Conducting Rigorous and Fair
Workplace Investigations
Grevis Beard, Worklogic
Thursday 4 June 2015
What we will cover today…
 “What are you dealing with?”
 The seven golden rules of procedural
fairness
 Why it matters: Learning from recent
disciplinary cases
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So what are you dealing with…
What is the core problem or issue:
Underperformance?
Misconduct or inappropriate conduct?
A mixture of the above?
Something else? (e.g. “Systemic/process failure...)
Do you even have enough information to know?
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Underperforming
employees
Misconduct
•Performance Management?
•Unlawful actions (misappropriation,
regulatory breach etc)
• Quality & output of work,
capacity, skills and effort
•Misconduct in the workplace (sexual
harassment, bullying, fraud etc )
•Consider contract and PD
expectations
•Breach common law duties, breach
contract/employment policies
•Occurs over period of time
•May be one incident or ongoing
•Impact on organisation’s KPIs •Impact on workplace, culture, other
individuals, liability for others injured
Once you have identified the core issue…
• If it appears to be misconduct (ie more likely
a breach of policy in general, but note KPIs)
• What do your policies say? What do your
policies require?
• “How big is it”?, and, “How bad is it”?
• What is the history of the issue, and person,
to date?
• Who has been involved to date, and in what
capacity ?
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Once you have identified the core issue…
•
•
•
•
What documentation exists to date?
What are the roles and personalities involved?
What are the broader ramifications of this matter?
Whom do you need to consult with, and at what
stage?
• Whom do you need assistance from, and at what
stage?
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Procedural fairness
is key
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PARTICULARLY WHEN
CONDUCTING INVESTIGATIONS…
• “In the beginning”: deciding the
investigator, scope and process...
• The “seven golden rules” for formal
investigations
• Report format and findings – and
what happens after
LET’S START
AT THE VERY BEGINNING
A number of factors will influence your decision on
whether to undertaken an investigation into
inappropriate conduct allegations, and if so, how:
• The severity of the allegations
• Role of the complainant and respondent
• ER and OH& S risks
• Internal capacity and time demands/constraints
LET’S START
AT THE VERY BEGINNING (cont)
A number of factors will influence your decision on whether
to undertaken an investigation into inappropriate conduct
allegations, and if so, how:
• Complaint handling policy/contractual requirements
• Disciplinary processes/outcomes relevant potentially
• The sensitivity of what you are investigating
• External forum for hearing bullying complaints (FWC)
• The need for legal advice and LPP to apply
LET’S START
AT THE VERY BEGINNING…(cont)
• If you lack time, capacity, or know-how, of if there is a
possible perception of bias, you may need an
independent external investigator
• If you do undertake the investigation yourself, follow the
‘Seven golden rules’ of formal investigations…
THE SEVEN GOLDEN RULES
OF A FORMAL INVESTIGATION
I.
Use a procedurally fair process;
II.
Provide specific allegations and advise about outcomes before
seeking a response;
III. Ensure you, as investigator, are impartial;
IV. Maintain confidentiality (where practicable);
V.
Do not deny a participant a support person;
VI. Act diligently and promptly;
VII. Make findings on the evidence collected, on the balance of
probabilities.
RECENT “FATAL FLAW CASES”
RULE 1:
Use a procedurally fair process
FATAL FLAW CASES
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014]
FCAFC 177
 After a 12 day tour, Ms Romero, an Officer on a supply ship, the
‘Far Swan’, emailed HR, alleging bullying by her Captain.
 The short, undetailed email discussed several issues, including
concerns about her alleged bullying treatment by her Captain.
 Ms Romero did not indicate she was making an informal or a formal
complaint under the Policy.
 On the basis of the email, Farstad immediately interpreted Ms
Romero’s communication as being a formal complaint as described
in the Policy, and instigated an investigation into her complaint.
FATAL FLAW CASES
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014]
FCAFC 177 (Full Court of the Federal Court)
Flaw No 1 – failure to follow policy:
 Undertaking the formal investigation was in itself a breach of the
Workplace Behaviour Policy.
 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.
 The email should not have been considered as a ‘formal
complaint’ under its Workplace Behaviour/Grievance Policy. The
email did not refer to that Policy, made no reference to a ‘formal
complaint’ and did not contain details of the complaint.
FATAL FLAW CASES
Flaw No 2: Failure to systematically investigate:
•
•
•
•
The Captain was interviewed first, where he made a number of
counter-allegations;
During Ms Romero’s interview, questions were almost solely
about the Captain’s counter-claims.
Ms Romero was not provided with advance notice of the
particular allegations made by the Captain against her.
