Preventing Employee Theft Without Losing Your Shirt

- Tuesday, March 24, 2015
The High Costs of Employee Theft
The High Cost of Employee Theft: Is it Happening to You?

It can be a shock to discover that theft is occurring in your workplace. Each of your staff may have shone at recruitment, with no visible trust issues apparent. So how can we reconcile our valuable personnel with the fact that theft regularly occurs in the workplace? What did we miss? Let’s take a look at the typical way in which workplace theft occurs, plus some startling statistics about the costs to industry. 

The many ways to thieve

On shop floors, at workstations and in warehouses, Australians are stealing an accumulated $2 billion from retail employers alone each year, according to the Australian Retailers Association. Cold hard cash and inventory are certainly among the most popular ways for staff to steal from the workplace. In fact, staff members tend to pilfer from workplaces at approximately the same rate as customers. And for ordinary customers, we enjoy a 3% added cost to our purchases, courtesy of employee theft. But there are other, less obvious methods by which staff can fatten their pay packets. False invoices, inflated petty cash claims, sneaky discounts to friends, personal activities in company time, irregular credit transactions, undeclared client gifts, falsified documents and inaccurate time sheet entries can all work to strip away from the employer’s bottom line. 

Who and why?
We would perhaps not be surprised to learn that a lower-paid cashier has had a hand in the till to help pay their rent or groceries. Yet such generalisations don’t necessarily hold in the context of the ‘average’ workplace thief. In fact, the staff who tend to steal the most from bosses are those in the higher-paid and higher-access executive roles. With access to financial resources such as company credit cards, cab vouchers and expense accounts, white collar managers unfortunately take the gong for the greatest theft in the workforce. And for those personnel involved in daily dealing with accounts, revenue and general finance, the temptation to thieve can also be extremely evident. It can be a simple case of opportunity meets temptation for those workers given the greatest trust. 
When the chips are down
It is perhaps not surprising that attempts by workers to steal tend to increase during times of economic downturn; costs climb and paying bills can become harder each day. And it is also at this time that employers are actually more likely to take a zero-tolerance approach to fraud and theft. It is important, however, for workplaces to take a measured stance on workplace theft reduction. This includes not making any hasty decisions once a thief is detected. 
Tips for employers
If an employee is suspected of theft, it is important for management to carry out an objective and professional investigation. Rather than jump to any conclusions, be sure to implement a process that adheres to the principles of procedural fairness. It is also important to regularly check and update your policies and procedures around fraud and theft. As part of this, ensure that the employment contract you use at recruitment has strong and clear explanations of the types of misdemeanour that will not be tolerated. Think also about your staff morale, including strategies for keeping employees content. There is a direct link between unhappy workplaces and the amount of theft engaged in by workers. Also think carefully about the right steps to take once theft is uncovered. It might be tempting to make an example of the employee who slips a stapler into his backpack, coming down swiftly and hard. Yet instant dismissal in such a case – particularly if the worker’s record is otherwise unblemished – might lead to unfortunate legal repercussions for the business. Work out if this is something with sufficient gravity to warrant calling the police, or if internal measures might suffice. 
Keep it clear
Humans are of course a rather self-serving lot. Petty thievery might unfortunately be here to stay. Yet employers can take assertive measures to reduce the likelihood of workplace theft. First, develop and regularly check or policies and processes related to staff fraud and theft. Secondly, take measured action in relation to any allegations, and seek advice if you are uncertain about the best response. And finally – aim for a workplace with high morale and clear communication, to help reduce the temptation for wrongdoing among your staff.  

Paedophile at Work: What Now?

- Tuesday, February 24, 2015
You Just Discovered a Worker May Be a Paedophile: What Now?
You Just Discovered a Worker May Be a Paedophile: What Now?

Finding out that someone you know might be a paedophile can cause quite a shock. And when that person is an employee, a whole raft of questions can surface at once. Who reported this, and in what manner? How should you go about finding out the facts in the fairest way possible? Plus – how might a risk assessment be useful in the workplace around this issue? Importantly, don’t jump to conclusions. Thoughtful action and fair processes should be at the heart of everything that you do. 

How did this come to light?

The way in which the discovery occurred can directly affect your first actions. Consider a very grave case, such as where an employee who works with children has been witnessed by others engaging in inappropriate behaviour. This would require immediate action directed towards the welfare and safety of all concerned. Professionalism and restraint are essential in such circumstances. 

