WORKPLACE INVESTIGATIONS

Transcription

1 1. Purpose Document No: HR-PRO-016 Approval Date: 28/8/16 WORKPLACE INVESTIGATIONS Approved By: G. Mowbray Review Date: 28/8/18 Responsible Officer: Expiry Date: N/A Employment Relations Advisor Issue No: 28/8/16 Authorising Officer: Business Manager, General Secretariat This procedure outlines the general process to be used in carrying out workplace investigations. 2. Scope This procedure applies to all ACBC agencies. This procedure does not cover investigation of safety incidents. For safety incidents refer to WHS-PRO-018: Reporting and Investigating Incidents and Hazards. 3. Related Documents ACBC Conditions of Employment ACBC Privacy Policy 4. Definitions Workplace Investigation A workplace investigation is a systematic process for establishing the facts and circumstances surrounding a complaint or allegation made regarding a workplace or worker and using the information obtained to take timely and appropriate action. Investigator An investigator is an appropriately qualified person appointed by the Agency Head to investigate a workplace issue and make recommendations arising from the investigation. The investigator may be appointed from within an agency or appointed externally. 5. Responsibilities Any worker can make a complaint about an issue at work. Supervisors Supervisors are required to take appropriate action when a complaint is received. This may include: Taking action to resolve the issue (if there is a significant safety issue, immediate action must be taken) discussing the complaint with their supervisor/agency Head Obtaining advice from the Office for Employment Relations (OER) Obtaining advice from the HR function in their Agency Agency heads Agency Heads are responsible for: Determining whether a formal investigation should be carried out (in consultation with the supervisor/oer or the HR function in their Agency). Appointing an investigator Receiving the investigation report and recommendations from the investigator Page 1 of 10

2 Approving any actions to be taken in response to recommendations from the investigation Investigator The investigator is responsible for: Planning and carrying out the investigation Collecting the relevant information Evaluating the evidence Making recommendations to the Agency Heads Writing the investigation report Office for Employment Relations The Office for Employment Relations is responsible for: Providing advice of the appointment of internal and external investigators Providing advice on the process for conducting workplace investigations Providing possible solutions to resolve issues 6. Legal Issues Consider the following legal issues prior to commencing a workplace investigation. Defamation Risk Any statement adverse to somebody which is published to another person is technically defamatory. Hence the making of a complaint itself is technically defamation. Workers have been known occasionally to commence proceedings. Safety Issues When a safety issue is involved Use separate investigations and conduct separate investigations for: o WHS purposes o Disciplinary purposes Do not use evidence gained from one investigation in the other Do not refer to one investigation in the other (especially in final reports) Consider the likelihood of a possible prosecution by your local safety authority o Ensure all communications are vetted by lawyers o Could findings of a disciplinary investigation prejudice your organisation s defense? o Is the person under investigation a critical witness for your organisation s defense? Consider whether disciplinary proceedings constitute victimisation under WHS laws Remember documents on site relating to an alleged safety breach may be accessed by unions and local safety authorities so carefully consider o Use of o Creation and storage of documents o Legal professional privilege o The phrasing of letters of allegation Privacy The Privacy Act 1988 (Cth) protects against the misuse of personal information. Employee records are exempt, but there are some exemptions (e.g. Health Records Act 2001 (Vic) Seek advice from the Office for Employment Relations if worker records need to be used. Page 2 of 10

3 Video surveillance Some states and Territories have legislation governing video surveillance (e.g. Workplace Surveillance Act 2005 (NSW)) In the absence of legislation, there is nothing to prevent an employer from using video surveillance Telephone monitoring Regulated by State, Territory and Federal legislation Telecommunications (Interception and Access) Act 1979 (Cth) Listening devices legislation Taping private discussions Regulated by State, Territory and Federal legislation Invasion of Privacy Act 1971 (Qld) Freedom of information Workers may seek access to records of an investigation under Freedom of Information legislation FOI applies only to information held by local, State and Federal governments Taping of private conversations is not permitted without consent. FOI exceptions: o Legal privilege o Notes made by a private investigator are not available under FOI Usage In NSW, monitoring must be in accordance with the Workplace Surveillance Act is not private or confidential is not owned by either the sender or the intended recipient s can be misdirected, redirected or forwarded on The delete button does not necessarily dispose of an . It can be recovered. s are documents for the purpose of various Evidence Acts and are therefore discoverable is the property of the organisation. s can be retrieved even after they have been deleted. 7. When to Conduct a Workplace Investigation Each complaint or allegation must be assessed to determine whether a formal investigation is warranted. Sometimes a complaint can be resolved through informal processes such as mediation. Often complaints arise from problems with communication or misunderstandings which can be resolved by a discussion between the parties. In assessing complaints /allegations the following factors must be taken into account: How much time has elapsed between the complaint and the incident? Does the complaint point to something amiss in systems or processes? Is this one of a series of complaints which may indicate a widespread problem? Could there be an alternative means of redress? Note: If a complaint is vexatious disciplinary proceedings can follow. However, a workplace investigation must be conducted if: There is an allegation of serious misconduct (e.g. theft, assault etc. Refer to HR-PRO-013) There is a breach of policy/procedure There is a safety incident. For investigation of safety incidents refer to WHS-PRO-018. Page 3 of 10

