Post on 21-Jun-2015
description
transcript
The shortcomings of workplace investigations
Harriet Stacey CEO, WISE Workplace
‘A response to Josh Bornstein’s
call for reform’
• 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
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?
Lohse v Arthur (No 3) [2009] FCA 1118
Procedurally fair workplace investigation
Lohse v Arthur
• A flexible and practical obligation • adopt fair procedures • appropriate to and adopted to the circumstances
Three elements of procedural fairness
• A fair hearing
• Independent and unbiased decision makers
• A decision based on evidence
• 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
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
AMWU v Visy Packaging Pty Ltd [2013] FCA 525
Adverse action case
Court not satisfied that investigation independent and impartial
Procedural Fairness
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
• 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
Gossip
Documents
Statements
Prior history
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
• 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
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
What goes in the report?
Who gets the report?
How do we protect privacy of individuals?
Can we protect witnesses?
Confidentiality
“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?
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
Legislative requirement to keep the identity of the complainant confidential.
Can we do it?
Documents created to enable solicitors to provide legal advice to clients are subject
to legal professional privilege
Can privilege help?
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
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
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
How do you select excellence in external
investigators
GREAT!
TERRIBLE!
Guiding principles of good reports:
• Purpose
• Accuracy
• Sufficiency
• Clarity
Principles
What should you look for?
What will reduce the risks of a dud?
Selecting Investigators
Questions?