about the outcome. They may possibly put pressure on you to make certain findings or recommendations. You may even come under pressure to change your findings after the conclusion of the investigation. Fairly or unfairly, you may also be criticised from a range of stakeholders. For example, you may be accused of failing to follow instructions, taking too long to complete the report, engaging in “scope creep” and considering evidence that others consider to be outside of the scope, or failing to take into account matters that others believe are relevant. It can be disheartening to receive this feedback, given the rigours of an investigation. It is important to consider such criticisms in order to ascertain what might need to be done to address any process concerns, now, or for future investigations. Where the criticisms go to the heart of your role as investigator and involve a challenge to the findings you have made based on the evidence you have collected, you must remain impartial and independent. Be prepared to stand by your findings and defend them, based on the evidence you have collected. You may need to defend your findings to an internal decision-maker, in an internal appeals process or in an external judicial proceeding.

¶20.2 Threats to sue the investigator for defamation Highly defensive and litigation-minded employees can use many legal arguments to try to disrupt or derail the investigation. Sometimes, parties will make threats to sue participants, or the investigator, for defamation, either as a genuine claim of perceived wrongdoing or to intimidate the participants or the investigator into withdrawing. You should be aware of the risk of being sued for defamation, even though in practice, this risk is very low.

Defamation is the act of harming the reputation of another by making a false statement to another (third) person. The act of defamation may be a false written or oral statement. Under uniform defamation law now in operation throughout Australia (see Civil Law (Wrongs) Act 2002 (ACT), Defamation Act 2006 (NT) and the respective Defamation Act 2005 in other states and territories), “publishing” includes written, spoken or illustrated material. The risk of defamation can arise when an investigator provides allegations to a participant, or shares evidence between participants, which could technically be construed as “publishing” defamatory material. In order to sue the investigator for defamation, the party would need to establish that the statement “published” was untrue, and the statement could have damaged their reputation. Words are defamatory when they convey a meaning (or “imputation”) about a person that lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.1 Examples of such “publication” throughout an investigation could include: • Reading out allegations made against a respondent to a witness during an interview. • Sharing evidence known to be irrelevant or inflammatory during the contradictory evidence phase. • Making findings or observations in the report where they are not supported by evidence, and so are without foundation or belief. In the event of a claim of defamation, the onus would be on the investigator to provide a defence. The most obvious defence to a claim of defamation is that the statement was true. Otherwise, “qualified privilege” may be argued by an investigator as a defence. The defence of qualified privilege allows free communication in certain relationships with immunity from an action for defamation, where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. Arguably, an investigator stands in such a position. However, to succeed in a defence of qualified privilege: • The communication must be necessary to the business at hand (ie necessary in order to investigate the allegations in question, and not to go beyond that). • The person making the statement must show that he or she has made the statement in “good faith”, believing it to be true. • It will be lost if it is proven that the publication was motivated by “malice”; that is, an intention to harm a person where the investigator knows that the statement is untrue. In order to protect themselves from the risk of defamation proceedings, therefore, investigators should keep the following guidelines in mind: • Only share information during an investigation that is necessary for the purposes of testing the allegations and making findings of fact. For example, during an interview with a witness, putting all the allegations to the witness, even though the investigator knows that the witness was not present for some of them, is risky, and not necessary for the purposes of testing the allegations. • During the “contradictory evidence” stage, it is necessary to put relevant contradictory evidence that may be relied upon in making findings to the respondent and complainant. Going beyond this (for example, putting contradictory evidence to a witness) has some risk, unless there is a defensible reason for doing so to test or clarify key evidence. • In the final report, including the investigator’s opinion or speculation about the character or past behaviours of a party is unnecessarily inflammatory and to be avoided, especially as it is likely tangential to the findings. Stick to the details of the specific factual allegations in question. • Discussing the relative credibility of the evidence of participants in relation to a specific allegation is necessary and appropriate, however, avoid making global and “personal” statements in the report

about an individual participant’s credibility or demeanour (such as stating the respondent “is a liar”). • With regards to the requirements of making statements “in good faith, believing it to be true”, when putting allegations to a respondent for a response, the investigator cannot be expected to believe in the truth of the statement (he or she is expected to maintain an open mind at this point). However, if the investigator knows at this point that the allegation is a lie, qualified privilege will be lost. Similarly, if an investigator makes findings or observations on evidence in a report knowing that they are untrue, or not supported by evidence, the defence will be lost. This underlines the importance for investigators to maintain fiercely their independence at all times, notwithstanding any pressure from a client, even a valued client (for example, a client who “encourages” or even openly agitates for a certain finding or result). There is simply too much at stake. Footnotes 1

See: www.lawhandbook.org.au/2020_11_02_00_defamation_and_your_rights/, accessed July 2020.

¶20.3 The emotional cost of workplace investigations Workplace investigators are sometimes exposed to anger, suspicion, rudeness or other negative behaviour from the respondent or the complainant, witnesses, and people who think they have a stake in the outcome. This is not unusual. The investigation process will usually be an unfamiliar and stressful experience for parties and this can manifest in poor behaviour directed at you. As a workplace investigator you can sometimes experience other difficult and emotionally challenging situations. These situations may include, for example, listening to descriptions of bullying or sexual harassment, having to view explicit sexual images, hearing details of conduct that is morally repugnant to you, witnessing the expression of strong emotions, experiencing challenges to your role and authority, dealing with deliberate manipulation of facts or aggressive behaviour, and/or accusatory language directed at you. In your role as investigator, you must remain objective and impartial in situations where people you interview may appear to have a disregard for the feelings of others, express views and attitudes that are discriminatory or belittling and who hold values, morals and ethical positions which are very different from your own. A long and involved investigation involving very serious unethical conduct can be demanding and stressful. Being exposed to participant’s traumatic experiences can lead to “vicarious traumatisation”, where the investigator starts to feel traumatised themselves after hearing about painful or horrific events. Because workplace investigators must maintain a professional and unbiased appearance in their interviews, they often mask their own emotional reactions when seeing others upset or acting in a way which is contrary to their own ethics. Investigators can then experience “cognitive dissonance” because of the strong dissonance between their own internal feelings of empathy, frustration or disgust, and the outwardly calm and neutral stance required of the impartial investigator. After a while, investigators who conduct many investigations may also develop compassion fatigue, in which they experience an extreme state of tension and preoccupation with the suffering of those whom they are helping. For all of these reasons, your well-being as the investigator is a valid and important consideration: both for your own health and safety, and your ability to conduct the investigation effectively throughout.

¶20.4 Tips to remain effective under pressure The following tried and true tips will help you to look after yourself and remain professional in your role as workplace investigator. Your own well-being

• Be aware of your own stress levels and emotional responses. • Build a strong foundation of wellness from sufficient sleep, healthy food, good personal and professional relationships, meditation, regular exercise and involvement in meaningful activities outside work. Spend time preparing for a potentially stressful situation • Before a potentially stressful interview or meeting, spend some time preparing yourself and thinking about what you might encounter. • Remind yourself of how you can practically address process challenges and manage aggressive behaviour (see Chapter 14). • Remind yourself that the investigation process you are following is planned and procedurally fair. Have confidence in the process and remember this issue is not about you personally. • Remind yourself that the person you are meeting may be upset, angry, blaming or helpless but that this is not your problem to solve. In the interview or meeting • Focus on matters that you can control. In your job, how participants behave when they are upset, angry and stressed is largely outside of your control so there is not much point trying to grasp control of those reactions. You can, however, control how you respond, what you do next, and how you choose to engage with such participants. • During the interview, if the participant becomes distressed or begins to cry, give them time and space to feel the emotion and express themselves. Do not try to hurry them along or change the subject. They are upset because the subject matters to them. While difficult to witness, responding empathetically and reasonably can build rapport and trust in the investigation process. It may ultimately lead to a more productive and less emotional participant. Acknowledge their emotion, saying, “I can see how painful/difficult/upsetting this is for you and that you are doing your best to explain this to me. You can take whatever breaks you need”. • Remain professional and calm even in the face of extreme emotion. The participant will pick up on your emotional state. Your composure can calm them, and they are more likely to mirror your behaviour back to you. Speak slowly and gently. It will lower tension. • Try to diffuse stress levels by making it clear how long the interview may take, how many more questions/allegations/topics you have or how much longer it will take. • Take breaks yourself, every hour. Say, “To get the best evidence, we need to take a break every [hour], let’s take a break now.” • You cannot and should not step into the role of counsellor or therapist, but you can have information about the employer’s Employee Assistance Program available. Mention that it is common for people in workplace investigations to use this service for support. Identify what other support is available if it is clear that the EAP service is not going to be used. • If a participant expresses an intention to self-harm, or to harm others, take action immediately and do a well-being check. Do not proceed with the investigation until the person has a medical clearance to participate and you are comfortable it is safe to continue. • If you are strongly triggered by a participant or experience a strong “fight or flight” response, remember to breathe, slow down and take a break. • Be aware of any antipathy you may develop towards a participant. Talk with someone else about it to maintain your impartiality.

After a stressful experience, it is helpful to share your experiences, while maintaining confidentiality, with a colleague. If possible, have regular debriefs during the investigation to ensure you have an opportunity to debrief with someone who is across the matter and can provide meaningful and responsive support. Talk to someone you can trust who can be empathetic and understand. The purpose of such debriefing is to express your own emotional response, not to discuss any of the interview content. Tell the debriefing partner how you feel about the participant’s conduct towards you, because you surely can’t tell any of the participants! If you are feeling distressed or in need of support, seek assistance from your Employee Assistance Program or a qualified counsellor.

¶20.5 Dealing with high conflict in workplace investigations Some participants in workplace investigations engage in behaviours involving extreme conflict and drama. Such dysfunctional behaviour can be devastating and very costly in any workplace.2 People who exhibit dysfunctional conflict, who manipulate and habitually attack and blame others without empathy while having no insight into how they are contributing to conflict in the workplace have been called “high conflict personalities”.3 Such people: “divert people’s energy from the real work of the organisation, destroy morale, impair retention, and interfere with cooperation and information sharing. Their behaviour, like a rock thrown into a pond, can cause ripples distorting the organisation’s culture and affecting people far beyond the point of impact.”4 Effective management of the participants’ difficult behaviours is a useful skill in workplace investigations. People who engage in such behaviours are more likely than the average person to be at the epicentre of long-standing workplace conflict. Such conflict may commonly lead to alleged behaviour you are then required to investigate. This is particularly the case with bullying allegations. Research suggests that high levels of conflict are particularly prevalent in workplace environments where high-level psychological triggers for aggression at work are present. Such triggers include: role ambiguity, micro-management, lack of support, unreasonable job demands, pay cuts or freezes and other triggers for uncivil, aggressive and abusive behaviour.5 Conducting a workplace investigation where the complainant or respondent exhibit “high conflict” behaviours has particular challenges, which need to be actively managed. This can be particularly difficult for an in-house investigator who is likely to have already intervened with one of the parties. Where conflict is long-standing and you or other managers have been involved in addressing that conflict, it is prudent to instruct an external investigator who can investigate dispassionately. High conflict behaviour in the workplace Perhaps not surprisingly, employees who engage in high conflict behaviours often get accused of bullying by co-workers. High conflict behaviours correspond very closely to the definition of bullying as defined by health and safety regulators, namely, persistent and unreasonable or negative behaviours that create a risk to another person’s health and safety. In other cases, the person with the high conflict personality may themselves be bullied by others, who exclude and isolate them because of their high conflict behaviours. The organisation’s attempts to manage an employee’s high conflict behaviours, ironically, can be a further source of escalating conflict, drawing in managers, HR and witnesses. For example, performancemanagement processes will often be derailed by their high conflict behaviour and the employee may blame others for their alleged poor performance or for their role in the conflict. It is worth being aware of the sorts of high conflict behaviours you may encounter in a workplace investigation — both as the subject matter of the investigation, and behaviours demonstrated by participants during the investigation itself. These include: • An inability to accept reasonable feedback.