4 8. Selecting an investigator When selecting an investigator the following factors must be considered: The investigator must be appropriately trained and experienced The need for objectivity and perceived independence The ability of the investigator to remain neutral The skills required of a good investigator good listening skills, objectivity and common sense are a good start. The capacity to devote the time required. The need for the outcome to be respected by participants. A consideration of the above should help the Agency Head decide whether an internal or an external investigator is required. The Office for Employment Relations should be consulted when appointing an investigator. 9. Complaints Anonymous Complaints often complaints are made anonymously. Do not ignore these complaints. Treat each complaint seriously. The following actions can be taken to process anonymous complaints: In some cases there is a legislative requirement to take action i.e. WHS complaints and bullying & harassment allegations must be addressed. Can allegations be independently verified? Is the complaint coherent, and is there a ring of truth about them? Are there any trusted or senior who may be able to give context or shed light? Err on the side of at least some action if possible. Anonymous complaints which are not actioned may resurface at a later date. Reluctant Complainants - usually these workers want action but do not want to be visible. In most cases employers need to proceed on allegations irrespective of the worker s stated position. In most cases confidentiality cannot be guaranteed. However, information should only be given to those who need to know. 10. What to look for in an workplace investigation The allegation must be proved on the balance of probabilities, as stated in Section 140 Evidence Act 1995 (Cth), and there must be a consideration of: Nature of cause of action or defence Nature of subject matters Gravity of matters alleged In addition the Briginshaw standard must apply (i.e. the more serious the allegation, the higher the degree of probability required to prove the case). To justify an outcome: There must be a full and proper investigation of the facts Full details of allegations must be given to worker The worker must have opportunity to respond Proper consideration and investigation of the worker s response Page 4 of 10

5 The conclusions must be justified by outcome of investigation The action taken must be reasonably justified by conclusions 11. Why is the method of conducting an investigation important? The method of conducting an investigation is important as the outcomes may have a serious impact on several lives. The outcomes of an investigation may include disciplinary action, termination of employment, a referral to the Police or a referral to other tribunals e.g. anti-discrimination. 12. The Process 12.1 Analyse the issue 12.2 Develop an Investigation Action Plan 12.3 Collect information/ interview witnesses 12.4 Review the evidence and check the process 12.5 Evaluate the evidence and draw conclusions 12.6 Write the Investigation Report 12.1 Analyse the issue What is the allegation? Is there more than one? Is it unlawful conduct? Is legal advice required? Is the conduct in the course of employment? What/who is being investigated? Does the investigator have a conflict of interest? What policies are relevant? What legislation is relevant? Page 5 of 10

6 Who else needs to know? (internal and external e.g. Insurer) Should the police be contacted? Does a letter of allegation(s) need to be prepared? Should anyone be stood down? At this stage the investigator needs to know exactly what they are required to deliver. It should also be made clear to the investigator whether findings or recommendations or both are required. There is a formal requirement for the investigator to act fairly, and without bias, and to provide natural justice. Other issues to consider: Other types of evidence may also need to be preserved e.g. video footage, building access records, computer records etc. Consideration must also be given to industrial agreements/awards/statutes do they prescribe a particular response? Does anyone need to be advised internally or externally senior management, media liaison, officer, WHS authority, parish priest, bishop? Should the investigation be referred to the police? - theft assault (especially sexual assault), allegations involving child pornography, stalking, drink spiking, property damage etc). There are mandatory requirements to report child related allegations. Do you need to stand people down? In deciding this, consideration must be given to the nature of allegation, workplace harmony and the effect on the investigation You must comply with any industrial agreements or awards, and with your own policies when deciding this. With or without pay? 12.2 Develop an Investigation Action Plan Firstly, determine whether the investigation should be internal or external. If internal, determine whether anyone at the workplace has the necessary skills and qualifications to conduct the investigation. The investigation plan should include the following: What do I need to know? Who do I need to interview? Who will need EAP? What documents do I need? What research do I need to do? In what order should I interview the parties involved? Where and when should I hold interviews? What questions should I ask in my interviews? Do any workers need a briefing about what is going on? What do I need to take to the interview? Do I need expert advice? The Workplace Investigation Action Plan form (HR018) can be used to plan the investigation Collect Information This is part of the process of collecting evidence. The types of evidence you can gather are: Oral (recollections of all parties and witnesses) Documentary evidence (records) Page 6 of 10