The Captain’s counter-claims should have been kept separate
from the investigation (and dealt with under the EPA), instead
of being ‘rolled up’ in the one investigation.
FATAL FLAW CASES
Flaw No 2: Failure to systematically investigate (cont.):
•
•
Ms Romero’s concerns were not collated prior to the interview
with the Captain. He had no chance to adequately respond to
them. Ms Romero’s complaints were therefore largely not
dealt with.
The investigation was not documented properly – post it notes
at times and no complete record of interview.
FATAL FLAW CASES
Ryan v Department of Human Services [2013] FWC 4060 (9
July 2013)
•
•
•
•
•
•
Failure to properly investigate mitigating factors for misconduct
Failure to provide notes of meeting to employee
Failure to provide the employee with a proper opportunity to fully
respond to the allegations
Failure to follow internal HR procedures
Failure to take into account employee’s remorse and admission
Failure to take into account employee’s unblemished work record
and state of mind
FATAL FLAW CASES
RULE 2:
Provide specific allegations and advise about
outcomes before seeking a response
FATAL FLAW CASES
(natural justice)
Oui v Townsville Aboriginal & Torres Strait Islander
Corporation Health Services [2012] FWA 2713
• The investigator made findings of fact about 2 new
allegations that arose during the investigation that were
never put to respondent and used to justify dismissal
• Investigation was unfair and the report unsatisfactory for
findings reached; no valid reason for dismissal
FATAL FLAW CASES
(natural justice)
Boal v BHP Coal Pty Ltd [2014]; Faulkner v BHP Coal Pty Ltd [2014]
The FWC held that, in both cases:
• The main flaw in both investigations was a failure to
provide natural justice to each employee
• Both employees responded to allegations contained in a
Show Cause letter, but were not given adequate
opportunity to respond to further evidence that was later
relied upon in dismissing them.
FATAL FLAW CASES
(natural justice)
Boal v BHP Coal Pty Ltd [2014]; Faulkner v BHP Coal Pty Ltd [2014]
In the first case, it was evidence of mobile phone records from other
days were considered.
In the second case, it was evidence of the employee using the mobile
phone (as distinct from just having it), evidence that he was actually
operating the vehicle at the time of using his phone), and finally, his
past performance or conduct (evidence of past inappropriate conduct)
This meant that the employer was not able to rely on otherwise valid
grounds for dismissal. Both employees’ applications for unfair
dismissal under s.394 were therefore successful. Both employees
were reinstated.
FATAL FLAW CASES
RULE 3:
Ensure you, as investigator, are impartial
FATAL FLAW CASES
(investigator bias)
Keiko Adachi v Qantas Airways Limited [2014] FWC 518 (10
February 2014)
• Was it a tussle or an assault for the medical certificate ?
• The existing relationship between the investigator and a witness led
the investigator to accept that witness evidence despite 12 other
cabin crew members reporting nothing unusual that day.
• The investigation was flawed. The invetigator reached conclusions
that were not available to him upon the evidence because of his
“high personal and professional regard” for the other employee
involved in the alleged incident…the investigator was unable to
believe that this employee’s narrative was “anything but totally
credible”.
FATAL FLAW CASES
RULE 4 - Maintain confidentiality
CFMEU v MSS Strategic Medical and Rescue [2014] FWC
4336
Support person not to disseminate info to colleagues...
RULE 5 - Do not deny a support person
Joan Royle v Cheetham Salt limited [2008] AIRC 709
The employee offered a support person but significance of
meeting not communicated
FATAL FLAW CASES
RULE 6:
Act diligently and promptly
FATAL FLAW CASES
(lack of thoroughness)
Oui v Townsville Aboriginal & Torres Strait Islander
Corporation Health Services [2012] FWA 2713
• The investigation report did not state who was
interviewed and what evidence supported the findings
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014]
FCAFC 177
• Investigation not sufficiently documented (use of ‘post it’
notes)
FATAL FLAW CASES
(delay)
Gilmour v Commissioner of Police [2009] NSWIR Comm 51
– 18 month investigation was unreasonable delay
Nikolich v Goldman Sachs J B Were Services Pty Ltd [2007]
FCAFC 120 – unreasonable delays in responding to
complaint
Dr Falk v ACT Health [2007] AIRC 613 – allegations
reinvestigated, “meandering chaos”
FATAL FLAW CASES
RULE 7:
Make findings on the evidence collected, on
the balance of probabilities.