• Making allegations that are verbose, emotive or exaggerated or poorly reasoned. • General incivility, aggression and disruptive behaviour during interviews. • Disputes over timing, logistics of interviews or progress of the investigation. • Interpreting questions put to them as a personal attack. • Taking a “victim” stance, and trying to invoke the investigator’s sympathy, approval and support. • Spending an inordinate amount of time in dispute, and seeming unwilling to “let go” of steps in the investigation. • Collating large amounts of documentary evidence of their allegations, in minute detail. • Overconsumption of your time and resources, even though you are trying to progress the investigation. • Self-absorption and self-aggrandising allegations and defences. • Little respect for others or acknowledgment of the effect of their behaviour on others. • Preoccupation with blaming others and putting others down. • Extreme emotional interpretations, and apparent exaggeration, such as, “This was the most horrific and offensive thing I have ever had to witness in my 30-year career”. • Complete denial of their own contribution to problems or responsibility for identifying solutions. • Enlisting other staff from inside and outside your organisation to support their views and to “go into bat” for them. • Extreme misinterpretations of others’ intentions, and jumping to negative conclusions about your actions and the investigation process. • Once the investigation is over and findings made, the focus on past actions proven may create further conflict. • A refusal to accept findings that do not support their allegations or defence. Should you encounter several of the above, consider and appropriately respond to the participant’s requests and claims, but stay on track. Do not let the participant corrupt the procedurally fair process you are applying. It can be helpful to remember that it is not your responsibility or role to solve the participant’s problems and to remain focused on the process. Allow the participant to express and “hold on” to their extreme responses, and notice them for your evaluation of the matter. Calmly refute any unfair criticisms of the investigation process or of your own actions as investigator. Recognise too that dealing with high conflict behaviour can be very stressful for you. Use the tips above to look after yourself and ensure that you can remain effective in your role. Making allegations in the workplace Complaint hotlines and organisation-wide programs which encourage the reporting of workplace issues early are a reasonably modern phenomenon. They are driven in part by identification and minimisation of health and safety risk and compliance breaches, as well as the goal of creating a productive and harmonious workplace. These processes and procedures are well understood and sometimes overused by employees with high conflict personalities who habitually blame others and misinterpret others’ intentions. Their concerns are often genuinely held and very intensely felt, but the merit of these complaints from the organisation’s perspective can sometimes be mixed.

Many workplace policies attempt to exclude unmeritorious allegations by including a short statement in the relevant policy along the lines of, “Vexatious claims will not be tolerated and may be the subject of disciplinary action”. Such a statement may not discourage those who do not recognise in themselves vexatious behaviour, and few workplaces are prepared to declare a complaint to be vexatious without conducting some form of investigation first. Even if you suspect that your organisation’s grievance and complaint processes may be being overused because of a high conflict person rather than a “real” issue requiring an organisational response, that party does have rights under those processes. Your investigation remains a very useful tool to enable the organisation and the parties to explore and test the allegations, hopefully before negative behaviours are entrenched and the damage becomes widespread. As a tool to deal with high conflict behaviours, the investigation can provide constructive outcomes including: • Identification of the real source of the conflict. • Understanding of the full story from the perspective of a number of employees (rather than just the employee who is engaging in high conflict behaviours, who is often the most vocal). • Making findings of fact based on reason and logic, using a procedurally fair and documented process. • Rational findings that are not contaminated by extreme emotions or information which may otherwise confuse the issue. In summary, an investigation involving participants who engage in high conflict behaviours is likely to be challenging. At the same time, it remains an excellent tool for finding out what is really going on in a rational and balanced way, without the distraction of emotion and angst. Distorted perceptions in the complaint document In complaints or grievances made by those who engage in high conflict behaviours, you may find that you are investigating distorted perceptions in which the reality of the situation is overstated, and there is a focus on blaming without evidence. You may find that supporting evidence provided contains great detail, voluminous secondary documentation of dubious relevance, and perceptions that are emotive, exaggerated and distorted.6 For example, a cognitive distortion that, “I feel that he is always following me, so he must be following me”, when investigated is an investigation of feelings rather than actual alleged behaviour. This is a pointless exercise for the organisation seeking to determine the truth. To address this issue: • Focus the scope of the investigation on the allegations of fact about which evidence can be collected. • Exclude from the investigation’s scope dramatic conclusions or emotive statements about the impact of the alleged behaviours. The organisation’s policy can, and should, permit the organisation to decide the allegations which you are to investigate. Investigation of distorted perceptions and half-truths Another challenge you may encounter is that much of the evidence you collect from a participant who is engaging in high conflict behaviours may be untrue, unfocused and highly coloured by emotion. If you begin to question the party’s version of events and challenge it directly with them, this is likely to create more conflict, deflect blame onto you and others, and potentially expand the scope of the investigation. The investigation may require double-checking of evidence against other documentary or witness evidence, driving the time required far higher than might be the case with a more credible witness. While all investigations require you to decide which of two versions of alleged events is believable or more plausible, on the balance of probabilities, if one of those parties has demonstrated high conflict behaviours, this step will be a great deal more complex and time-consuming. To address this issue:

• Do set reasonable limits on their input. • Give them deadlines for responses in writing. • Be confident to draw the line when you have collected enough evidence and the party has had a reasonable opportunity to put forward their evidence. Persuasive blaming of others A common high conflict behaviour is persuasive blaming of others. You might believe the high conflict party at first, until you identify contradictions or their claims become clearly incongruent with other evidence. If the complainant alleges, for example, that the performance-management process was motivated by revenge and to get rid of her, you may spend many hours collecting evidence about the legitimacy of the performance-management process, the justifications for it, the organisation’s processes and what happened in the meetings, only to find that there is no evidence at all for the complainant’s claims. Instead, it may appear that the complainant has demonstrated inappropriate, aggressive and difficult behaviours which were quite reasonably the subject of the performance-management process. Footnotes 2

See for example Dye v Commonwealth Securities Limited [2012] FCA 242 in which a staff member’s allegations of sexual harassment led to multiple internal investigations and police involvement. 94 days of Federal Court hearings ultimately found all allegations of sexual harassment to be deliberately false, and a costs order was made against her for $5.85m.

3

Bill Eddy, It’s all your fault at work: Managing Narcissists and other high conflict people (Unhooked Books LLC, USA, 2015); Bill Eddy, High Conflict People in Legal Disputes (Janice Publications USA Inc, 2008).

4

Roy Lubit, “The tyranny of toxic managers: Applying emotional intelligence to deal with difficult personalities” (2004) March/April Ivey Business Journal 1.

5

Karasek, R. A., & Theorell, T. (1990) Healthy Work: Stress, productivity and the reconstruction of working life. New York: Basic Books. Karasek, R. A. (1979). “Job demands, job decision latitude, and mental strain: Implications for job redesign”. Administrative Science Quarterly, 24, 285–307.

6

Similar findings were made by researchers of High Conflict Personalities at the State Services Authority, see Resolutions RTK, Practice Support for Managing Difficult Behaviours — Final Report (September 2010), State Services Authority (Victoria).

¶20.6 Effective investigative strategies in difficult investigations Skilled investigators can set up the process for the best possible outcome, even when dealing with high conflict participants. An expert in managing high conflict personalities, Bill Eddy, emphasises the value of an investigator learning how to recognise high conflict behaviours early and then communicating most effectively by: • Recognising that it is not your role to change the high conflict person. • Remaining calm, confident and firm. • Responding to misinformation early.

• Connecting with the participant with empathy, attention and respect. • Avoiding arguments or giving negative feedback. • Setting limits and consequences for undesirable or extreme behaviour. Remember that a procedurally fair investigation process as set out in this book will achieve much of the above. For example, during interview, you will listen to and understand the participant’s perspective and show respect and empathy, such as by offering breaks if participants become distressed. We discourage in any event the aggressive television-drama-style interrogation or arguing against the participant’s evidence. This approach is more likely to derail the process and escalate the conflict, potentially leading to allegations against you as the investigator. Conducting your investigation in a planned manner effectively sets limits on the time available for interviews or for the participant to provide information, and sets clear consequences for failure to participate within those timelines. If you suspect that you are being given inaccurate or exaggerated information regarding core matters, challenge that information with a series of further questions or by putting contradictory evidence to the witness in a calm and objective way. A procedurally fair investigation process should not be modified to accommodate a high conflict person. Indeed, to do so may be perceived to favour one party unfairly. Instead, remain consistent and professional with all participants, and adhere rigorously to your procedurally fair process. When dealing with a high conflict personality, the process is your guide more than ever. Key points • Workplace investigations can be taxing on the investigator. Challenging and drawn out cases can cause the investigator stress, cognitive dissonance, compassion fatigue and vicarious traumatisation. Look after yourself throughout an investigation. • Manage the logistics of the interview in order to protect your own safety. • To stay effective under pressure, be aware of your own stress levels and emotional responses. Remind yourself that the person you are meeting may be upset, blame others, or appear helpless, and that this is not your problem to solve. Acknowledge the participants’ emotion, but do not become personally involved. • Debrief with a counsellor if possible, or a trusted support person. • High conflict behaviours can place strains on the investigation process and on you as investigator. When confronted with high conflict behaviours, remain calm, confident and firm. Set limits and consequences for undesirable behaviour. Rely on the process, and stay focused on the facts.

Chapter 21: Now that You Have the Facts … Finding the facts: The easy part?

¶21.1

Avoid common post-investigation pitfalls

¶21.2

Immediate steps

¶21.3

Longer term steps

¶21.4

Post investigation — Aftermath or afterglow? ¶21.5 Conclusion

¶21.6

Editorial information The investigation has concluded, the facts of the matter have been established and, if within your scope, you have determined whether the respondent has breached any policy, code of conduct or organisational value. Where to from here? While it can be a relief for the investigator to have an investigation concluded, the findings of fact and assessment of policy breach are only one part of the organisation’s decision-making about the case, and its management and support of everyone involved. What happens next is very important, not only for the parties who await the outcome of the investigation, but also for their managers, their colleagues and the organisation as a whole. The organisation needs to decide whether any disciplinary consequences should result. The employees involved need to learn how to work together again. A broader work team may need to regroup, refocus and learn from the events. The organisation has a chance to pause and reflect — why did this happen? Why was a formal investigation necessary, rather than the matter being resolved at a local level informally? What steps can the organisation take with regard to its own systems and processes, in response to this event? If poor interpersonal behaviour has occurred, what can the organisation do to improve the workplace’s culture and behaviours for everyone?

¶21.1 Finding the facts: The easy part? To determine the facts of what actually happened may be straightforward, if you follow the process in this book. There are steps to follow, rules to apply and judgments to make. Usually, you will have collected and assessed all the evidence, and the weight of the evidence will indicate whether the allegations are proven or not. Assessing the proven conduct against the policy determines whether a breach has occurred. Once the decisions have been made and the report has been written, the next steps — including communicating the outcome to the parties — can be far more complex. They can be challenging and political. They often involve giving bad news, having difficult conversations and conflict. They require an ability to assess the individual employees’ positions, as well as the team dynamic as a whole. In many organisations, the disciplinary process has an appeals option. In general this allows a person found to have breached a policy for which a serious disciplinary sanction is proposed, to have the case reviewed by a higher authority. Grounds for appeal may include: • Evidence that the organisation’s processes and procedures were not properly adhered to, in handling the matter. • Evidence that the investigator or decision-maker acted with bias.

