Addressing shortcomings of workplace investigations. Discussion on bias, conflict of interest, reasonable decision making and procedural fairness.

1. The shortcomings of
workplace investigations
Harriet Stacey CEO, WISE Workplace
‘A response to Josh Bornstein’s
call for reform’

2. • Internal investigations are:
– incompetent and biased
• External investigators are:
– biased, and unregulated
• Lawyers:
– hide behind legal professional privilege and manipulate
findings to the benefit of the client
Josh Bornstein

3. Questions raised
• How do we ensure procedural fairness?
• What can we do to maintaining
confidentiality?
• When should you use legal professional
privilege?
• What is reasonable?
• How to select and assess excellence in
external investigators?

5. Lohse v Arthur (No 3) [2009] FCA 1118

6. Procedurally fair workplace
investigation
Lohse v Arthur
• A flexible and practical obligation
• adopt fair procedures
• appropriate to and adopted to the circumstances

7. Three elements of
procedural fairness
• A fair hearing
• Independent and unbiased decision makers
• A decision based on evidence

8. • You must notify a person of the allegations against then
prior to the person being interviewed - True or False
• There is no need to interview the respondent if you have
enough evidence to prove the allegations - True or False
• You can decide if the respondent is permitted to have a
support person present during interview - True or False
• You can decide who the respondent’s support person is
present during interview - True or False
• If there is a bias or perceived bias you can still conduct the
investigation - True or False
Procedural Fairness
A Fair hearing

10. Examples of bias
Police Association of NSW (on behalf of Ken Gilmour) v Commissioner
of Police [2009] NSWIRComm 51
The decision maker admitted to predetermining outcome prior to investigation
completion
Mr Zeb Dewson v Boom Logistics Ltd [2012] FWA 9027
Management failed to take disciplinary action regarding earlier allegations of
assault
The manager “displayed manifest bias, he pre-determined his views before even
hearing from the [crane operator]…”
Procedural Fairness

11. AMWU v Visy Packaging Pty Ltd [2013] FCA 525
Adverse action case
Court not satisfied that investigation independent and
impartial
Procedural Fairness

12. Where did Visy go wrong?
• Employer appointed ‘independent investigator’
• Employer framed questions to ask employee under
investigation
• Management attended the employee’s interview with the
investigator
• Employer’s solicitor in regular communication with
investigator
• Solicitor sought ‘clarification’ of certain matters ‘in case
this leads you to updating or reviewing your report’
• Employer intervened to revise report ‘to strengthen it’
Procedural Fairness

13. • You have a personal relationship with complainant or
respondent – Yes or No
• You have previously investigated key parties – Yes or No
• You are subject of the complaint or involved as a witness –
Yes or No
• You are a member of the same club or group – Yes or No
• If you have had previous issues or problems with any of the
parties – Yes or No
• You hold particular views on the subject of the investigation
e.g. child pornography, religious tolerance, working mothers
– Yes or No
Bias or conflict of interest

14. Gossip
Documents
Statements
Prior history

15. Ryan v Department of Human Services [2013] FWC 4060
FWC
• criticised employer’s failure to investigate mitigating
circumstances raised by E/ee
• Employer acted in a ‘seriously procedurally unfair manner’
• Awarded compensation (notwithstanding admissions of
misconduct)
The evidence rule

16. • You only need to gather evidence that supports your
case against the person– True or False
• You can consider evidence that is not relevant to the
case such as past behaviour- True or False
• If the respondent declines to be interviewed, this can
be held against them - True or False
• As the investigator it is appropriate that you make the final
decision on penalty- True or False
Procedural Fairness
Best Practice

17. Balancing act between confidentiality and
procedural fairness
How much do you need to tell the
respondent to give them a fair hearing?
Everything/almost
everything/minimal/nothing?
Confidentiality

18. What goes in the report?
Who gets the report?
How do we protect privacy of individuals?
Can we protect witnesses?
Confidentiality

19. “For victims of workplace
bullying…understanding how their complaint has
been dealt with and the reasoning underpinning
the investigation’s conclusions is just as
important to them as it is to the employer”
Josh Bornstein 2014
What is the role of the investigation
and it’s report?

20. An employee is caught on CCTV footage
assaulting a customer. Investigated,
employee is dismissed and lodges an
appeal for unfair dismissal. The CCTV
footage is viewed in evidence in the
hearing and dismissal upheld.
TV station request footage under FOI – is
it released?
Privacy

21. Legislative requirement to keep the identity
of the complainant confidential.
Can we do it?

22. Documents created to enable solicitors to
provide legal advice to clients are subject
to legal professional privilege
Can privilege help?

23. Ms SB [2014] FWC 2104 (12 May 2014)
“ I note that there is some tension
between some of my findings and those
apparently reached by the external
investigation on matters that were directly
relevant to this application”
Legal and Professional Privilege

24. To understand all the decisions made in a
workplace investigation and disciplinary
process the decisions need to be
‘reasonable’
What does that mean?
Concept of reasonableness

26. An Objective assessment of the action in the
context of the circumstances and knowledge of
those at the time
Including:
• Circumstances that led to the MA
• Circumstances whilst the MA is being taken
• Consequences that flow from the action
It may be relevant to consider the state and
psychological health of the worker
Reasonableness

27. How do you select
excellence in external
investigators
GREAT!
TERRIBLE!

28. Guiding principles of good reports:
• Purpose
• Accuracy
• Sufficiency
• Clarity
Principles

32. What should you look for?
What will reduce the risks of a dud?
Selecting Investigators

35. Questions?