FATAL FLAW CASES
(lack of analysis or evidence)
Oui v Townsville Aboriginal & Torres Strait Islander
Corporation Health Services [2012] FWA 2713
• The investigation report did not state who was
interviewed and what evidence supported the
findings
FATAL FLAW CASES
(lack of analysis or evidence) (cont)
Jakob v Director General, Department of Education
[2012] WAIRC 01063
• dismissal was unfair: Briefing Note contained
incorrect or misleading comments that painted a
“dim picture of the applicant and were very
prejudicial” and was “designed to influence the
Director General’s decision” to dismiss the
employee. In addition the Briefing Note was not
put to the employee to respond.
SO, ….
 Make sure you communicate your policies, be clear and
consistent – induction, training, enforcement of them
 “Scope creep” in investigations: abide by natural justice
at all times…you may need to “go back a step”
 Be clear about what is a “complainant led investigation”,
and an “organisation led investigation”
 Don’t mix up “performance concerns” with a workplace
investigation.
IF YOU HAVE A
“HIGH CONFLICT PESONALITY”
IN AN INVESTIGATION…
• Do not assume that the motives and drivers for the complaint are the
real issues
• Look for cognitive distortions, exaggerations, emotive conclusions in
complaint and evidence
• Investigate early, rigorously but respectfully (with empathy and care)
• Set limits to reduce cost and time/give HCP tasks
• Respond quickly to misinformation and breaches of confidentiality
• Maintain a healthy scepticism
• After investigation set clear limits on acceptable behaviours; monitor
and enforce
A tale of two cases...
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KING V CATHOLIC EDUCATION OFFICE DIOCESE
OF PARRAMATTA [2014] FWCFB 2194
• The employee teacher, Mr King, was dismissed for
driving students of the employer to surf life saving
activities in his private vehicle without other adults
present.
• Occurred despite the employer's specific direction to the
employee.
• It was also against its express policies. He made an
application for unfair dismissal under the Fair Work Act
2009.
What was the decision of the Fair Work Commission?
Was this behaviour a valid reason to dismiss the teacher? Fair ?
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KING V CATHOLIC EDUCATION OFFICE DIOCESE
OF PARRAMATTA [2014] FWCFB 2194
The employee’s refusal to obey the employer's direction
and policies gave it a valid reason to dismiss the employee,
because there was a sufficient connection between driving
the children to the surf life saving club and his employment.
The employer's duty of care to students and its potential
vicarious liability for any criminal conduct of the teacher
towards students extended the scope to any conduct in
respect of a student which arose out of his relationship with
the school and the students (whether or not the conduct
was in school or work hours).
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KING V CATHOLIC EDUCATION OFFICE DIOCESE
OF PARRAMATTA [2014] FWCFB 2194
The dismissal was harsh, unjust or unreasonable:
Employee’s length of service (37 years) not adequately
considered. There were procedural flaws, including:
– the possible consequence of dismissal was not referred
to by the employer until the end of a meeting about
the conduct,
– the employee was not given an opportunity to provide
his reasons to the decision-maker, and
– the employer did not consider an alternative other
than dismissal at any time in the process (e.g. to an
alternative position within the diocese, e.g. at head
office).
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Now compare the outcome in the
following case, where the teacher’s
behaviour was similar….
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CAMPBELL V DEPARTMENT OF EDUCATION AND
COMMUNITIES [2012] NSWIRCOMM 1022
The teacher was employed by the Department of Education
to teach ESL at Year 11 level. On his own volition, the
teacher:
- took students on trips to the beach, took them bush
walking and went to dinner with them.
- engaged in after hours email and text communications
with the students outside school hours that went beyond
what was appropriate to pass between a school teacher and
a student.
The teacher was dismissed.
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CAMPBELL V DEPARTMENT OF EDUCATION AND
COMMUNITIES [2012] NSWIRCOMM 1022
The teachers’ application against unfair
dismissal failed. The NSW IRC found that the
applicant’s after hours contact with students
was inappropriate and in breach of school
Excursions Policy:
• There was no difference between his duties
and responsibilities as a teacher within
school hours or outside of hours.
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CAMPBELL V DEPARTMENT OF EDUCATION AND
COMMUNITIES [2012] NSWIRCOMM 1022
• The summary termination of the teacher’s
employment was neither harsh, unreasonable or
unjust and the reasons for the termination were
justified.
• Procedural fairness was accorded to the teacher,
• He had been advised of the reasons for the
termination and he had been given the
opportunity to make out a defence.
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THANKYOU
Any questions?
CONTACT DETAILS
Grevis Beard
Director
gbeard@worklogic.com.au
9981 6555 / 0433 590 360
Contact us to discuss any queries
from the presentation today.