• Evidence or argument that the disciplinary penalty proposed is not appropriate for the level of breach determined. • New information that may change the facts found in the investigation. • Argument that key information provided was not properly considered. • Information of further context that may affect the decision with regard to the appropriate level of penalty. Some organisations allow a person facing termination of employment the opportunity to argue before a senior manager or panel of reviewers why that penalty should not be imposed. It is also common that the request for appeal will ensure that a third party will review the investigation report and supporting documents to confirm that the report conclusions drawn were sound and substantiated by the evidence, or to overrule them. Some organisations do not permit an employee to challenge the investigation outcome unless they have identifiable new evidence or they can explain why the conclusion drawn was improper on the basis of the evidence provided. To uphold fair process, and out of respect for investigators and all other parties involved in investigations, it is important that the appeals process is clear in terms of who can use it, in what time frame, in what circumstances, what information will be considered or reconsidered in the process and who will be involved in hearing an appeal or reviewing a matter. Challenges to investigation outcomes Once you have written your report and provided it to the instructor or internal decision-maker, there are several possible consequences. The first is that the instructor, the employer and the parties accept the findings of the report (whether or not they agree with them). The organisation will then commence the task of determining the consequences, if any, that arise from the findings of the report and in getting the team to work together effectively again (discussed later in this chapter). There is also the possibility that the findings of the report will be challenged by the instructor, the employer and/or one of the parties, either internally or with an external body. Challenges to investigation outcomes by the instructor or employer As discussed in Chapter 19, “Provision of draft reports”, the investigator sometimes issues their report in draft form for comment from the instructor before the report is issued in final. If the instructor or employer objects to the investigation process or its findings, having read the draft or final report, consider their objections but make sure to retain your independence and impartiality at all times. In extreme cases, the instructor or employer might disregard the findings of the report and take disciplinary or other action in relation to the allegations which, on the basis of your fact-finding, is not justified. Such actions are the responsibility of the employer. Know that you have done your fact-finding job properly, and keep a distance from the employer’s later choices. If asked by the parties, the union, the media or anyone else about your opinion of the employer’s subsequent actions, decline to comment. Challenges to investigation outcomes by the respondent External challenges to investigation outcomes can come in several jurisdictions.1 The investigation report is commonly produced by the employer as part of its defence of legal action taken by an employee, subject to legal professional privilege. Challenges to investigation outcomes made by the respondent are usually made in the context of the decision-maker assigning consequences to the behaviour that have been proven in the report. Where allegations are proven, the decision-maker might decide to discipline the respondent in their employment, for example by withholding a salary increment, demoting the respondent or even terminating their employment with or without notice. Challenges under Unfair Dismissal Laws

The most common challenge to an investigation report comes in the context of unfair dismissal proceedings taken as a result of a termination of employment. Under the Fair Work Act 2009 (Cth), a dismissed employee who is entitled to be protected from unfair dismissal under that act may apply to the Fair Work Commission (“Commission”) for a determination that the termination of their employment was unfair. In considering this, the Commission will consider if the dismissal was harsh, unjust, unreasonable or a combination of those three elements.2 In general, a workplace investigation report will be used by an employer to defend against claims that the dismissal was unreasonable or unjust. That is, the report will be relied on to show that the employer reasonably determined that the employee was guilty of the behaviour which resulted in the termination of their employment, that the process undertaken was procedurally fair and thorough, and that there was sufficient evidence to support the conclusions reached by the employer in making the termination decision. Conversely, the respondent might challenge the investigation process and argue that its findings of fact were not a reliable basis on which the employer could terminate their employment. At an unfair dismissal hearing, the Commission makes its own decision on whether the termination, on the facts at the time of the dismissal, was harsh, unjust or unreasonable. This means that the Commission hears evidence from witnesses and may draw different conclusions than those drawn by the investigator. Case example In Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra [2019] FWC 464, Mr Crowley had been employed as a Health and Physical Education teacher at a Catholic Secondary school in Pambula, NSW for 17 years. During November 2017, Mr Crowley took a group of 14- and 15-year-old students on a kayaking practical class at a local river. During the class one of the kayaks capsized, followed by others, including Mr Crowley’s kayak. Subsequently, the ambulance and the police attended the scene. All students were driven home after the incident, except one who was taken to hospital and diagnosed with a concussion. The school conducted an initial preliminary investigation and determined to engage an external investigator to conduct a full investigation. The investigation involved interviewing the children on the trip and concluded that all seven allegations against Mr Crowley were substantiated. Following this investigation report and a review of those findings, the Archdiocese drew the conclusion that Mr Crowley had engaged in serious misconduct, and terminated his employment. The Fair Work Commission reviewed the external report, including the transcript of interview with the student witnesses. The students also gave evidence before the Commission. The Commissioner appeared to endorse Mr Crowley’s submission that the external investigator had “led”, “very heavily”, the evidence of the students, noting that often when a student’s answer appeared to support Mr Crowley’s version, or appeared to “not really follow the line in which the investigator was tracing in his leading questions, the investigator either [shut] down the questioning or steers it off in a different direction” (at [40]). In light of these observations, the Commission noted that it was unsurprising that the students’ evidence in the Commission differed to that which was originally relied upon by the Archdiocese. The Commission noted (without criticism) that in the Commission proceedings the students’ recollection of the incident was at times vague and unclear, commenting though that this was unsurprising given the passage of time since the incident, the chaotic and frightening nature of the incident itself and the daunting and intimidating nature of the courtroom experience. In these circumstances, the Commission preferred the evidence of Mr Crowley and the other teacher to the extent there was any inconsistency with the evidence of the students at the hearing. The Commission went on to find Mr Crowley’s dismissal “unfair” on a number of grounds, relevantly determining that the matters found substantiated by the Archdiocese were not substantiated on the evidence presented at the Commission. The Commission ordered that Mr Crowley be reinstated to his position.

Challenges under the enterprise agreement Many enterprise agreements contain clauses which relate to workplace investigations as part of their provisions on dealing with disputes or dealing with employee misconduct. The nature of the clauses range from contemplating that the employer will conduct a workplace investigation in circumstances of wrongdoing by an employee, to setting out a detailed process to be followed when conducting workplace investigations, including timeframes for how long an investigation should take to complete after allegations have been received by the respondent. Of course, where relevant provisions are contained in an enterprise agreement, they should be followed. To fail to do so would be to risk challenge under the provisions of the Fair Work Act 2009 (Cth). However, the legally binding nature of clauses in an enterprise agreement — coupled with the unpredictable nature of workplace investigations and the vital importance of procedural fairness — make

any detailed prescription of investigation process a frustrating and impractical inclusion in an enterprise agreement. The nature of workplace investigations is that they are dynamic and need to be responsive to the evidence; investigations may take the investigator on several twists and turns. Above all else, the investigator must make diligent and reasonable enquiries, accommodate the special needs of participants, and conduct the investigation in a procedurally fair way. If an enterprise agreement contains provisions that are too prescriptive, the organisation might be in the invidious position of choosing between abiding by the provisions of the enterprise agreement or conducting a procedurally fair investigation. Adverse action The General Protections provisions of the Fair Work Act 2009 (Cth) provide (among other things) provisions prohibiting adverse action. Adverse action is taken when an employer dismisses the employee; injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice; or discriminates between their employee because of reasons which include that employee has exercised (or proposes to exercise) a workplace right. In order for the protection to come into effect, the adverse action must be taken because of the protected reason. For example, if an employee was dismissed because he applied for sick leave, then it is likely that this dismissal amounted to adverse action. If, however, an employee was dismissed after applying for sick leave but the employer is able to show evidence that the dismissal was because the employee had engaged in serious misconduct, then the employee was not dismissed for a protected reason and the claim on adverse action will not be made out. Under the General Protections provisions, a rebuttable presumption of intent exists. This means that if it is alleged that an employer treated an employee badly due to the employee having exercised (or proposing to exercise) a workplace right, then, unless the employer can then prove otherwise, it will be assumed that the employer did so act towards that employee for a prohibited reason or intent. A workplace investigation report can be used in defence of a claim of adverse action and to rebut the presumption of intent. That is, a workplace investigation that established the occurrence of serious misconduct (for example) on the balance of probabilities will help the employer to rebut the presumption that the action was taken for a protected reason. In addition to this, the employer’s decision to conduct a workplace investigation can be in itself the source of an adverse action claim. It is clear that even a properly conducted investigation brought in good faith may alter the position of the employee to their detriment, therefore bringing about a claim of adverse action.3 The decision to commence a workplace investigation can be challenged under the General Protections provisions if the employer cannot rebut the presumption that the workplace investigation was not instigated for a prohibited reason. It is important therefore that the reason for commencing a workplace investigation is carefully considered, and that the decision to investigate is not made because of any protected reason under the Fair Work Act 2009 (Cth). In the workplace investigation context, these risks particularly arise where an employer seeks to investigate an employee’s wrongdoing in the course of that employee having made a workplace complaint.4 In these circumstances, it may be wise to seek legal advice before commencing the investigation. Other challenges by the respondent We have also seen the respondent challenge the instigation or outcome of an investigation on the basis that it amounted to: • bullying of the respondent, in breach of the anti-bullying provisions of the Fair Work Act 2009 (Cth)5 and state occupational health and safety legislation, not being “reasonable management action” (see Chapter 4), or • discrimination against the respondent, for example due to their union membership or their race, in breach of state or federal discrimination legislation and the General Protection provisions of the Fair Work Act 2009 (Cth) (see Chapter 4). Challenges to investigation outcomes by the complainant

Complainants’ challenges and criticisms of investigation outcomes are far less visible to the outside world, as the complainant is very unlikely to be disciplined after an investigation and therefore less likely to take action in court. Some ways we have seen complainants try to challenge the outcomes of an investigation include claims that: • the employer has breached its own policy or procedure, and/or the employee’s employment contract, by not following the rules they contain about the conduct of investigations, the rights of employees in disciplinary proceedings, or other applicable rules • the investigation was insufficiently thorough, in an attempt by the employer to sweep the issue under the carpet • the complainant’s version of events was unfairly disregarded out of discrimination against the complainant — such as the male respondent being assumed to be more credible than the female complainant — in breach of state or federal discrimination legislation, and • the complainant was not given a reasonable opportunity to participate in the investigation (such as being given insufficient time to respond to contradictory evidence), because of their illness, disability, heavy work commitments, availability for in-person interview or other personal factors. Consequences of challenges to outcomes Confidentiality As discussed in earlier chapters, the observance of confidentiality of the information collected in the investigation — by the investigator and the parties — is very important. Part of the initial contact with witnesses is to explain the importance of keeping the investigation confidential and that their evidence will be kept as confidential as possible. If the subject matter of the investigation reaches court, then the employer has very little control over whether the evidence contained in the report will remain confidential, unless the investigation was covered by legal professional privilege. As a result, it is important that when making undertakings of confidentiality at the start of an investigation, the employer ensures that witnesses understand that the matters will be kept confidential except as required by law. Ongoing uncertainty The control of gossip and speculation in the workplace is almost impossible. Cases that are unresolved can leave teams and managers in limbo, with the spectre of conflict and litigation hanging over them. While litigation is underway, for months or even years, employers can feel stymied to take action in making promotions and appointments, staffing projects and structuring teams. Reinstatement A successful challenge to a workplace investigation in the unfair dismissal jurisdiction may have the consequence that the employer’s decision to terminate the respondent’s employment is overturned, in which case the employee can be reinstated to their employment. In these circumstances an employer is faced with real difficulties in managing a team that is fractured and damaged, and in effectively supervising the reinstated employee who claims moral high ground. Re-investigation Another possibility that arises from a successful challenge of a workplace investigation is that the employer may be ordered to conduct another workplace investigation of the same factual circumstances to re-test the allegations. If an internal investigation was found to be procedurally flawed, the anti-bullying provisions of the Fair Work Act 2009 (Cth) enable the Commission to make orders for the employer to follow its own policies and conduct an independent and procedurally fair investigation. While handling such consequences of challenges to the investigation outcomes, employers need to hold the course. With advice from legal counsel (if litigation is threatened or underway), human resources and communications advisors, employers should be able to continue to manage the business and the staff

with the confidence that they ran an investigation that is defensible, and that their decisions will withstand legal scrutiny. Footnotes 1

For a very comprehensive look at the intersections between workplace investigations and Australian laws, see Adriana, O. — “Unsystematic and unsettled: A map of the legal dimensions of workplace investigations in Australia” UNSW Law Journal, (2019) 42(3) p 1075.

