How to choose a workplace investigator?

What happens during a workplace investigation?

Accusations of unlawful conduct in the workplace need to be taken seriously, but before drawing conclusions about what you think happened, it’s important that the process that you have used to draw those conclusions are procedurally fair.  Why?  Because if you don’t you could find yourself subject to an ‘unfair dismissal claim’.  But broader than that, unfair management decisions has a deleterious impact on your team, its culture, productivity, attracting and retaining staff, health and well-being of individuals and the broader team and increased conflict costs (time, increased insurance costs and responding to claims). 

A robust and procedurally fair workplace investigation ensures that managers and decision makers can determine with certainty what further actions are warranted, based on the outcomes of that investigation and demonstrates to your employees that you take their concerns seriously and deal with them fairly.

Before commencing a workplace investigation, it’s important to understand what constitutes a fair process and how to assess any information collected using the civil  standard of proof the ‘balance of probabilities’ so that you can make robust and fair decisions.

When to investigate a complaint.

  1. Allegations / complaints

Every workplace investigation starts with an allegation or complaint. This could relate to anything from bullying, discrimination or sexual harassment, to fraud, theft or inappropriate behaviour. Sometimes complaints are about other matters such as; management style, someone’s tone or attitude, performance, communication, allocation of work or resources.  When an allegation is made, it’s important that you obtain as much specific detail about it as possible, without forming any conclusions, such as:

  1. What actually happened (who did what)?
  2. When did it happen (date / time)?
  3. Who else was there?

There may be multiple incidents that you will need to investigate.  These form the basis of the allegations.  The more accurate information you can obtain the better decisions you can make about what intervention is the most appropriate.

Who should investigate?

  1. Assess what type of investigation is warranted

You will need to determine whether the allegations are serious enough to warrant an investigation and what sort of investigation you need.  At this stage it is important to refer to your organisation’s policies and processes to assist you to make a decision about whether or not the matter can be dealt with informally, internally or requires an external investigation. 

We recommend a workplace investigation where the allegations (if substantiated) would attract disciplinary action or termination.  When considering whether to appoint an external investigator you need to consider the following:

  • Whether the employee has requested an external investigation,  Employment Tribunals have been critical of employers who have conducted sloppy or self-serving internal investigations (Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Pasadena).  The Fair Work Commission has recommended in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation.  Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 (19 August 2016)
  • Whether you have the skills / knowledge or experience to conduct a robust workplace investigation internally.  
  • The relationships between co-workers, managers, HR and decision makers that may be perceived as being biased (even a perceived bias can compromise an investigation).  For example, it is best practice that the investigator is not the same person as the decision maker.  The decision maker will determine what further action, if any, is warranted based on the outcome of that investigation.  These are two different functions.
  • The respondent (person complained about).  If the respondent is senior (a Manager, an Executive) or is likely to attract attention in the public, or is a particularly sensitive matter, it may be unfair to ask that someone investigate the matter internally.
  • Your budget.  The larger the organisation the higher the expectation will be that the business has the resources to conduct more robust investigations.
  • Whether the internal investigator’s workload will allow them to have the time to conduct a robust and compliant workplace investigation.  
  • Seriousness of complaints.  For example; if the allegations are substantiated, what would be the worst outcome?  If it is training or counselling, then you might want to consider a less formal approach to deal with the complaints.  For criminal and unlawful matters you may be compelled to report the behaviour to the police or a regulatory agency.  This does not negate your responsibility to conduct your own workplace investigation.  However, the workplace investigator can work with the agency to ensure that they do not interfere with those agency investigations.  
  • How to manage the communications with and manage the complainant (person complaining), witnesses, respondents (sometimes employers also use the words ‘subject officers’ and / or ‘persons of interest’).  When and how to notify participants and what information they are entitled to.  Whether or not to stand people down whilst the matter is being investigated and what to consider when making this decision.

All the above factors will determine whether you choose to engage an external workplace investigation provider or whether you conduct the investigation internally.

How to choose an external workplace investigator?