At the other end of the reporting spectrum, the nature of notification might be more speculative. If rumours about an employee arise regarding their apparent pedophiliac behaviour and opinions, it is important to take a more measured approach. Procedural fairness requires that unverified opinions be carefully analysed before any action is taken. A standard workplace investigation process would be an appropriate course of action in such cases. 

NB: Some jurisdictions have mandatory reporting and investigation requirements - make sure you know if you are required to report to ensure compliance.

Disclosure issues

Unfortunately the law is quite a grey area regarding disclosures required from employees at recruitment. Without specific mention being made in an employment contract, courts often determine that employees are not obliged to report former misconduct.  A well-drafted employment contract can, however, go some way to ensuring that particular types of past misconduct are revealed to the future employer. It is the coverage contained in this contract that can make a world of difference down the track. It might seem quite disturbing, but in medical terms a paedophile is not considered a criminal per se. What should concern employers is the presence of any past or potential child abuse actions, such as child molestation. It is therefore behaviour – past and present – that must be considered. 

Finding out the facts

As noted above, how you go about investigating the discovery of a potential paedophile in the workplace requires a careful and professional approach. The first issue is timing. If the dire scenario of inappropriate dealing with children in a workplace is reported, immediate action is needed prior to a more in-depth inquiry. Depending upon the strength of initial evidence, a period of instant stand-down might be necessary for the worker. Immediate safety for all involved should be provided, plus police assistance where necessary. Yet if the case is more one of speculation and innuendo, a thorough and measured workplace investigation might be more appropriate. 

The fair investigation
Where the initial information is less clear and/or children are not in the worker’s vicinity, an investigation should commence – premised on procedural fairness. Whether this is internal or external will depend upon workplace resources and capabilities. Documents such as the employment contract used at recruitment, any hard-drive material extricated by IT, and statements from colleagues might be some of the materials used within the investigation. Fairness demands that the worker in question be given an opportunity to comprehend and respond to any allegations made. A designated support person and the recording of discussions would be prudent measures to adopt. 
Conducting a risk assessment

With some researchers estimating the prevalence of paedophilic drive in the male community alone at 0.5-1%, the reality is that potential harm in and around the workplace is a live issue. It is of course impossible at interview to vet workers for all potential behavioural problems. Yet you can certainly assess for risk, and make any alterations that appear necessary. Some workplace features to look for when assessing paedophilia-related risk are: 

  • Targeted recruitment processes, including past-employment analysis, prior misconduct checks, criminal history checks and psychometric testing. Referee checking without exception. 
  • Widely-disseminated education materials within the workplace about what is/ is not appropriate in terms of behaviour, computer use, and personal interaction etc. 
  • Clear and specific directives for employees who work with children, including adult/ child ratios, plus touch, toileting and communication protocols. 
  • Appropriate space and lighting features to ensure open work areas. 
  • Well-publicised reporting procedures for workers, enabling fast and responsive action where problems are detected or suspected.    

If significant risks are revealed around potential paedophiliac behaviour in the workplace, a plan for rectification will be in order. Where employees are working with children, this would almost certainly become a matter of necessity. Because however busy you might be – some measures are worth taking the time to get right. 

Four Steps to a Great Investigation Report

- Tuesday, February 17, 2015
Steps to a Great Investigation Report
Four Steps to a Great Investigation Report

By the time a workplace investigator has reached the stage of compiling the investigation report, many hours, documents and interview outcomes have no doubt accumulated. How to bring all of this together effectively into a quality report might seem quite challenging. Yet, by dividing the task of reporting into a step-by-step plan, the complex assortment of materials gleaned from your workplace investigation can be streamlined into a useful and professional report. 

Revise the brief

The first thing to consider before you begin compiling the report is whether or not the Terms of Reference (TOR) have been met. These were established at the beginning of the investigation between yourself and the employer, setting out the key people, queries and facts relevant to the task. With the TOR in mind, ask yourself if you have achieved all necessary aspects of the investigation. 

Prepare your draft

The best investigation reports are well planned and logically organised. With the Terms of Reference and your evidence on hand, you can begin to sketch out and double-check your preliminary findings. Let us say that you feel confident that an allegation of misconduct has proven true as a result of your investigation. You would double-check and note all evidence relevant to this particular incident, to ensure that available material does in fact support your finding. Issues of procedural fairness, such as the inclusion of all relevant witnesses, should be kept in mind. 