2

Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995) at para 128 (McHugh and Gummow JJ), [(1995) 185 CLR 410 at p 465]. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

3

See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 per Murphy J at para 97. “The respondents’ argument largely boils down to the proposition that when an employer conducts, in good faith, a fact finding investigation into allegations of employment related misconduct, that action cannot constitute adverse action. However, contrary to this submission, the authorities indicate that a properly conducted investigation brought in good faith may nevertheless give rise to a deterioration in the employment advantages enjoyed by the employee, thereby constituting adverse action”.

4

Murray v The Peninsula School [2015] FCA 447.

5

Section 789FF.

¶21.2 Avoid common post-investigation pitfalls Well over a decade of experience has proven to us that once the investigation is complete and the findings have been communicated to the complainant and respondent, some employers feel that the matter is “over”. They have been so focused on the disciplinary element, and the policy requirement that an investigation is conducted, that they feel that “the case is closed”. This is often due to: • A sense of “closure” at the findings of fact — “I know what happened now”. • A sense of relief that the findings weren’t worse — “At least I don’t have to call the insurer/police/ombudsman”. • A compliance-only approach — “The policy only requires that I ensure an investigation is conducted, not that everyone is happy about it”. • Division of responsibilities between human resources, risk, legal and mid-level management — “It’s my role to ensure that the risk is managed — it’s the line manager’s job to get everyone back on track as far as team dynamics and productivity”. • Avoidance of the non-urgent work of repairing relationships, improving the broader culture of the team and the workplace as a whole — work which requires tenacity, careful judgment, and possibly more

investment. These feelings are all completely understandable — we all know the relief we feel after we’ve completed a complex investigation report. This is not a time, however, for a “laissez-faire” attitude. After a workplace investigation, employees need active, engaged and directive leadership. Managers who take a laissezfaire approach because they wish to abdicate responsibilities, or take the path of lower effort or avoid dealing with messy emotions cause detriment to their team who will be looking for a change in the dynamic and in how employees are behaving. After a complaint and investigation, passive management also sets a damaging precedent that: • Employees should sort out their interpersonal problems by themselves. • The employer accepts the poor conduct and therefore breaches of the employer’s values. • The team’s feelings of hurt, neglect and frustration don’t matter. • It is not worth making complaints or participating in workplace investigations, as nothing ever changes. • The lower productivity and higher turnover that can result from ongoing problems isn’t of concern to the employer. All of this can allow a toxic team environment to fester. It is worth keeping in mind the ways in which some organisations make strategic errors after an investigation. In this way, you can know what to avoid. Delay Firstly, if the organisation does not promptly review the findings of the investigation and respond, momentum can quickly be lost. Delay at this stage is very stressful for the parties and can introduce a procedural flaw, in an otherwise procedurally fair investigation. Case example In Subeg Singh v Sydney Trains [2019] FWC 182 (21 June 2019) , Mr Singh, a long-standing employee claimed that he had been unfairly dismissed when he was terminated from his position as a team leader with Sydney Trains, following his involvement in two serious safety incidents in August 2015. Sydney Trains had conducted a number of safety investigations into the incidents and based on their findings, undertook a further disciplinary investigation into specific allegations of misconduct against Mr Singh. Mr Singh was suspended on full pay for the duration of the investigation period. The allegation of failing to follow safety policies and procedures was proven and Mr Singh was asked to “show cause” as to why he shouldn’t be dismissed. His employment was ultimately terminated on 30 November 2016. Mr Singh was offered the opportunity to be interviewed as part of the disciplinary investigation and once the “show cause” letter had been sent, but elected not to participate. His union provided responses on his behalf. Deputy President Peter Sams found that Sydney Trains did have a valid reason to terminate Mr Singh’s employment. When considering the fairness of the dismissal, he noted that Mr Singh’s non-participation in the disciplinary interview did not support a finding of unfairness. He did, however, express real concern about the length of time between the incidents and Mr Singh’s dismissal, stating, “I cannot accept that it is in the interests of justice, or in the public interest, to have a period of over 16 months between related incidents on a single day, to Mr Singh’s dismissal.” He further noted that delays of such length “will invariably test the memories of witnesses to the incidents, which of themselves were a matter of only a few minutes’ duration.” He was also concerned about stress, anxiety and uncertainty that such delays cause for employees awaiting the outcome of disciplinary processes and recommended that Sydney Trains and the relevant unions review their investigation processes and disciplinary procedures.

Prejudgment Problems can also arise when the people who instigated the investigation had a preconceived notion of the outcome, and communicated with others on that basis. Their opinion might already have leached into the organisation more broadly. When the factual findings are not as expected and do not justify the previously assumed outcome, decision-makers can feel a sense of frustration and powerlessness, and find it difficult to retreat from the path they hoped to take.

Case example Mr Wunungmurra was employed by East Arnhem Regional Council as a community night patrol officer. The Council alleged that on a number of occasions he incorrectly filled in his timesheets (for work he had not done), and eventually terminated his employment. Mr Wunungmurra made a successful unfair dismissal application: Ross Wunungmurra v East Arnhem Regional Council [2018] FWC 6808. Commissioner Bissett found that firstly, the timesheet transgressions did not amount to a valid reason to dismiss Mr Wunungmurra. However, she also said that even if they were, Mr Wunungmurra was not accorded natural justice on the basis of the following factors: • The final warning letter he was given did not specifically list the timesheets that were alleged to have been dishonestly filled in. • The termination letter given to him at a subsequent meeting several months in relation to other alleged attendance and timesheet issues had been prepared by the CEO prior to that meeting, and therefore it was evident that nothing that Mr Wunungmurra could say in response to the allegations in this meeting would change the fact of his dismissal. • Mr Wunungmurra was not given a proper opportunity to have a support person present in either of two meetings he attended in relation to timesheet issues. While he was not specifically denied a support person, she was not satisfied that he was ever aware that he might need one.

Not substantiated [nE ] no issue When the allegations of fact are not substantiated, some organisations breathe a sigh of relief and assume that the problem has been fixed. This overlooks the fact that something may not have been quite right in the first place. For example, it may be that an employee made and maintained formal allegations without sufficient grounds or sufficient understanding of the behavioural standard (the definition of “business ethics”, for example), or that the allegations were not proven but the decision was “line-ball”. Communication An organisation’s post-investigation response may also be marred by poor communication. Witnesses are often not informed of the outcome, and are left wondering how the issues have been dealt with. Secrecy is often imposed with good intention, to protect the privacy of the participants. This can ultimately lead to an overriding impression, however, that the organisation has not taken the investigation seriously, or has tried to “sweep the matter under the carpet”. Disgruntled complainants and respondents Most importantly, if both the complainant and respondent remain in the workplace and continue to interact in some way (whether in a supervisory relationship or otherwise), the fact that one has been proven “right” and the other “not” will do little on its own to improve their working relationship. It may, in fact, make their relationship worse. One person may possibly have an over-inflated sense of justification and the other may feel angry at the perceived injustice of a finding they cannot accept. These risks mean that the organisation’s decision-making and communication is as important as the investigation itself. A good way to work through the various considerations is to ask a series of questions: some procedural, others strategic. All have, at their heart, a genuine intention to support the employees, enforce and affirm the organisation’s behavioural standards and improve the workplace culture for all.

¶21.3 Immediate steps If there has been a breach of policy, what are the appropriate consequences? If some or all of the allegations against the respondent were proven and the respondent has breached a policy, either you or another manager will need to consider whether there should be any disciplinary consequences. Most policies give discretion regarding consequences for a breach. The decision-maker at this stage will need to determine what, if any, disciplinary step is appropriate in this case, possibly in consultation with the relevant line manager. If the respondent is already subject to a performance-management plan then this may need to be adjusted.

No breach of policy In some cases, while parts of the allegations are proven, the behaviour complained of may not be of sufficient seriousness to constitute a specific breach of policy. Nevertheless, it is important in such instances that a discussion is had with both the complainant and the respondent to explain that although no formal disciplinary action will occur, the organisation will not ignore the proven conduct. For example, the behaviour may be generally unprofessional or goes to the respondent’s performance in their role. In those conversations, you can explore what can be done to ensure that the parties can continue to work together effectively and productively in future. If the allegations are unproven, this does not mean that the organisation needs to do nothing further. Allegations, even if unproven, may be reflective of some deeper cultural issue. The investigation will often expose problems in workplace dynamics or reporting structures, which impair people’s ability to work together constructively. Respond to vexatious complaints In some cases, the investigation may raise questions about the motivation of the complainant. Where allegations are unproven and there is evidence that the complainant did not make the allegations in good faith or in a genuine belief in their truth, the organisation may consider that the complainant has been vexatious. Many employment policies explicitly forbid the making of allegations in bad faith or unfounded allegations. Organisations must of course tread carefully in their dealings with the parties both during and post the investigation. There are victimisation provisions in most state and federal laws governing employees’ and employers’ conduct, including workplace health and safety laws and discrimination laws. The Fair Work Act 2009 (Cth) provides that a person (including an employer) must not take adverse action against a person who has a workplace right, has exercised a workplace right or proposes to exercise a workplace right. “Workplace right” has a very broad meaning. For example, a person has a workplace right if he or she has an entitlement under an award or agreement or a workplace law, is able to initiate a proceeding under a workplace law or is able to make a complaint or enquiry in relation to their employment. Workplace right can include their participation in a process under the organisation’s employment policies, such as a misconduct investigation. Adverse action includes dismissing or refusing to employ someone, and injuring them in their employment, for example, by subjecting them to disciplinary action. Be very careful that disciplinary action or other potentially “adverse action” is not taken because the employee made or responded to allegations, or otherwise participated in the investigation process. In general, an employer may not take adverse action against someone for raising a complaint or participating in an investigation process. The employer would need to have solid evidence of malicious intent before pursuing an employee for making a vexatious complaint (for example, if they are proven to have fabricated evidence or pressured colleagues to lie). Case example In Linda Hanrick v Meridian Lawyers [2018] FWC 3256, Ms Hanrick, a legal secretary unsuccessfully claimed she had been unfairly dismissed from her employment at a national legal firm. Ms Handrick made a complaint of bullying against a number of employees of the firm. An investigation was undertaken by a principal of the firm, Ms Wellard, which examined not only Ms Hanrick’s allegations but also a complaint received from a senior staff member against her. The investigation found that there was no evidence whatsoever to support Ms Hanrick’s allegations. A further meeting then took place in which it was put to Ms Hanrick that the firm believed that she had “deliberately made a false bullying claim”, and asked her to respond to this. In a final meeting, Ms Wellard told Ms Hanrick that she had determined that Ms Hanrick had in fact made a false claim, that the firm was considering terminating her employment, and asked her to respond. At this point Ms Hanrick made a number of new allegations against both Ms Wellard and other employees. The allegations were all found to be entirely baseless. After this final meeting, Ms Hanrick was summarily dismissed for serious misconduct. Ms Hanrick filed an unfair dismissal application, which was dismissed by Deputy President Sams. He agreed that on the evidence, all of her allegations had been fairly investigated and found to be false and unbelievable. In relation to the later allegations brought by Ms Hanrick, he agreed with Ms Wellard’s submissions that, when it appeared her own original allegations were not sustainable, and when she understood her position was in jeopardy, Ms Hanrick raised more new allegations. DP Sams also said that the steps taken by Ms Welland (on behalf of the firm) in relation to investigating the allegations, and in addressing the firm’s allegation against Ms Hanrick that her claims had been falsely made, were reasonable in the circumstances.