Currently the licensing regime for workplace investigations is subsumed into ‘private investigations’ which is a State regulated function.  The certification is inadequate and unrepresentative of the core tasks required to be carried out by a workplace investigator (for example; interviewing, the standard of proof, applying principles of procedural fairness, weighing evidence) and significant areas of expertise are missing from the standard Cert IV training and licence requirements.  Certain disciplines have expertise in particular areas, for example; workplace lawyers have an understanding of workplace laws, police officers have expertise in interviewing, HR have intimate knowledge of their workplace policies.  So it can be challenging to find an investigator with specific skills and knowledge to conduct robust investigations with broad skills, without over-capitalising and within your budget.   

Accordingly, having a ‘licensed investigator’ does not mean that you will necessarily be engaging a workplace investigator with the requisite skills and expertise in conducting workplace investigations.  

Overall there is a fragmented and inadequate licensing regime for workplace investigators and there have been calls for a regulatory overhaul (Unsystematic and Unsettled: A Map of the Legal Dimensions of Workplace Investigations in Australia, Adriana Orifici, UNSW Law Journal, Volume 42 No 3, September 2019).

Nevertheless here are some guidelines to assist you to manage your workplace investigations.

  1. When choosing an external, independent workplace investigator it is important for you to consider:
  • Drafting your own Terms of Reference (TOR) or Scope of Works.  The TOR captures details such as what you want the investigator to investigate, the key contact people (usually HR or a senior manager and someone to assist with the administration and logistics of scheduling interviews), the policies you want the investigator to use, who you want the investigator to interview, what sort of findings you want the investigator to make, the investigation methodology / process or templates you want them to use, confidentiality protocols, what you want in the report and any other relevant matters.  If you are engaging an investigator for the first time, ask if they can forward you some de-identified TOR’s that you can use to assist you to determine the Scope of Works.  This is really important to ensure that investigators stay on track and that the investigation has focus and structure. And, that both you and the investigator have your expectations aligned. 
  • Communication protocols.  Communication is essential for the smooth delivery of a workplace investigation.  Clarifying the contact point to assist notify employees, provide information and scheduling interviews.  In addition, who the final report goes to.  Who to discuss more material matters with, such as, if the investigator obtains information outside of the scope of the investigation
  • Timeframes.  Ensure that investigator has the capacity to undertake the investigation within a reasonable timeframe.  
  • Methodology.  What methodology do you want the investigator to use?  If you don’t know, ask the investigator for a short summary of the methodology and ask questions if you don’t understand it.
  • Video / audio recording.  As a standard practice all interviews should be audio recorded and independently transcribed.  At Emverio Workplace Investigations all our interviews are conducted online and video / audio recorded.  
  • Editing / drafts.  It is also important to commit to how many drafts you agree to.  Who does the first draft go to for review.  What can / can’t be edited, and how to deal with material changes.  
  • Complaints Process.  Often if you have an independent contractor undertaking an investigation, you have no way to have their work reviewed independently and raise complaints / concerns with.  At Emverio Workplace Investigations we have a National Practice Manager who is always available to address any concerns.

More about Emverio Workplace Investigations

At Emverio Workplace Investigations, we specialise in investigating inappropriate, unlawful or employee misconduct, including workplace complaints about; bullying, discrimination, sexual harassment, inappropriate behaviour and other misconduct.

Our processes ensure that your investigations will be conducted quickly and in a manner that is procedurally fair, enabling you to make informed decisions based on findings which will withstand robust third-party review. 

Emverio Workplace Investigations use a national, multi-disciplinary team who work together to provide robust investigation reports, that you can rely on and have the confidence to make decisions, quickly.

Contact the team at Emverio Workplace Investigations to find out more or to discuss your requirements.

Is Gaslighting Bullying in the Workplace?