Write with future readers in mind

A well-structured workplace investigation report will have one or two key features. First, the format will be clear and sequential, with an easy-to-follow index of both the report body and appendices. Secondly, the language of the report should be as clear and non-technical as possible. Don’t forget that the employer wants a very clear idea of what happened and what you have found – not a file full of big words! Plain language ensures that your objectivity is on show. Also, make the report itself relatively brief. The heart of the report document itself should simply cover the following four core components, with appendices attached. Objective and neutral language is essential, in order to clearly demonstrate that procedural fairness has remained front-and-centre during the task. 

A logical sequence

Our four-part plan can help you set our your investigation report logically, ensuring the report is complete and easy to understand.   

Part 1 - Overview

The first part of the report, the introduction, will give a broad-brush overview of both the critical events and the process of the workplace investigation itself. A summary of the TOR, including all allegations and relevant parties, will be included. Following this, an accurate timeline of investigative activities is set out so that readers get a feel for how and when each allegation arose and was dealt with. In general, you are providing a birds-eye view of events preceding the report. 

Part 2 – Findings

These are your findings relevant to the allegations. This might seem premature, as you are yet to introduce the evidence. Yet, if we consider future readers of the document – employer, possible lawyers and/ or courts and tribunals – placement of the findings near the start of the report creates a user-friendly format. Set out each allegation, plus a short statement as to whether or not you are satisfied on the basis of the evidence that it is founded in fact. 

Part 3 – Evidence

In the third section of the investigation report, describe available evidence as it relates to the allegations in question. Clearly refer readers to the numbered appendices at the back of your report, so that statements can be crosschecked with particular evidence. For example, you might refer to sections from two transcripts which corroborate allegations of a third party’s behaviour. Ensure that the relevant sections are appended, and avoid emotive language (descriptions such “damning document” for example) to ensure that your compliance with procedural fairness is apparent to all. 

Part 4 – Summary and recommendations

Finally, part 4 will summarise your workplace investigation and the outcomes achieved. In particular, you will include any recommendations if requested in the TOR's. These should be numbered and refer back to the findings. As an example, you might structure a recommendation as follows: “Due to allegation B having been made out against Mr TL (refer page 1 of Findings), disciplinary action of X is recommended.” 

Strive to be thorough and clear

By checking for completeness, drafting well and utilising our four-part report outline, you can ensure that all of your hard investigative work pays off. Write plainly and set your work out logically. With a clear and objective approach, you can generate a workplace investigation report that will pass muster as being fair, useful and professional.    

You're Fired! Tips for Exiting Employees Gracefully

- Tuesday, February 03, 2015
You're Fired! Tips for Exiting Employees Gracefully

It's understandable that as a business owner and employer, certain members of your staff will occasionally take you to the edge of patience. Whether there are problems around lateness, poor output, unsafe practices or terrible attitude – there some staff members who you know will probably just have to go. When faced with a worker who you simply no longer want on your work floor, it pays to think through the best steps to take in particular circumstances. 