They ensured that Ms Hanrick was provided natural justice and that her dismissal was fair, just and reasonable in the circumstances. In particular, the following steps were noted: • at the start of the investigation, Ms Wellard had advised Ms Hanrick that if, after a formal investigation, she was found to have made a false complaint, it might lead to disciplinary action, including dismissal • Ms Wellard spoke to all the people whom Ms Hanrick had raised in her complaints, and some others • rather than a hasty decision to end her employment, Ms Wellard met with Ms Hanrick on three occasions • Ms Hanrick was given a number of opportunities to respond and she did so • in particular, Ms Wellard provided three opportunities to Ms Hanrick to respond to the allegation that she had made false claims of bullying, and • Ms Hanrick had a reasonable period of time of two weeks to reflect on her allegations and to withdraw her allegations. Her failure to do so, and in fact to add new allegations, meant her conduct was incompatible with the continuation of the employment relationship.

The following steps should be followed by employers when responding to suspicions that a workplace complaint has been made vexatiously or falsely: • at the start of the initial investigation of an employee’s concerns, employers should advise the employee that if it is later found that they have made false or baseless claims, they may face disciplinary action, up to and including dismissal • properly investigate the employee’s allegations first, and make findings in relation to those allegations, before turning attention to the issue of whether or not the complaint was vexatious • ensure the original investigation is procedurally fair • conduct a second, separate and procedurally fair investigation to examine whether the complaint was vexatious: after the investigation of their complaint is complete, put the allegation to the employee that they have made a false complaint, and then allow them an adequate opportunity to respond (in the Hanrick case, this second ‘investigation’ was short, and essentially consisted of a further meeting with Ms Hanrick and an opportunity to provide a response to the new allegation), and • in order to minimise the risk of any perception of bias, ideally this second investigation concerning the alleged vexatiousness should be undertaken by another individual, at arms-length from the first investigation. Who should communicate the outcome If external investigators are used, a separate decision-maker within the organisation must consider the investigator’s findings and make their decision about next steps, and then communicate the outcome to the parties. If you are an internal investigator, and there are adequate staff to do so, again, ideally a separate decision-maker within the organisation will make the decision about next steps, and communicate the outcome to the parties. If, however, you are the internal investigator and also tasked with informing the parties, make it clear to the parties that your role as investigator is now over. In your role as decision-maker, you are now informing the parties of the outcome of the investigation and the organisation’s next steps in response to the findings. Clarity about your role when reporting the outcome to the parties will assist the parties to understand that the findings of fact in the investigation are not open for discussion or change at this time. How should the outcome be communicated? The hallmarks of a successful communication about the outcome of the investigation is that parties are provided with enough information, in a face to face meeting, to: • understand the findings of fact that have been made

• understand that the process was thorough • understand their perspective was given a fair hearing, and • be able to accept the outcome. As to what documentation should be provided at the meeting, as discussed in Chapters 6 and 19, in some cases a verbal report will be adequate. In others, a summary document listing the allegations and the findings is sufficient. In other cases, a copy of the report (ideally redacted to protect confidentiality) may be provided. In practice, most organisations elect not to provide a copy of the full investigation report to the parties, unless their policy or enterprise agreement requires that this happen. In our experience, when the full report is provided, sometimes a party may go through the report “with a fine-toothed comb”, dissecting minute matters they disagree with, and feeling more frustrated than they would have been had they been given just the specific findings of fact that have been made. This can also create more tensions in the workplace, as the parties find out exactly what their colleagues said in the investigation. It also materially increases the possibility of victimisation of witnesses, and discourages witnesses from speaking frankly or participating at all. Most commonly, you, or the relevant decision-maker, will inform parties of the findings of fact and debrief about the investigation process verbally in a meeting. Whatever method is chosen, if the organisation has decided to take disciplinary action, provide enough information to the parties to substantiate the action which the organisation will take. Your communication style will be dictated by whether the outcome involves high risk for the organisation where stakes are high or a party has already indicated legal action or, alternatively, whether the main focus is on containing fall-out, the latter being more common. Typically the complainant and respondent will be briefed separately and verbally. You want them to understand and (ideally) accept the outcome but not get distracted by the detail. Tailor the content differently for each. For the respondent inform them of the specific facts that have been found proven against them, if any, and how they breached policy and what will happen next. The level and formality of the written detail included will increase if the consequences were severe, and decrease if they were not. For the complainant, confirm verbally what has and hasn’t been found proven, broadly why, and what will happen next. Even if a complainant is likely to be upset and angry if some or all of their allegations are not proven, do not leave them with the false impression that their allegations have been found proven, if they have not. Going back into the workplace with a false understanding that their complaint was proven will almost certainly create further problems and misunderstandings between the parties in the future. After explaining the outcomes in this conversation, focus on “go-forward matters” and on big-ticket items. You don’t want to invite a debate about the findings. Verbal feedback might be, for example: “The investigation has found that it is proven you engaged in the behaviours alleged in relation to allegations 2, 3, 5 and 7. The investigation has found that these behaviours were repeated, posed a risk to health and safety and were unreasonable in the circumstances. On that basis I have found that you breached the Workplace Behaviours Policy because the proven behaviours match the definition of bullying.” Any allegations found not proven would be covered by: “None of the allegations of fact against you were proven, so the investigator found you have not breached the relevant policy”. In addition to the face-to-face meeting, some employers will also provide each party with a letter that states the outcome of each allegation (substantiated, partly substantiated or not substantiated), together with a few sentences which state the reason for the outcome. For example: “I have found that allegation 4, ‘Chao sent me a sexually harassing email on 4 July 2013’, was not substantiated. Chao did send you an email on 4 July 2013, and the email did refer to ‘the weekend’

as you alleged, but none of the email’s content was of a sexual nature.” If serious disciplinary action is proposed to be taken, the organisation may be required to consult with the employee or give them a last opportunity to respond before the disciplinary action is implemented. In the case of termination of employment, this is consistent with the unfair dismissal rules. Sometimes in the meeting about the investigation’s outcomes, a party might become angry and accuse the investigator or the decision-maker of bias, victimisation, improper process or other failures, or threaten to make a claim of work-related stress or bullying. Simple criticisms can be refuted on the spot. It is probably safest to take note of more complex concerns and offer to get back to them once you have considered them. Often witnesses are told in their interviews that they will not be informed of the outcome. Nevertheless, it is good practice to contact each witness and inform them: • that the investigation has ended • thank them for their participation • how they may raise any concerns about victimisation because of their involvement (if you think that is a risk), and • that they are still required to maintain confidentiality, even though the investigation has ended. In doing so, you can demonstrate and instil confidence in the organisation’s commitment to best practice complaints handling and investigation.

¶21.4 Longer term steps What was really going on here? In many cases that we have investigated, the formal allegations are just the tip of the iceberg. They are often just a hint of more systemic issues in the team or the broader workplace. The completion of an investigation provides a good opportunity to reflect, at a higher level, on what was really going on between the parties, and more broadly, in the team or the workplace. Ask yourself: what was at the heart of these allegations? What was going on in the background? Work through the following checklist. Did any of the following circumstances exist, and contribute to employees behaving badly? 1. Unaccepted change. • Rejection of the authority of a particular manager. • Rejection of change — change in role, change in supervisor, change in accountability for performance outcomes, change in technology (from individual to industry level change), restructure. 2. Challenge to real authority of manager or organisation. • “I’m special” mentality, for example, an expert, volunteer or elected official. • Lack of agreement regarding authority, autonomy and accountability, for example, blurred reporting lines. 3. Failure to set and manage performance standards. • Unrealistic standards, for example, significant workload increases. • Incompetence of complainant, respondent or managers. • Lack of consistent procedures to manage poor performance. • Inadequate supervision: supervisor inexperienced, physically absent, lacks confidence, inconsistent or

plays favourites. 4. Failure to set and manage to ethical conduct standards. • Inconsistent messages regarding behavioural expectations. • Leaders demonstrate or openly permit inappropriate behaviour. • Lack of consistent procedures to manage allegations. 5. Organisational stress and highly pressurised supervision. • Autocratic or aggressive managers. • Hierarchical, militaristic or highly competitive environment. • Organisational stress: poor financial results; threats of downsizing, outsourcing or other job losses; small organisation growing in scale and becoming more process-focused; conflict within board, between board and CEO, between members of the senior executive or between managers of key functions. 6. Other common factors. • A power play, factions or turf wars. • The break-up of a relationship between colleagues. • Individual: psychological illness, personality disorder or high conflict personality. • Individual: marital issues, financial problems or a gambling addiction. These factors are based on a study of Worklogic’s investigation cases from 2007 to 2017, which identified the most common precursors and underlying problems that existed prior to the allegations being made. As you can see, many of the common factors are systemic in nature, are outside the individuals’ control, and have the potential to affect far more employees than just the parties to the allegations. The checklist above will give you some clues as to the systemic conditions which might have put people under pressure, exacerbated pre-existing personality traits, increased their anger and frustration, or heightened their reaction to how they were being managed. It’s also worth considering how this behaviour or dispute ended up as a formal complaint or grievance letter. Consider the following questions. • Has this behaviour been present at a low level for some time? • Was there something about the workplace culture or individuals in this work group which discouraged the complainant from addressing their concerns at the local level? Did the complaint-handling process work effectively as an avenue for redress? • Did the participants properly understand the grievance and complaint procedures? • Was management aware of what was going on? • Did management act early enough? If not, why not? Take note of the precursors (what was going on in the background) as well as the things that could have been done better at an early stage. This will guide your thinking about the various options available to the organisation, many of which are set out below.

¶21.5 Post investigation — Aftermath or afterglow? Worklogic’s research “Aftermath or Afterglow: Improving Workplace Culture & Team Dynamics After a

Misconduct Investigation”6 in 2017 focused on the various interventions that employers can make after a complaint and investigation, and how effective the research participants judged those interventions to be. The research explored the latest academic research and the results of an employer survey to determine what is best practice. One of the key findings was — perhaps not surprisingly — that whatever the employer does after an investigation, it should do something. The research is clear: the worst outcomes for the team and the workplace occur if the employer is avoidant. That is, if no restorative and reconstructive measures are taken to deal with the conflict at hand, or to repair the feelings of employees who have made or responded to complaints, the conflict and ill will lingers. No matter how thorough, fair and useful an investigation is, after the investigation, the following key areas will also certainly need urgent and concentrated effort to: • explore proactively the feelings of the complainant, respondent and participants • work with the broader team to understand the impact of the complaint and conflict • teach the employees the standards of conduct that the employer requires • work with the wrongdoers to help them identify their risk factors and teach them self-control strategies for the future • explore any issues other than the allegations set out in the complaint, and • invite managers and other staff to reflect on their own contribution to the conflict. Our research indicates that whatever restorative interventions you choose after an investigation of misconduct, the action must be taken and also communicated to employees in some way. Communication will promote confidence that appropriate measures are in place and that management are taking an active role in handling the conflict. Support the parties to work together again In most cases, the parties will need to continue working together after the investigation is finalised. This can be fraught. A respondent may feel resentful that he or she has been the subject of allegations, particularly if the allegations were found unproven. They may feel their reputation is tainted. Both parties may feel concerned about the number of people pulled into the investigation process, or unhappy with how other people in the workplace viewed the issues under investigation. Their colleagues in the workplace may be unsettled as a result of the investigation, leading to a change in workplace dynamics. Consider the situation carefully and work out what actions will have a strong and positive impact. Talk to the parties about what is needed, and ensure that they have ongoing support after the investigation is over. It is helpful if all of the employees involved are offered the opportunity to use the services of the organisation’s Employee Assistance Program (if one exists) or an external counsellor. The complainant, the respondent and their colleagues may also need some support and guidance to return to working together cooperatively. To this end, holding a mediation or a facilitated discussion can enable the parties to explore their future working relationship and negotiate some “ground rules” about how they are going to work together. A manager should also be tasked with monitoring and supporting the employees to implement and adhere to their agreement. Organisations also need to consider the requirements imposed by workplace health and safety laws. Generally, organisations have an obligation to make a workplace safe as far as reasonably practicable, and should take prompt action when they become aware of a risk. This may require a review of options such as: • Changed reporting lines.