7 Expert evidence (technical advice) Site inspection Care must be taken in the way that evidence is collected, especially if there are likely to be legal proceedings. The rules of evidence must be followed so that the best evidence available (which will be admissible in any subsequent legal proceedings) is collected. The complainant should be interviewed first to gain an understanding of the nature of the complaint. The respondent is then asked to respond to the complaint. Other parties that may be involved may be required to be interviewed after the complainant and respondent have been interviewed. Prior to conducting an interview, a letter stating the allegation(s) must be sent to the respondent. The Workplace Investigations Letter of Allegations (HR019) can be used as a template. The process must be explained to the interviewee. The interviewee must be given the opportunity to have a support person present. Explain confidentiality (Note: Do not guarantee confidentiality) Explain the roles, including the role of the support person The Workplace Investigation Interview Preparation Sheet (HR020) can be used to prepare for an interview. During the interview: Take notes Use open questions to get background and interviewee s version Use closed questions to clarify and test (refer to Appendix A: How to Ask Questions) Show empathy not sympathy Observe body language and eye contact 12.4 Review the evidence Has the respondent been given an opportunity to respond to the allegation(s)? Has the complainant been given the opportunity to respond to the respondent s explanation? Are there any documents still to be collected? Have all witnesses been interviewed? Is there any additional information to be obtained? 12.5 Evaluate & Conclude Consider the following in relation to the investigation: What are the allegations? What evidence is there to: o Support each allegation? o Refute each allegation? How much corroborating evidence is there? How reliable is the evidence: o Who created it (bias)? o How recent is it? Could the evidence have been tampered with? How credible are the witnesses? o Inconsistencies o Possibility for collaboration Can conclusions be drawn? Page 7 of 10

8 The Workplace Investigations Drawing Conclusions Form (HR021) may be used to assist in this process Write the Report The following guidelines should be observed when writing the investigation report. Refer to Workplace Investigations Report Form (HR022) Introduction: o Allegations o Identify investigator and qualifications o Time frames of investigation o Process: o Relevant policies and/or law o Names of people interviewed o Other steps to collect information Evidence: o What is agreed? o What is in dispute? o Chronological sequence o Show sources of evidence o Discuss factual conflicts o Show corroboration o Comment on witness reliability Conclusions: o Must flow logically from evidence o May not be able to be reached o Recommendations: o Only include if asked to o Beware of legal professional privilege 13. Communicating Outcomes Complainants and respondents should be advised of the outcomes of the investigation and the decisions made in response to that outcome. Stakeholders should also receive communication regarding the outcomes. The communication should be tailored to the level of involvement of the witness or stakeholder. If no conclusions can be drawn, then no further action can be taken. Anticipate reactions and have a plan to assist workers to progress. Consider whether the parties involved can be returned to their previous position or work at the same location. Be sensitive to the complainant s position, particularly if there remains a likelihood that the conduct may have taken place (although it was not able to be substantiated) If the recommendation is to take disciplinary action, the standard process for disciplinary action must be taken (HR-PRO-012, HR-PRO-013). Check agreements and awards to see whether there are any specific requirements for disciplinary action. Page 8 of 10

9 14. Victimisation The Agency will need to take all reasonably practical action to ensure that all parties are protected against any form of victimisation. 15. Records Written complaints Diary notes Communications Workplace Investigation Action Plan form (HR018) Workplace Investigations Letter of Allegations (HR019) Workplace Investigation Interview Preparation Sheet (HR020) Workplace Investigations Drawing Conclusions Form (HR021) Workplace Investigations Report Form (HR022) These records are to be maintained in a secure location. Access to them is by permission of the Agency Head or HR function. Records are to be retained in accordance with the relevant state or commonwealth legislation. Page 9 of 10

10 Appendix A: How to Ask Questions Open questions: Encourage people to talk more expansively e.g. tell me about..., please describe..., what happened... Open questions are useful early in an interview to get the interviewee s version of events and when introducing a new topic in the interview. Closed questions: Limit the options which are available to the interviewee. e.g. Did you... your name is... usually a yes or no answer. Can be useful at the start of an interview to confirm personal details. Can be used at the end of an interview to test interviewee s version of events and your understanding of them. Follow on questions: Used to dig deeper into interviewee s responses. e.g. You said he was bullying you. What do you mean by bullying? Follow on questions are useful to probe an interviewee s words from a previous question. Loaded questions: Loaded questions have built in assumptions regarding the subject matter being investigated. E.g. Did that make you feel terrible? Loaded questions can be useful when testing and verifying an interviewee s version of events later on in the interview process. They should be avoided at the outset on an interview. Bridging questions: These can be used to introduce a new topic or subject matter to the interview. Bridging questions can be useful when an interviewee has nothing further to say on a topic and/or if the interview is not progressing. Double-barrelled questions: Avoid double-barrelled questions e.g. Who were you with and when? Hypothetical questions: These should NEVER be used. They are not useful, and can prejudice the investigation. Leading questions: These are usually closed questions which lead the interviewee to agree with the interviewer. e.g. You were at the party until 11.00pm, weren t you? Leading questions can be valuable to interviewers to test and verify an interviewee s version of events once they have established that version. They can also be used to put inconsistent versions of events to interviewees. They should not be used too early in the interview as they may imply bias and a lack of impartiality on the part of the interviewer. Page 10 of 10