Workplace Investigations – Top 5 keys to success

National Local Government Human Resources Conference

Grevis Beard, Worklogic

WORKPLACE INVESTIGATIONS:

HOW DO YOU RESPOND ?

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WHAT WE WILL COVER TODAY… Triage first, then act: ‘Why is this investigation

necessary?’ Clearly and accurately identify what to investigate Appoint the appropriate investigator Deal properly with ‘scope creep’ Conduct the investigation in a fair and reliable way

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WHY IS THIS INVESTIGATION NECESSARY ?

• Where the alleged actions may breach policyA question: Do your policies incorporate all the required legal standards of workplace behaviour?• Where serious disciplinary action will arise if breach is

found proven… • Where you need an undisputed, objective, factual

basis for disciplinary action

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WHY IS THIS INVESTIGATION NECESSARY ? (cont)

• When your policy, relevant contract or EBA requires that you investigate in this situation.

• Where allegations are so toxic, serious or widespread that no other approach is viable

• Governance/compliance/legal risks• Other? e.g. (pre-empting reputational risk…)

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POLICY OR CONTRACTUAL REQUIREMENTS: A CASE EXAMPLE

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

After a 12 day tour, Ms Romero, an Officer on a supply ship, Far Swan, emailed HR, alleging bullying by her Captain…

What was in this email….?

Ms Romero’s email:“[Captain Martin’s] inappropriate behaviour

needs to change but this is a matter for Farstad management to address. My intention is to

continue my professional development through study and return to sea to what has been up until now, a productive and happy working

environment with Farstad”.

WRONG DECISION !

AND A POLICY BREACH TOO…

Undertaking the formal investigation was in itself a breach of the Workplace Behaviour Policy.

Why ?

AND A POLICY BREACH TOO… The Policy required Ms Romero to

actually nominate a particular course of action under the Policy (either informal or formal), which she had not done.

AND A POLICY BREACH …(CONT)Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

The email should not have be considered as a ‘formal complaint’ under its Workplace Behaviour/Grievance Policy.

It did not refer to that Policy, made no reference to a ‘formal complaint’ and did not contain details of the complaint.

AND A POLICY BREACH …(CONT)

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

The breach of policy also amounted to a breach of Ms Romero’s employment contract.

This is because the policy formed part of the contract of employment

AND A POLICY BREACH …(CONT)

Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177

The policy was not aspirational or directive, but rather a contractual promise.

PARTICULAR TIPS…• What does your policy actually require?• Start thinking now, about the post-

investigation tool/s you may also need…• Make sure you are acting consistently

regarding similar situations…• Is there any danger of any perception of

adverse action? Document and communicate.

CLEARLY AND ACCURATELY IDENTIFY WHAT TO INVESTIGATE

• Factually describe actions, omissions or words: Who? What? Where? When? How often?

• Be organised in chronological (or rational) order• Number each allegation distinctly• Include dates or duration, so the event is clearly

identifiable• Omit material not capable of being proven, or not

relevant, or indeed inflammatory !

UNCLEAR ALLEGATIONS: A CASE EXAMPLE

Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915 15 vague allegations of inappropriate behaviour

by the respondent manager The investigation was fundamentally flawed

PARTICULAR TIPS…• Engage with the “letter of complaint”• Clarify ambiguous words or phrases• Do the allegations reflect the language set out

in your policies?• Use the active tense (c.f. passive tense)Again, a question: Once it is identified, should it all proceed to investigation ?

IDENTIFY AN APPROPRIATE INVESTIGATOR

Consider practical, strategic, risk implications. The investigator MUST be, and be seen to be, impartial by all parties, and so cannot be: A witness who will need to give evidence A friend or close colleague of one of the parties Someone who may benefit in any way from the outcome of

the investigation Someone who previously disciplined one of the parties

IDENTIFY AN APPROPRIATE INVESTIGATOR (cont)

The investigator must: have the time to complete the investigation in

speedy manner have the skill and knowledge to deal with both:• The investigation process, and, • The specific issues in dispute (e.g. fraud,

discrimination, sexual harassment)

PARTICULAR TIPS…

Consider:• The degree of reputational risk (will this process

be challenged: where, and by whom ? External agencies, courts, tribunals?)

• Whether legal privilege may be helpful• The seniority of parties vs. investigator

WHO WILL INVESTIGATE: A CASE EXAMPLE

Keiko Adachi v Qantas Airways Limited [2014] FWC 518 (10 February 2014) An investigation into an alleged assault…but was it a tussle

or an assault for the medical certificate ? 12 witnesses versus 1 witness…! The investigator had a “high personal and professional

regard” for the witness The investigator was unable to believe that this

employee’s narrative was “anything but totally credible”.

DEAL PROPERLY WITH“SCOPE CREEP”

If new allegations are raised:• You need enough information to be sure

it is not relevant to this investigation.• If out of scope, close out conversation• Refer substantive matters back to the

person determining scope (if that is not you)

PARTICULAR TIPS…• New allegations MUST be put to the

respondent with adequate time to consider

• Respondent may think you are collecting info against them i.e. are biased – be clear about what and why you are asking questions

• Is it “similar fact” evidence? Be open about what evidence you are considering.

“SCOPE CREEP”: A CASE EXAMPLE

Boal v BHP Coal Pty Ltd [2014]; Faulkner v BHP Coal Pty Ltd [2014]

• Both employees responded to allegations contained in a Show Cause letter

• Were not given adequate opportunity to respond to further evidence that was later relied upon in dismissing them.

“SCOPE CREEP”: A CASE EXAMPLE (cont)

Re Mr Boal: evidence of mobile phone records from other days were considered.

Re Mr Faulkner: evidence of the employee using the mobile phone (c.f. having it), operating the vehicle at the time of using his phone, and, evidence of past inappropriate conduct) was considered.

In both cases…never put to the respondents for comment…

The evidence in question…“Zachary J...your (sic) lucky I’m here to get your

truck out of the bog you got it into.”

CONDUCT THE INVESTIGATION IN A FAIR AND RELIABLE WAY

Provide specific allegations to respondent for response, and advise about outcomes

Provide relevant evidence for respondent to comment on

Act impartially and promptly during the entire investigation

CONDUCT THE INVESTIGATION IN A FAIR AND RELIABLE WAY (cont)

Ensure confidentiality

Make findings on the evidence collected, on the balance of probabilities

PARTICULAR TIPS…

• Confirm confidentiality with all participants• Make sure what you ask, and say, at interview

is clear and relevant • Make sure you respond to “off the record”

issues• Provide consistency of process to all

participants

UNRELIABLE INVESTIGATIONS: A CASE EXAMPLE

Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services [2012] FWA 2713• The investigation report did not state who was

interviewed • It did not state what evidence supported the

findings, no understanding of how the conclusions were reached

THANK YOU

Any questions ?

Please do email enquiries@worklogic.com.au or investigations@worklogic.com.au if you would like to receive

e-investigation insights, to accompany our book: “Effective Workplace Investigations”, or, to receive our newsletters.

CONTACT DETAILSGrevis Beard

Director, Worklogicgbeard@worklogic.com.au

(03) 9981 6555 / 0433 590 360Please do contact me to discuss any queries you

may have from the presentation today