• The redistribution of workloads. • Introducing safeguards such as having a third person present in meetings between the two parties, or requiring the parties to copy a third person into their emails for a period of time. • “Remedial training” for the wrongdoer about their behaviour in the workplace, focused on skill development. • Training for all staff on appropriate behaviours and having difficult conversations. • One-on-one conflict coaching, to enable self-reflection and the development of interpersonal skills. For example, Vivek and Suzanne had worked together successfully for many years until Suzanne lodged allegations of sexual harassment against Vivek. An investigation found Suzanne’s allegations to be unproven, however, during the course of the investigation it became evident that the pair had been romantically involved and that their relationship had recently ended acrimoniously. After the investigation concluded, Vivek and Suzanne were faced with the prospect of continuing to work together as neither of them wished to resign. Both are valued employees. The organisation invited them to participate in a facilitated discussion. As Vivek and Suzanne had worked successfully together in the past they were committed to trying to continue to do so again, however, they both felt angry and betrayed. A facilitated discussion assisted the two of them to understand each other’s viewpoints and to set some parameters around how they would engage with one another in future. It was agreed that for the next three months they would communicate only regarding issues to do with their work and would not engage in any discussion about their personal lives or the allegations. A year later they had resumed an amicable working relationship. Up-skill managers and leaders Managers are often at the coalface of conflict. If they are not involved in the conflict themselves, they are likely to be the first person to see or hear about a problem, or to be told of alleged misconduct. A common theme to emerge from many investigations is the need for better training for managers. Promoted often on their technical ability, it is quite usual for new managers to take some time to become comfortable and adept at dealing with “people issues” and hone their skills in responding to criticisms and conflict, holding others accountable, and communicating about difficult matters. If an investigation has exposed a gap in the team-focused, communications and leadership skills of a manager, this is a good opportunity to review their training and coaching needs. Managers must also understand the importance and impact that their own individual behaviours have in building the culture of the workplace. Consider giving managers KPIs related to “modelling the values”, “being a trusted leader” and “actively helping staff to resolve disputes and concerns”. Management and leadership training in the following areas can both reduce the incidence of formal allegations and improve the management of allegations when they do arise: • Giving feedback, conducting performance appraisals and managing poor performance. • Having difficult conversations. • Dealing with high conflict personalities. • Identifying and responding to unprofessional or risky behaviour in the workplace. • Modelling the organisation’s values and expected behaviours. • Leading diverse teams. • Managing conflict with emotional intelligence.

Focus on team training that gets to the heart of the matter Our research showed that employers believe that training is the best team intervention they can offer — especially training that is tailored to the organisation and the issues that the staff has faced. In particular, training should cover: • Identifying bullying, sexual harassment and discriminatory behaviour. • Understanding business ethics such as conflict of interest. • Understanding adverse action, confidentiality, victimisation. • The impacts of these behaviours on individuals, on teams and on organisations. • Where to raise concerns and to get advice. • Being an “active bystander” and how to stand up to bad behaviour in the workplace. • How to give and receive feedback to others in the workplace, and to hold them accountable for their conduct and performance. Once you have run the training, don’t forget to follow up. Check in on the team one month and two months later, to see how they are travelling and whether any further intervention is necessary. Did the policies and procedures “do their job”? Investigations can thoroughly test the usability, coherence and comprehensiveness of an organisation’s policies and procedures. After the investigation, it is worth taking the time to assess thoroughly how the relevant policies and procedures stood up during the investigation. Some questions about the complaint-handling process to consider might include: • Was there a clear process for how the complaint should be handled? • Were all the necessary steps adequately documented? • Were the rights and responsibilities of all the participants clear? • Did the policy set out clear outcomes for non-compliance? Some questions about the conduct standard set out in the policy might include: • Was it clear which policy was applicable to the allegations? • Did multiple policies address the same issue, creating confusion about what was required? • Were the definitions (such as definitions of conflict of interest, sexual harassment) clear and able to be applied with ease? • Were the examples of behaviour provided in the policy sufficient for staff to be clear about what standard was required? • Were all staff fully aware of the policies? When did they last receive training? If the policies and procedure were unclear or open to manipulation, take this opportunity to amend them. Be on the lookout, too, for definitions that are no longer consistent with the current legal and regulatory definitions, and processes that no longer fit with the organisation’s structures and roles. Update these policies accordingly. Our research showed that key policy-related lessons for employers post-investigation include: 1. Communicate policy changes to staff.

Our research into post-investigation interventions showed that many pre-existing policies were revised and introduced following a misconduct investigation. Yet, nearly half of these were not communicated to staff. Policies which set standards for workplace behaviour will have limited effect on the employees and organisational culture if they are not known to all. 2. Introduce policies focused on employee empowerment. Many organisations still lack policies relating to employee empowerment, such as inclusion, employee well-being, diversity, recruitment and promotion. Academic research shows the importance of a humanistic values system in the workplace and stresses the value of mutual respect and support for employees.7 3. Human Resources plays a critical role in reinforcing policy. The most effective policy-related interventions were reminding staff of appropriate workplace behaviours and what constitutes bullying. Presentations by human resource departments were also reported to be effective interventions. These findings highlight the central role of HR in improving organisational culture. 4. Adopt a more outcomes-focused approach to policies and procedures. Overall, it is clear that Australian employers have in place the key compliance-related policies and procedures. At the same time, there is also much scope for a richer and more outcomes-focused approach when it comes to policies and procedures. Research has shown that procedures focused on mediation and reconciliatory measures (rather than punishment) will result in better outcomes for all.8 Conversely, a compliance-focused approach could miss out on this opportunity. In our experience at Worklogic, there is often a lack of procedural fairness in employment policies, and they are very focused on immediate risk, management and discipline. 5. Review and refresh your policies. As a result of the research, we recommend that organisations review their policies for tone, values and fairness. Look for opportunities to include reconciliatory measures — such as informal discussions with parties involved, conflict coaching and offering counselling for the individuals involved. Ensure there are procedures promoting early intervention in workplace conflict and suspected misconduct. Culture What have the allegations taught you about the culture of the organisation? Having completed the investigation, although you only collected information about the specific allegations, do you have any insights into the working culture of this team? Did it appear to you to be punitive or supportive, constructive or destructive, cooperative or individualistic, transparent or secretive? Are people encouraged to compete to each other’s detriment, or in breach of the organisation’s behavioural expectations? Do you have any observations which require further exploration? If you have a strong sense that there could be a systemic problem within this team or workplace, consider enquiring further. Review what employee feedback mechanisms you have in place. Do you run an annual employee engagement survey, and when is it next due? You could run a mid-year “pulse check”, or a workplace review to see how the team is really travelling. This can be an open and qualitative exploration of what is going on in the workplace from the perspective of the employees, including survey data and further employee interviews. If you do carry out further enquiry, it is quite important to separate clearly the investigation from any general review. Otherwise, staff might get anxious about ulterior motives and suspect that someone else is being covertly investigated. Consider: when did your organisation last review its values? Is this a good time to develop or review the organisational values which guide the decisions and actions of your staff? A values project, run in-house or with external facilitation, is a great opportunity for employees and managers to discuss “above the line” (what is visible and known to everyone) and “below the line” (rules and ways of behaving that are unspoken or disavowed) behaviours, what sort of workplace they want to create, and how they will achieve that together. Our review of current research confirms that organisational morale is a key

predictor of civility in the workplace — working on shared values is a great way to build morale and a positive workplace culture. Finally, don’t forget the more contemporary initiatives — even if they might not appear to be directly related to conflict resolution or complaints-handling. Health, well-being and empowerment initiatives have been identified in our recent research as very useful to prevent bullying, minimise stress and improve team culture. These include promoting professional and personal development, and offering initiatives to improve work/life balance and physical and mental health. Once you understand the full picture and have identified any risk factors, you can devise corrective measures such as values workshops, team effectiveness workshops and executive coaching. Case Study — Yellow Duck Limited — Episode 12: Next steps From all the evidence you collect, your analysis results in Sam’s allegations being partly substantiated. Your findings include that Marisa did breach the discrimination policy when she engaged in the following proven behaviour, because of Sam’s skin condition: • Referring to Sam as “scabby wonder” when talking to Kim. • Scratching herself and laughing in Sam’s presence. • Scratching herself then smiling at Kim when Sam was making a presentation in September. The allegations relating to writing on the table were found not proven as there was no evidence to support the allegation that Marisa wrote the comments found on the lunchroom table. The Facebook comment was also found not proven because the comment that Sam was “mental” was not written by Marisa. You meet with Sam and Marisa separately to tell them your findings. Marisa is outraged that any findings have been made against her and says that the organisation has “made a mountain out of a molehill”. Sam seems to accept your findings, but he calls in sick the next day. Now that you have delivered the findings: • What are the likely disciplinary outcomes, if any? • What consideration will you give to the context and precursors to Sam’s complaint? What further questions will you ask yourself? • What steps might you take to position the participants to work together constructively again? • What systemic improvements might you consider to minimise the likelihood that this type of misconduct occurs again at Yellow Duck Ltd, or that, if it does occur, it will be identified and dealt with earlier?

Footnotes 6

Rose Bryant-Smith and Sarah Carrier, Aftermath or Afterglow: Improving Workplace Culture & Team Dynamics After a Misconduct Investigation (2017) available at www.worklogic.com.au/worklogic-research, accessed July 2020.

7

Cicerali, L. K., & Cicerali, E. E. (2016). A qualitative study on how Swedish organisations deal with workplace bullying. Nordic Psychology, 68, 87–99.

8

Cicerali, L. K., & Cicerali, E. E. (2016). A qualitative study on how Swedish organisations deal with workplace bullying. Nordic Psychology, 68, 87–99.