Conduct at the border
 As tempting as it can sometimes be, sacking someone in the heat of the moment can cause significant longer-term difficulties for many employers. While some extreme conduct will justify immediate dismissal, most situations will call for a more measured approach. So what sorts of misconduct could be described as ‘serious’? Unfortunately, due to the diverse and sometimes bizarre ways that humans can and do misbehave, there is no clear-cut list of every type of conduct relevant to employee dismissal decisions. Practically speaking, criminal activity such as theft, assault or fraud will in many cases justify immediate employer action. But there are also countless borderline cases of employee misconduct. Industrial courts and commissions have grappled with many of these across the years, with varying outcomes for employers. Experts in the field of industrial law are able to assist in gauging the right approach for your situation. 
Follow the path 
In most cases of unsatisfactory conduct on the part of an employee, the industrial relations system can provide helpful guidance on the correct process for dismissal. Current industrial law and applicable awards will often contain the steps that an employer needs to take prior to terminating the employment of a worker. Courts and commissions tend to take a dim view of instant dismissal without any prior warning, except in rare cases. Depending upon the worker’s job level, duties, and the type of misconduct, it is generally advisable for employers to have carried out clear and documented remedial actions, such as written warnings or transcribed meetings, prior to dismissal. 
Counting costs
It is not uncommon for an employer to decide to sack a worker on the spot, no matter what the consequences. Walking them to the gate can seem like a small price to pay for restoring the business to productivity and calm. The significant costs of such a decision can however come in a number of forms. For example, if the worker takes successful action against the employer for unfair dismissal, the business might well be forced to pay not just for quantified losses but for the legal costs of defence. Further, a wrongly dismissed worker might claim that they have suffered a psychological injury due to ‘unreasonable management action’ at the work site, particularly if heated words have been exchanged. Aside from visible costs, preparing defence materials and speaking to lawyers and claims managers can also extract time from the business that most employers simply can’t afford. 
A quiet word 
Sometimes it can take every ounce of restraint not to instantly ‘walk’ a worker whose conduct is seriously bad. And in certain cases, employers will need to do just that, for safety and legal reasons. In the alternative, it can pay to hold your fire and seek some advice on the issue. Talking the matter through with an expert in workplace matters does two things – it helps you vent your spleen to a third party, and it gives you the opportunity to find the best solution to this particular employee problem.

Can I Keep the Identity of the Complainant Confidential?

- Tuesday, December 23, 2014
Can I Keep the Identity of the Complainant Confidential?

When conducting an investigation into a workplace complaint, a number of variables need to be carefully managed. It is a given that once staff become aware of the investigation, reactions will vary widely. Be prepared for emotional responses to both the alleged incident, and the complaint itself. Further, bear in mind that alleged wrongdoers sometimes not only show hostility during investigations – they might in fact demand that you provide the identity of the complainant. In defence of their position, such participants see it as their right to know immediately who it was that complained. Yet what if the complainant has firmly requested that their identity remain confidential? In such awkward circumstances, you must of course maintain a professional detachment. Whether or not you can or should reveal the identity of the complainant is not a simple matter. We examine some of this complexity. 

Policies and promises

It is actually not unusual for a complainant to request that their identity be kept confidential. Before making any hasty promises to that effect, it is important to consider the legal background. Even if you and the employer make every effort to maintain confidentiality, it is quite possible that the complainant’s identity can still be revealed under Freedom of Information (sometimes Right to Information) legislation. It would be advisable to let the complainant know that this is a possibility regardless of your decision. 

Blowing the whistle
It’s important to note that in contrast to any FOI accessibility, state and federal whistleblower protection laws will safeguard the complainant’s identity in certain circumstances. This will most often be necessary where the complaint is connected with issues of far-reaching corruption, ethical breaches, or official misconduct. In fact, a failure to protect whistleblowers in such cases can be classed as an offence itself. In either case – FOI or whistleblower issues – the employer hopefully also has well-drafted policies explaining to staff the processes involved in complaint investigations, including the parameters around confidentiality. If this is not the case, you have a duty to carefully examine the complainant’s request for confidentiality before making a call one way or another. 

Gauging safety and sensitivity

In certain instances, it will not be fair or warranted to promise confidentiality regarding the complainant’s identity. And it might in fact lead to tainted findings if the accused party is not given a chance to fully defend themselves against the complaint made. If a court later determines that certain findings were made without sufficient attention to procedural fairness, then this evidence could be given minimal weight, or even dismissed. 

As the principle in Briginshaw sets out, in more serious cases, the balance of probabilities can only be met utilising high-quality, untainted evidence. For this reason, confidentiality undertakings should be given only after careful consideration. Yet sometimes the need to maintain confidentiality regarding the complainant’s identity will be entirely obvious and necessary. Where threats, safety and/or mental health issues form part of the equation for example, confidentiality might well be non-negotiable. By involving the employer in your preliminary information gathering, you will be able to gauge any particular sensitivity within the workplace.   

A question of motivations 

There is always the possibility that a complainant has brought the complaint simply on vexatious or false grounds. Workplaces can of course be hotbeds of dislike and grudges, where comments and actions can be misconstrued, distorted through rumour, or even entirely fabricated. Carefully assess if the complainant’s request for anonymity could in any way be impacted by these factors. Your professional judgement will then be required to assess the merit of the request, taking account of all the circumstances.

Tread with care
If a complainant requests that their identity remain confidential, ask yourself – what do the employer’s policies indicate? Have you explained potential FOI issues? Are there particular issues around safety and/or sensitivity? And could a vexatious complaint form part of this investigative equation? With good background information from the employer and an overall strategy of investigative transparency – you can face the anonymity request with a clear plan in place.

Want to Audio Record Interviews But Not Sure How?

- Tuesday, December 16, 2014
audio recording
Want to Audio Record Interviews But Not Sure How?

When you are called upon to investigate a workplace issue, the desire to get a clear and accurate picture of the problem is understandably strong. Recording the interviews seems like a good idea – you’ll have a word-for-word transcript and be able to concentrate more on the conversation. Yet it is important to consider a number of factors. Firstly – what are the legal issues around audio recording, secrecy and permission? Secondly, what sort of introduction is suitable to an investigative audio recording? And in terms of the resulting transcript, which kinds of requests are likely to arise? Recalling that procedural fairness must be at the heart of all workplace investigations, it certainly pays to do your homework before audio recording an interview.

Permission issues 

In many cases, interviewees will be quite happy to give permission for you to record the conversation. Others might be fairly reluctant or actually refuse to give recording permission at all. Knowing these variations, it might be tempting to simply record your discussions without permission. This is of course quite possible technologically. 

But is it legal? In Australia, the laws on improper and/or unlawful surveillance differ across jurisdictions, and it is important to understand the stance taken in your state or territory. In many cases, permission will be implied if the person is told of the recording and does not overtly object. Yet if permission is refused and a recording is nevertheless made – or is made in secret without any discussion – the material will almost certainly have been obtained unlawfully. Such recordings may nevertheless still be admissible in the federal jurisdiction (including the FWC) in accordance with the Evidence Act 1995 Cth. Admissibility will hinge upon elements such as whether or not the conversation was ‘private’, the probative value of the evidence, and the level of impropriety involved in the secret recording. 

Important introductions 

Once the tape is rolling (or device is capturing!) your first crucial task is to make introductions that are clear, welcoming and comprehensive. Everybody in the room should be given the opportunity to return your greeting, and state their name and work title for the record. You can also give a brief run-down of the purpose of the interview, giving participants a chance to ask any questions about the process. 

As well as helping everybody to find their bearings, such general chat can serve to ease everybody into the interview as they work out who’s who. And a further benefit will be the accurate identification of voices by the person typing the transcript. In the bid for accuracy, it is vital that the transcript represents a true record of ‘who said what’. If a subsequent transcript of the conversation reveals that the interviewee was uncertain, confused or pressured in any way, then the probative value of the material in future proceedings might be markedly reduced. Providing open, informative and clear introductions will help to ensure that procedural fairness is evident at all times within the workplace interview. 

Transcript uses 

After the workplace interview, the audio recording will be converted to a typed transcription. Request that the interviewee read and sign the transcript to confirm accuracy. But what if a person refuses to sign? Such a situation can arise for a number of reasons, not least of which can be that they are upset and shaken at having talked through the workplace issues. Yet, if we think logically – the entire discussion is there in aural form and can be accessed at future times, such as in court. This is why a transcript is in many ways superior to a statement from the interviewer constructed from written notes; arguments can be made that the interviewee was misrepresented in cases where only notes were taken. 

Be aware also that an interviewee might ask for a copy of the transcript. It is best to explain that, because the employer is coordinating the investigation, it is up to them to decide on what investigation materials might be given out. Importantly, privacy issues will be relevant. For example if a worker goes back to the office waving a transcript with people and incidents named therein, the investigation’s overall viability could be cast in doubt. 

Obtaining an audio recording of a workplace interview is an excellent idea. Accuracy will generally be high, assisting clarity throughout the investigation and beyond. Keep in mind best practice for recording permissions, introductions and transcript uses though – consideration of these variables will help to ensure that the overall quality of your interview is greatly enhanced.

Investigating Fraud? When Do You Have to Tell the Respondent?

- Tuesday, October 28, 2014
Investigating Fraud
Investigating Fraud? When Do You Have to Tell the Respondent?