¶21.6 Conclusion Each workplace investigation presents a unique set of circumstances to the investigator. A workplace investigation can be technically difficult, emotionally draining, ethically hazardous or a combination of all three. It is certainly never boring or devoid of challenge. In conducting a workplace investigation you are constantly exercising your judgment and making decisions. The decisions you will make are both minor and major. You’ll decide, for example, how to

communicate the process of investigation, witness selection, what is a reasonable time to give to a witness to respond to evidence and whether a particular employee may be a support person. Finally, all your work will lead to a judgement about whether the evidence supports a finding on the balance of probabilities that an allegation is made out. Each of these tens or hundreds of discrete decisions that you make in the course of the investigation contributes to the building of the process; each decision influences whether the investigation as a whole is one that is procedurally fair. Workplace investigators need to be decisive and hone their judgment to a fine point to ensure procedural fairness. The responsibility of the number of decisions that need to be made in an investigation can sometimes weigh heavily. Judgment is developed with practice and in community with other colleagues, but we also hope that the combined years of practical experience contained in this book will assist you in calibrating yours. Use this book as a sounding board to test and develop your judgment. Workplace investigators need to be organised. In setting out the step by step procedures for conducting a workplace investigation, we hope to provide you with a framework that you can follow and adapt to your own and your organisation’s needs. This book points you towards tips and traps for the practice of workplace investigation. Workplace investigators need to be courageously independent. We acknowledge that this work is often challenging, given the dynamic nature of workplaces and the great variety of people who work within them, as well as the laws, policy frameworks and principles that govern your investigation. Those around you may pull and push you, cajole and pressure you, in trying to get the outcome they seek. We trust that the knowledge you obtain in this book will assist you to withstand these kinds of pressures and give you the tools to educate your organisation about the importance of an independent investigation. Most of all workplace investigators need to be procedurally fair. The ability to be, as well as to appear to be, independent while gathering evidence and then to ensure that all of the evidence is weighed critically and fairly against the civil standard is the indispensable quality of a workplace investigator. Use this book to assist you in keeping the principles of procedural fairness in the front of your mind when making decisions in your next investigation. With increased formality and openness of employers’ decision-making processes, greater recognition of individual rights to a fair process, and the rise of individual complaints in the health and safety space, workplace investigations are now a common occurrence. Until now, in-house investigators have had little option but to learn on the job how to investigate, particularly in those organisations that do not have clear procedures to follow. Increasingly, external and in-house investigators are building something of a community, with the need for properly trained workplace investigators becoming more obvious. In Australia, the Australasian Association of Workplace Investigators (AAWI) is a growing organisation which seeks to promote and enhance the quality of impartial workplace investigations. In-house investigators in particular have a special opportunity to influence the culture, ethics, health and vitality of your organisation. Through all of your actions and decisions as investigator, you demonstrate to all the employees involved the values of the organisation, and how those values are applied in practice. Through your efforts, not only will the facts of the case be discovered, but you will also gain insights into the root causes of conflict, complaint and misconduct in the workplace. The process we set out in this book will help you to reduce the complexity and risks you face, and we hope it will make the task of investigating an interesting and rewarding one. If you follow its process and adhere to its principles, you can be confident that your investigation will be fair, rigorous and reliable, and lead to the right outcome for the participants and the organisation. When you manage your investigations with forethought, ethics and confidence, your workplaces will benefit as a result. Jodie Fox, Jason Clark, Rose Bryant-Smith and Grevis Beard Worklogic

Index A Accreditation of investigators

¶6.2

Accusations of inappropriate conduct

¶14.7

Active listening

¶14.2

Adverse action

¶1.1; ¶7.4

After the investigation post-investigation restorative and reconstructive measures

¶21.2; ¶21.5 ¶21.5

Allegations anonymous

¶7.1

breaches of policy and procedure

¶4.1

comments about third parties

¶2.3

common problems

¶2.3

complete

¶2.4

context

¶2.3

drafting

¶2.3; ¶2.4

failure to act can amount to bullying

¶4.5

giving appropriate notice

¶5.2

impact statements and feelings

¶2.3

investigation — bullying

¶4.3

— critical incidents

¶4.2

— discrimination

¶4.4

— fraud

¶4.7

— senior employees and executives

¶4.11

— sexual harassment

¶4.6

new allegations arising during investigation

¶2.4

rumours

¶2.3

sexual harassment allegations

¶4.6; ¶11.3

specific

¶2.3

stale

¶2.3

subjective conclusions and emotive statements

¶2.3

too many

¶2.3

vague

¶2.3

Alleged offender

¶1.3

Alternative dispute resolution (ADR) mediation Analysis of evidence Anchoring bias

¶1.4; ¶1.5 ¶3.3 ¶17.1; ¶17.2; ¶19.3 ¶18.3

Anonymity of participants

¶7.1

Anonymous complainant

¶1.1

Anti-bullying

¶4.3

Anti-discrimination

¶4.4

Appeal after investigation

¶21.1

Audio-recording

¶12.2

participant

¶12.2

pros and cons

¶12.2

Australasian Association of Workplace Investigators (AAWI)

¶6.2; ¶21.6

B Balance of probabilities definition

¶17.1 ¶5.7; ¶17.1

ethics of workplace investigations

¶5.7

Banks, information from

¶4.7

Behavioural misconduct

¶1.1

Bias, perception of Blaming of others by participant Breach of company values Breaches of policy

¶5.3; ¶5.4; ¶6.2; ¶13.4 ¶20.5 ¶4.9 ¶2.2; ¶4.1; ¶8.1; ¶19.3; ¶21.3

disciplinary consequences

¶21.3

proven behaviour

¶18.5

value judgment

¶18.5

Briginshaw rule

¶17.1

Bullying definition

¶4.3

elements to investigate

¶4.3

investigation

¶4.3

particular issues

¶4.3

Business ethics

¶21.2

C Challenge to investigation process

¶7.1

Checklists contradictory evidence

¶16.7

ensuring your investigation is procedurally fair

¶5.6

impartial

¶5.3

similar fact evidence be taken into account

¶17.4

things to consider — spectrum of risk

¶1.6

unknown or anonymous complainant

¶7.1

what to explain to participants at the start of the investigation

¶9.1

Children — see Participants Choosing, appointing and instructing an investigator Codes of conduct

¶6.2 ¶1.3; ¶1.4; ¶18.5

Collusion between participants

¶9.4

Common problems with allegations

¶2.3

Communicating the allegations to respondent

¶2.3

Communicating the outcomes Communicating the process to all participants

¶21.3 ¶9.1

Complainants common problems with allegations — see Allegations initial discussion

¶9.2

Complaints anonymous distorted perceptions

¶7.1 ¶20.5

drafting

¶2.3; ¶2.4

vexatious or bad faith

¶7.4

Complaints handling

¶1.3

Completeness

¶19.4

Computer-based information — see Digital evidence Conclusion — see Findings of fact Concurrent external investigation Conduct standards

¶1.3 ¶1.3; ¶2.2

Conducting interviews after the interview

¶12.8

concluding the interview

¶12.7

duration of interview

¶12.5

managing documents provided to the investigator

¶12.3

providing evidence to a party for comment

¶12.4

reasonable accommodation of impairments

¶12.6

recording evidence collected in interview

¶12.2

telephone or internet-based video - conferencing

¶12.1

where to conduct interviews

¶12.1

Confidentiality

¶5.6; ¶21.1

Confirmation bias

¶18.3

Conflicting versions of events

¶17.6

Conflicts of interest interference by the instructor

¶5.4

Contextual evidence

¶8.1

Context-reinstatement Contradictory evidence

¶13.2 ¶5.2; ¶16.1; ¶16.2

assessing responses

¶16.7

collecting conflicting evidence

¶16.6

communicating

¶16.4

describing

¶16.4

managing delays and failure to respond

¶16.5

managing emotional responses

¶16.4

Cooperation and non-cooperation

¶14.1

Corroborative evidence

¶17.5

Corruption — see Whistleblower Costs emotional cost

¶20.3

external investigator

¶10.5

COVID-19 internet-based video conferencing Credibility of participants poor credibility

¶12.1 ¶3.5; ¶3.5; ¶10.3; ¶11.1 ¶17.6

Criminal conduct

¶1.3

Critical incidents

¶4.2

communicate with employees

¶4.2

concurrent investigations by external regulators

¶4.2

organisation's reporting obligations

¶4.2

prioritise welfare of staff

¶4.2

secure all relevant evidence

¶4.2

Critical thinking — see Decision-making Criticisms of process Cultural differences

¶20.1 ¶4.4

D Data from computers

¶15.7

access to data

¶15.7

deleted data

¶15.7

misconduct using computers

¶15.7

reviewing data

¶15.7

technical data

¶15.7

Deceit — see Lying and deception Decision-making

¶18.1

anchoring bias

¶18.3

confirmation bias

¶18.3

critical thinking

¶18.1

familiarity principle

¶18.3

— other biases

¶18.3

gut feel

¶18.2

role of intuition

¶18.2

types

¶2.2

— breach of policy, code or standard

¶2.2

— fact-finding

¶2.2

— organisation's response

¶2.2

unconscious bias and decision-making traps

¶18.3

Defamation threats to sue the investigator

¶20.2

Definitions balance of probabilities bullying

¶5.7; ¶17.1 ¶4.3

corroboration

¶17.5

discrimination

¶4.4

fraud

¶4.7

hearing rule

¶5.1

natural justice

¶5.1

personal information

¶15.5

procedural fairness

¶5.1

sexual harassment

¶4.6

vexatious or malicious allegations

¶1.1

vicarious liability

¶4.4

workplace bullying

¶4.3

workplace investigation

¶1.1

Delaying communicating the outcomes Delays by participants Digital evidence computer-based records privacy of data on an employees

¶21.2 ¶5.5 ¶15.1; ¶15.6 ¶4.7 ¶15.5

Diligence

¶1.1

Direct discrimination

¶4.4

Disability discrimination

¶4.4

mental illness

¶7.1

of participant

¶7.1

Disciplinary action, notice of potential

¶9.3

Discrimination definition

¶4.4

Discrimination investigations

¶4.4

direct discrimination

¶4.4

indirect discrimination

¶4.4

Distorted perceptions

¶20.5

Documentary evidence

¶15.1

Draft reports provision Drafting allegations

¶19.6 ¶2.4

Duty to report concurrent external agency/police investigations

¶4.8

E Electronic workplace surveillance — see Surveillance Emotional cost of workplace investigations

¶20.3

Emotional or hostile participants

¶14.2

Emotive statements Empathy Employment policies Enterprise agreements Ethical conduct standards Ethics of investigations Evidence allegations and the evidence against them analysis

¶2.3 ¶13.4 ¶4.1; ¶18.5 ¶1.1 ¶21.4 ¶5.7 ¶11.1 ¶7.2 ¶17.1; ¶19.3

assessing balance of probabilities

¶17.2; ¶17.3 ¶5.7

biased

¶11.4

circumstantial

¶15.3

conflicting

¶16.6

contextual

¶8.1

contradictory

¶11.4; ¶16.1

corroborative

¶17.5

definition

¶11.1

digital

¶15.1; ¶15.6

documentary

¶11.1; ¶15.1

extracting

¶15.8

flimsy

¶11.4

hearsay

¶11.4; ¶17.4

illegally obtained

¶11.4

inconsistent

¶17.6

irrelevant or unfocused

¶14.4

news sources Open Source Intelligence Tools (OSINT) organising and preserving

¶15.4; ¶15.13 ¶15.9 ¶8.5

overly prejudicial

¶17.2; ¶17.3

probative

¶17.2; ¶17.3

recovering deleted data relevance

¶15.8 ¶11.2; ¶11.3; ¶17.2

reliable

¶11.4

secure

¶8.2

similar fact

¶11.4

social media

¶15.9

third party

¶15.4

using phone data

¶15.8

weight

¶17.2

when to stop collecting

¶15.2

Exit interview

¶1.1

External investigator costs

¶10.5

effective use

¶10.1

independence

¶10.3

role

¶10.2

F Facilitated discussion Fact-finding investigations

¶1.4; ¶1.5 ¶1.1; ¶2.2; ¶19.3

alternatives to

¶1.4

appropriateness

¶1.5

Familiarity principle

¶18.3

other biases

¶18.3

Findings of fact enterprise agreement

¶19.3; ¶21.1 ¶21.1

challenges to investigation outcomes — by instructor or employer

¶21.1

— by the complainant

¶21.1

— by the respondent

¶21.1

conclusion

¶21.6

consequences of challenges to outcomes

¶21.1

unfair dismissal laws

¶21.1

Fishing expeditions

¶15.2

Flimsy evidence

¶11.4

Formal investigation Format and length

¶1.4; ¶1.6 ¶19.5

Fraud definition Freedom of Information (FOI) Full investigation advantages and disadvantages

G Geolocation — see Surveillance Global Positioning System (‘GPS’) — see Surveillance

¶4.7 ¶19.1 ¶3.1; ¶3.4; ¶3.5 ¶3.4

Golden rules of investigations

¶1.6; ¶5.1

natural justice

¶5.1

— definition

¶5.1

procedural fairness

¶5.1

— definition

¶5.1

Grievance process

¶1.1

Gut feeling — see Decision-making

H Health and safety risks

¶1.1

Hearing-impaired and culturally and linguistically diverse participants face-to-face interview