The possibility that an employee might be committing fraud can raise many emotions. As with other misconduct, disappointment can be pronounced. When fraud is suspected against either the business itself or customers, plain anger towards the potential culprit can also arise. It is this high emotion that creates the necessity for cool heads in any fraud investigation. If you are involved in an investigation where fraud is alleged, timing and a methodical plan are crucial to ensure that the process is sound. Depending upon the nature and extent of the fraud, the time at which the respondent should be told and/or interviewed can vary. The quality of any documented evidence you collect can have a notable effect on admissibility or weight in any later court proceedings. For this reason, adhering to procedural fairness in the workplace investigation will be vital. 

Get prepared

Your workplace investigation plan should include a basic timeline of actions. Top of the list will be the gathering of information relevant to the allegations of fraud. Be careful about how and from whom this will be collected. At this stage, as few people as possible should be involved in order to maintain confidentiality and the integrity of the investigation. Collect interview notes, documents, relevant screen dumps and any other physical evidence that purports to implicate the respondent in the fraudulent activity. This is also a good time to fully assess any possible motivations or overt emotional issues with the informant/s. Any later interview with the respondent needs to be based upon available facts – not any aspersions cast by an angry individual. Make a decision on any need for immediate action, particularly whether police need to be called if an employee is AWOL with fraud proceeds, for example, or data or money is currently being misappropriated. Once you have enough valid information, decide upon your next steps. It may be that the allegations against the respondent are clearly groundless. Perhaps there was a mere accounting error, for example. But if the allegations appear to have some substance, it might well be time to draft appropriate interview questions. Sometimes, the first person you talk to after the claimant is the respondent - but only after other documentary evidence has been secured. This gives them an early chance to explain their story, plus reduces the chances of workplace gossip or slander about the respondent snowballing unfairly. 

The interview

Having secured an interview time with the respondent, think through the nature and order of questions that you need to ask. The basic purpose of the meeting should be explained, without any blunt statements or accusations about the alleged fraud. It can help to be quite specific about the concerns raised by any informants: “There are concerns being raised about some anomalies that Brian found in the customer invoicing drive,” or “Your employer has some concerns about repeated discrepancies in reconciliations over the last six months”. Recalling the imperative for procedural fairness in the workplace investigation, maintain this objectivity throughout the remainder of the interview. Allow sufficient time for explanations, and ask inquisitive questions that demonstrate your open mind throughout the process.

Cater for reactions

Fraud is a serious accusation. Whether or not the respondent is involved in such behaviour, their individual emotions of indignation, shame and/ or anger might well surface. Assess whether the interview needs rescheduling, if a support person is needed, as well as any requests for legal representation. Also give the respondent options for response. Indicate that an immediate response is not required and they might prefer to respond at a later (agreed) time. Explain the remainder of your investigation plan and associated timeline for actions, in order to provide some sense of order to what might well be a moment of shock for the respondent. 

Cool heads rule 

The alleged fraud might tempt employers, owners and managers to simply confront the respondent in angry indignation. Perhaps understandable – but such action must be avoided in order to maintain the integrity of the investigative process. Remember, your objective in carrying out a well-constructed workplace investigation concerning the alleged fraud is to gather quality evidence in a fair and consistent manner. How and when to let the respondent know can be a delicate matter, dependent upon the nature and urgency of the facts in question. 

For training in the best ways of handling this type of investigation, WISE Workplace offers a Certificate IV in Government Fraud Control and a Diploma in Government Fraud Control.

How to Plan a Workplace Investigation and Why it’s Important

- Tuesday, August 19, 2014

How to Plan a Workplace Investigation and Why it’s Important

If you are conducting either internal or external workplace investigations, it is crucial that you formulate a unique plan of action for each investigative process. No two workplace issues are the same, and a well-structured investigation plan will ensure that you account for the many variables that can arise. Almost certainly, you will be dealing with complex fact scenarios and high emotions within the workplace. Without a well-planned workplace investigation process, such factors can lead to distractions and pitfalls that have the potential to take the investigation off-track. The key factors to build into your investigation plan include:

    • Maintaining procedural fairness during the workplace investigation
    • Planning how to elicit the best evidence
    • Ensuring full coverage of pertinent issues
A good workplace investigation plan guides the process - yet retains sufficient flexibility to accommodate unforeseen developments.
Maintaining procedural fairness e

Legally, procedural fairness is not as simple as ‘being fair’ in our dealings. The very structure of a procedure such as a workplace investigation must also appear fair to an objective bystander. For example, a well-meaning internal investigator might dissuade a worker from bringing a support person because ‘this is just a friendly chat’ about alleged misconduct. It might well transpire that any evidence gathered in this process is tainted by a lack of procedural fairness. A cogent plan for how and when staff and management will be engaged is crucial. If the size or nature of the organisation is such that such fairness cannot be guaranteed, engagement of an external investigator might well be the prudent option. For external investigators, assessing any potential power dynamics, access issues or managerial support for the investigation can all enable the investigator to create a robust and procedurally fair workplace investigation plan, suitable for individual workplaces.

Plan for the best evidence

In workplace investigations, it pays to keep in mind that the best reports and recommendations are built upon sound evidence. The Briginshaw principle reminds us that although there is only one civil standard of proof – the balance of probabilities – the seriousness of the allegations and possible consequences in a particular matter will affect whether available evidence is sufficiently probative to meet that standard. In the heat of the moment in a workplace investigation, it can certainly be difficult to remember your rules of evidence, with a view to possible future actions! Unfortunately with workplace disputes often creating a veritable minefield of evidentiary blunders such as hearsay (‘I heard from Henry that Sheila saw Jane take the printer’), it is best to plan for the location and elicitation of the most probative available evidence in the circumstances. In your investigation plan it helps to go over any written brief or preliminary notes you might have on the physical and social characteristics of the workplace, in order to timetable your evidence-gathering strategy. Are original documents onsite, are private interview rooms available, are any key staff members on leave, do managers encourage support people for interviewees? With a little forward planning, the workplace investigation can extract strong and compelling evidence.

Ensure full coverage of pertinent issues

A workplace investigation should proceed with clear and detailed terms of reference (TOR). The investigator must be clearly informed as to the scope and scale of the investigation, in order to be able to create an investigation plan that most closely meets these parameters. Within that plan, it will be necessary to identify the relevant aspects of employment law or related legislation, in order to gauge the most pressing issues to investigate relevant to the TOR. For example, recent case law regarding exclusionary provisions within anti-discrimination legislation might affect the types of relevant issues to best explore in a given workplace. As well as planning for legal and factual issue coverage, a sound investigation plan will ensure that the workplace investigation does not head off on a tangent. It can take strong professional aptitude to compassionately hear a story, while also limiting interviews to the pertinent issues.

In order to be fair, to collect good evidence, and to cover all of the pertinent issues, a detailed workplace investigation plan is a must-have for all workplace investigators.

What are the Steps Involved in An External Investigation

- Thursday, April 10, 2014


Workplace misconduct, bullying and harassment are surprisingly common among Australian organisations. Although many problems can be managed and resolved through in house human resources and management, sometimes hiring an external investigator is the best option.

A good workplace investigation follows a series of steps to ensure a fair outcome for everyone and an unbiased investigation. Although every investigation is slightly different here is a brief outline of the steps that are usually involved in the investigation process:

1. Define the scope and Terms of Reference
Before engaging an external investigator or with the assistance of the investigator, clients must determine what is wrong with the behaviour that has been reported – define the scope of the investigation and prepare initial allegations or issues to be investigated. Clearly articulating the scope and allegations made in writing to the investigator is a high determinant of success for the investigation and welfare of staff involved.
2. Appoint an external investigator
It’s important to take time to find the right external investigator. A poorly undertaken investigation could be a waste of time and money and could leave you liable for additional costs in the long term, especially if a dissatisfied employee decides to take further action against the outcome or the way the investigation was conducted. Make sure you find a professional investigator with a Private Investigator licence. The licencing process ensures minimum qualifications/experience, and a code of practice. After establishing the correct licence find an investigator with a good track record, solid experience and understanding of the law, particularly in the specific area you are investigating.
3. Analyse the information that’s available
The first step an external investigator should take is to thoroughly examine the information that’s available. In cases of harassment this means looking at all the records and any evidence on either side and gaining a general understanding of the circumstances, workplace policies and any issues that could have led up to the alleged bullying or misconduct. Once the investigator has an understanding of the situation he or she can make an informed decision as to how to proceed.
4. Interviewing the complainant and witnesses
After the investigator has discussed the situation in depth with the client, the next step is to interview the complainant, any witnesses to gather further information. Interviews should be conducted in a private location, recorded and allowing the interviewees to have a support person present if they wish. Copies of records must be provided to individuals to check and sign. In many investigations the initial interviews may reveal new or different information or additional leads. If this is the case, follow up interviews may be required to verify or further investigate new allegations or information.
5. Examination of records
The investigator should be given access to all relevant documents, emails and available digital data to corroborate statements made by witnesses. To ensure impartiality, the examination of disciplinary records should only be undertaken if relevant to the facts at issue. The final decision maker can use prior disciplinary records to determine an appropriate penalty but this should not be considered at the investigation stage.
6. Putting the allegations to the respondent
Only when all the evidence has been gathered is it appropriate to speak to the respondent. Speaking to the respondent last ensures that all relevant allegations and evidence can be put to the respondent for a full and fair response. It is a requirement to meet the obligations under procedural fairness to provide the respondent the opportunity to respond to all allegations this should be done in an environment that is supportive. Audio record this interview wherever possible and make sure the respondent gets a copy to sign. Respondents should always be given the opportunity to have a support person present to give support but not advocate on their behalf. It is fair to provide an opportunity for a written response to be provided also.
7. Analysis and report
Once all the information has been obtained, the investigator will analyse the information and produce a report detailing their findings. The report should detail the investigator’s findings, whether the allegations of misconduct or bullying can be upheld and show how they reached their conclusion. They may also make recommendations for further action by management.
8. Notify parties involved
The complainant and the respondent should be notified of the outcome of the investigation and what further steps are required on both sides. It’s important that any workplace investigation follows a logical process and that findings are carefully detailed to avoid further legal action and ensure a fair outcome. A well-managed investigation can help resolve the situation and lets everyone move on as quickly as possible. Contact us today if you have any questions about the investigation process or to find an experienced, professional external investigator.

Making administrative decisions stick: procedural fairness at work

- Wednesday, June 26, 2013


A starting point for any court of law when assessing the legitimacy of an administrative decision is fairness – procedural fairness

Now that Safe Work Australia has released the draft model code for bullying in the workplace, employers need to ensure that procedural fairness is at the heart of their response to bullying issues.

A fundamental concept of law is that whenever you make an administrative decision about an employee you need to ensure that the process was procedurally fair.

This applies uniformly to managing misconduct and performance management. Ensuring that actions are taken as a result of ‘reasonable management action’ involves abiding by these principles and sticking to your policies and procedures.

The case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation.

The NSW Industrial Relations Commission found that the investigation process was so infected by procedural deficiencies as to contaminate the process.

The three key principals of procedural fairness are:
  • The right to be heard
  • The right to an unbiased decision maker
  • The right to have the decision based on evidence
Achieving an unbiased decision can be difficult, the decision makers must not be biased, that is:
  • Actually
  • Potentially or,
  • Perceived as being

It is not enough to get in a second or third opinion to form a committee of decision makers. Bias is assessed using the principle of one biased all biased, rendering any such decisions as biased as if they were made alone. 

When assessing whether there is perceived or potential bias, the law uses the reasonable person test to make the assessment: would a reasonable person in full possession of the same information think there was a potential or perceive a bias?

Flaws found by the Industrial Relations Commission (NSWIRComm 51 ) included:
  • the relevant decision-maker admitted that she: (a) had a pre-determined view of the outcome of the investigation prior to its completion and (b) took irrelevant matters into consideration in making her decision,
  • the initial investigator had been involved in one of the alleged incidents and had previous disagreements with the employee under investigation,
  • two witnesses present at the alleged incidents were not interviewed,
  • there were unreasonable delays in the process,
  • the employee under investigation was not given details of the allegations against him until he was interviewed many months after the investigation process commenced.
Putting this into practice in workplace investigations or in performance management practices:
  • The right to be heard means making sure the employee has enough information to know what they have done wrong, and provide them with an opportunity to be interviewed and provide their side of events.
  • Ensuring an unbiased decision maker means removing decision makers, managers and investigators who have had prior dealings with the employee that could affect their view of the current case. Anyone with a conflict of interest in determining the case without bias should be distanced from the proceedings.
  • The right to have the decision based on evidence entails collecting all the available evidence within reason, and assessing that evidence without bias or favour. Knowing how to weight the reliability of different forms of evidence is critical in drawing the correct conclusions in law.

Safe Work Australia Draft Code of Practice - Preventing and Responding to Workplace Bullying

Procedural Fairness: a practical guide for workplace investigators