¶7.1

verbal and non-verbal cues

¶7.1

Hearing rule definition Hearsay evidence High conflict behaviour

¶5.1 ¶11.4; ¶17.4 ¶20.5

I Illegal discrimination Illegally obtained evidence

¶4.4 ¶11.4

Illness of participants

¶7.1

Impact and feelings, statements of

¶2.3

Impartial investigator

¶5.3

Impartiality

¶5.3

scenarios

¶5.4

Independence of external investigator

¶10.3

Indirect discrimination

¶4.4

In-house investigators

¶21.6

Insider trading Instructor role versus investigator role

¶4.7 ¶10.2

Insurers

¶1.3

Intellectual capacity of participants

¶7.1

Internal staff investigator

¶6.2

Internal investigators

¶6.2

Internal workplace rules

¶1.3

Interview records

¶8.5

Interviews and interviewing

¶8.4

after the interview

¶12.8

audio recorded

¶12.2

building rapport

¶13.1

behaviour of participant in

¶14.1

concluding

¶12.7

duration

¶12.5

in person

¶12.1

issues arising during the interview

¶14.1

lying and deception

¶14.1

managing documents provided to the investigator

¶12.3

method of recording

¶12.2

new allegations arising during interview

¶14.6

non-cooperation of participants

¶14.1

notes of interview

¶12.2

over the telephone or internet-based video conferencing

¶12.1

providing evidence to a party for comment

¶12.4

questions and questioning

¶13.1

reasonable accommodation of impairments

¶12.6

record of interview provided to participant

¶12.8

recording evidence collected in interview

¶12.2

rich content from

¶13.3

right to legal or union representation

¶7.1

statements

¶12.2

structuring

¶13.2

typed/handwritten notes

¶12.2

useful tips

¶12.2

vulnerable people and child witnesses

¶13.2

Intuition — see Decision-making Investigation on the papers

¶3.5

Investigation process appropriateness

¶1.5

credibility unrelated to emotional display

¶7.4

dealing with “interesting” issues

¶6.2

decision-making and reporting

¶8.1

diligence and promptness

¶5.5

ethics of

¶20.3

flawed

¶1.1; ¶1.3

formal investigation

¶1.4; ¶1.6

in-house investigators

¶6.2

interesting

¶6.2

managing investigations against senior staff

¶6.2

non-employees

¶4.10

objectives

¶1.1

procedures

¶1.3

purpose and scope

¶2.1

requirement to investigate when no individual complainant

¶1.1

response to criticisms of your process and outcome rules senior employees and executives

¶20.1 ¶1.3 ¶4.11

senior staff

¶6.2

time, resources and skills

¶6.2

timing and logistics

¶8.1

trauma-informed investigations

¶7.4

types

¶3.1

types of decision-making

¶2.2

updates during and after

¶10.4

verbal or written complaint

¶1.1

Investigation report

¶19.1

attachments

¶19.8

audience

¶19.1

completeness

¶19.4

draft reports

¶19.6

executive summary

¶19.7

format and length

¶19.5

helpful words and phrases

¶19.3

provided to parties

¶19.1

right to copy structure

¶7.3 ¶19.2

Investigator acting diligently and promptly

¶5.5

and Decision-Maker

¶6.2

choosing, appointing and instructing

¶6.2

documents

¶12.3

emotional impact on

¶20.3

external consultants

¶6.2

inappropriate conduct

¶14.7

internal staff

¶6.2

lawyers

¶6.2

powers and responsibilities

¶6.3

pressure on qualities

¶20.1 ¶6.1

relevance of behaviours

¶14.3

role

¶10.2

safety and well-being

¶14.3

sexual harassment allegations

¶4.6

training

¶6.2

Investigator-instructor relationship

¶10.1

L Language non-blaming

¶4.6

translators

¶7.1

Legal or union representation

¶7.1

Legal professional privilege (LPP) Licensing of investigators

¶6.2; ¶19.1 ¶6.2

Looking after yourself when investigating

¶14.3

Lying and deception

¶14.5

M Malicious allegations — see Vexatious or malicious allegations Mediation — see Alternative dispute resolution (ADR) #MeToo movement implications for misconduct investigations

¶4.6

Memory — see Recollection Mental illness Missing particulars of allegations

¶7.1 ¶2.3; ¶9.2

Mobile telephone evidence

¶15.8

Motive of complainant

¶17.6

N Naïve enquirer

¶13.3

Natural justice

¶5.1

definition

¶5.1

New allegations arising during the interview No bias rule Non-cooperation of participants

¶14.6 ¶5.1 ¶14.1; ¶14.1

Non-employees investigating

¶4.10

Notes of interview — see Interviews and interviewing Notice of allegations

¶5.2

Notice of contradictory evidence

¶5.2

Notice of possible penalties

¶5.2

Notice of questions to be asked

¶5.2

Nuremberg defence

¶2.4

O Off the record

¶12.2

Ombudsman investigations, concurrent

¶1.3

Ongoing uncertainty

¶21.1

Open Source Intelligence Tools (OSINT)

¶15.9

Organisational culture

¶21.5

Organisational norms

¶4.4

Organisational policies and procedures

¶1.3; ¶4.1

Organisational risks

¶1.6

Organisational values

¶1.3

Organisation's response

¶2.2

Organising and preserving evidence

¶8.5

P Participants aggressive audio recording

¶9.1; ¶14.2 ¶12.2

children

¶7.1

credibility unrelated to emotional display

¶7.4

confidentiality credibility of

¶5.6; ¶7.4 ¶3.5; ¶3.5; ¶10.3; ¶11.1; ¶14.2

duty to act honestly

¶7.4

duty to participate in a workplace investigation

¶7.4

emotional and hostile

¶14.2

hearing-impaired and culturally and linguistically diverse participants

¶7.1

health of

¶7.1

high conflict

¶20.5

intellectual capacity of

¶7.1

mental illness

¶7.1

non-cooperation

¶14.1

recording of emotion

¶14.2

responsibilities

¶7.4

rights and obligations

¶7.1

senior trauma-informed investigations

¶4.7; ¶4.11 ¶7.4

uncooperative

¶14.1

witnesses — see Witnesses Partly proven allegations

¶18.5

Perception of bias — see Bias, perception of Performance standards

¶21.4

Phone records

¶12.1

Planning the investigation

¶8.1

contextual evidence

¶8.1

information gathering

¶8.1

interviewing witnesses

¶8.1

investigation approach

¶8.1

investigation timing and logistics

¶8.1

plan to be adaptable

¶8.1

record-keeping, decision-making and reporting

¶8.1

Police investigations, concurrent

¶4.8

Policies and procedures Poor recollections of participants

¶1.3; ¶21.5 ¶11.4; ¶17.6

Post investigation — see After the investigation Power imbalance Prejudgment issues Prejudicial (evidence)

¶4.6 ¶21.2 ¶17.2; ¶17.3

Preliminary enquiry

¶3.2

Preliminary investigation

¶3.3

advantages and disadvantages

¶3.3

procedural fairness

¶3.3

Privacy

¶15.5

belongings and personal space

¶15.5

data on an employee's computer

¶15.5

employment records

¶15.5

Probative (evidence) Problem solving discussion

¶17.2; ¶17.3 ¶1.4

Procedural fairness

¶3.3; ¶5.1

definition

¶5.1

investigation

¶8.3

Proof, standard of

¶17.1

Protected disclosure laws — see Whistleblower Proven or substantiated allegations

¶18.4

Q Questions and questioning

¶13.1

external investigator

¶10.1

preparation

¶13.1

sequencing

¶13.2

R Reasonable accommodation (disability) Reasonable management action (bullying)

¶7.1; ¶12.6 ¶4.3; ¶4.4; ¶4.5; ¶21.1

Recollection memory Record keeping

¶11.4; ¶17.5; ¶17.6 ¶8.1; ¶8.5; ¶12.8

Reinstatement

¶21.1

Re-investigation

¶21.1

Relevance of evidence — see Evidence Reliable evidence

¶11.4

Reluctant complainants

¶7.2

allegations and the evidence against them

¶7.2

Repeated behaviour

¶4.3

Report — see Investigation report Requirement to investigate

¶1.1

Respondents communicating the process Review with no findings of fact

¶9.3 ¶3.2; ¶3.5

Right to anonymity

¶7.1

Right to disclose information

¶6.2

Right to legal or union representation

¶7.1

Right to withdraw allegations

¶7.2

Risk management

¶8.5

Risk to the organisation Rumours

¶1.6; ¶2.2; ¶5.3; ¶7.2 ¶2.3

S Safety policies and procedures show cause

¶21.2

Scope creep

¶2.4

Scope of investigation

¶2.1

Secure evidence

¶8.2

Sexual harassment allegations

¶4.6; ¶11.3

definition

¶4.6

power imbalance

¶4.6

use sensitivity and non-blaming language

¶4.6

workplace relationships

¶4.6

Sick leave of participants

¶7.1

Similar fact evidence Site visits

¶11.4 ¶15.12

Social media Open Source Intelligence Tools (OSINT) Spectrum of risk Speculation by a witness Stale allegations Statements — see Interviews and interviewing

¶15.9 ¶1.6 ¶11.4 ¶2.3

Subjective conclusions Support of participants during investigation

¶2.3 ¶5.1; ¶7.1

Support persons

¶7.1

role

¶7.1

Surveillance

¶15.11

audio and optical surveillance

¶15.10

electronic workplace surveillance

¶15.10

geolocation

¶15.10

Global Positioning System (GPS)

¶15.10

swipe card

¶15.10

T Theft Third party evidence

¶4.7 ¶15.4

Time and budget constraints

¶3.1

Time frame

¶8.3

Timeliness of investigations

¶8.3

Training for managers

¶21.5

for team

¶21.5

in conducting investigations

¶6.2

Twitter

¶4.6

U Unaccepted changes in the workplace

¶21.4

Unconscious bias

¶18.3

Unfair dismissal Unknown or anonymous complainant Unproven or unsubstantiated allegations

¶6.2; ¶7.3; ¶21.3 ¶7.1 ¶5.6; ¶21.3

Unreasonable behaviour

¶4.3

Unreasonable management action

¶4.5

V Vague allegations Value judgments Values, alleged breach of

¶2.3 ¶2.2; ¶18.5 ¶18.5

Vexatious or malicious allegations

¶7.4

definition

¶1.1

response to

¶21.3

Vicarious liability definition

¶4.4

Victimisation

¶7.4

Video conferencing apps

¶12.1

W Weight (evidence) Well-being of investigator When to stop collecting evidence

¶17.2 ¶7.4 ¶15.2

Whistleblower

¶1.3

Withdrawing allegations

¶7.2

Witnesses deception and lying

¶17.6

emotional or hostile

¶14.2

inconsistent

¶17.6

information

¶9.4

interviewing

¶8.1

non-cooperative

¶14.1

poor recollections

¶11.4

reluctant

¶7.2

seeking to withdraw

¶14.7

third party

¶15.4

Working relationships

¶21.5

Workplace

complaint

¶21.3

#MeToo movement

¶4.6

prevent and address sexual harassment

¶4.6

Workplace bullying — see Bullying Workplace investigations

¶21.6

dealing with high conflict

¶20.5

emotional cost

¶20.3

enterprise agreements

¶21.1

ethics of

¶5.7

internal staff as investigators

¶6.2

Workplace review Workplace rights

¶1.4; ¶21.5 ¶21.3

Written allegations confirm receipt

¶9.3

Y Yellow Duck Limited

¶2.4; ¶4.10; ¶6.3; ¶9.4; ¶13.4; ¶14.7; ¶15.11; ¶15.13; ¶16.7; ¶17.6; ¶18.5; ¶19.8; ¶21.5