The word gaslighting has been revived lately in social media.  Its rise could arguably be attributed to the rise of Donald Trump because gaslighting describes a type of behavior that he has become synonymous with.  Gaslighting is designed to manipulate a person’s perception.  Wikipedia[1] defines gaslighting as a form of manipulation that seeks to sow seeds of doubt in a targeted individual or in members of a targeted group, hoping to make them question their own memory, perception, and sanity. Using persistent denial, misdirection, contradiction, and lying, it attempts to destabilize the target and delegitimize the target’s belief.  So would gaslighting constitute bullying in the workplace?

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

  • a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
  • the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner. http://fwc.gov.au

Some real-life examples of someone describing their manager who they allege was gaslighting her in the workplace, reported by www.news.com.au include:

It’s not really your fault everything is such a mess. I’m sure you tried your best — you just don’t have it in you to do the job properly — not to the standard that is expected.”

I’ve spoken to everyone in the team and every last one of them indicated the problem is you.

I’m planning a restructure and I’ll be honest, I just can’t see a role for you in the new structure.”

“I was wondering if you were okay!” she exclaimed. “You were supposed to call me at 1.30pm and I’ve been sitting here waiting for 30 minutes!”  However, no meeting had been scheduled.

You can hear that the words that the Manager uses undermine the employee or you could hear another interpretation.  Crucially, gaslighting allows for the person being gaslighted to assume that they are imagining things, and that there is no harmful intent on the part of the gaslighter.  Gaslighting exists in the world of perception so it can be really difficult for people to prove that it is even occurring. When we are conducting workplace investigations we often have to unpack these types of conversations.  For example the Manager would argue, ‘I did say something like that but I was definitely complimentary, I said that she tried her best, and the fact is that her performance is not up to standard, so there is nothing malicious in that’.

Employees refer to having agreements with other team members in nearly every workplace mediation and workplace investigation that we do.  People will say ‘it’s not just me, … agrees with me as well’.  Most people will speak to their co-workers about issues they are having.  And, most employees choose other employees who agree with them to speak to.  I can promise you this though, there are many times that we will conduct a workplace interview with those very people, and they will say words to the effect of ‘I just agree because I don’t want to get involved’ and then give their true opinion.

Because the complaint is based on perception it means that the communication can be interpreted in multiple ways by a third party.  A third party being the person complained to such as Human Resources staff, a Supervisor or Manager.

In addition, as a workplace investigator, this type of behaviour, gaslighting, is commonly described as inextricably linked to ‘personality’.  For example, people use words like ‘that is just what she is like’.  Meaning, there is no awareness or malicious intent, that is just how the person conducts themselves.  That’s how they communicate.  That is, she is not intentionally engaging in a malicious campaign or strategy of gaslighting, that’s just her style.

The definition of bullying as outlined above doesn’t infer any intentions.  So, you might not know that you are bullying or gaslighting.  However, if a reasonable person considers that your behaviour is unreasonable and that it creates a risk to your health and safety, then the behaviour could constitute bullying.

Conversely on the scale of bullying, and there is a scale, is there any responsibility on the person complaining to have some resilience and skills to deal with low-level gaslighting?  We at Emverio Workplace Solutions are seeing more and more complaints where the person complaining has not even brought the behaviour that they are complaining about to the attention of the person to fix it.   When is it appropriate to push back on complainants and to have some skills at dealing with challenging behaviours?  That topic I’ll leave for another blog (watch this space).

What would be the consequences of gaslighting someone in the workplace?  Well, it could constitute bullying, so if it could be proved (using the civil standard of proof being the balance of probabilities),and depending on the seriousness of the behaviour,  it could attract disciplinary action (including termination) as it has the components required by the definition of bullying.

[1] https://en.wikipedia.org/wiki/Gaslighting

Beliefs can constrain workplace relationships

Can I put a straw through a potato? You may not believe it, but yet it is possible. Always watch your own beliefs, judgments and opinions and how they influence your relationship with others despite not necessarily being true. (p.s I am very excited in the video because my family was heckling me and saying it wasn’t possible; and after a few failed attempts I did it!).  In our workplace mediations we work with people to break down initial perceptions and broaden participants views so that they can move beyond their beliefs to create harmonious workplace relationships.  Anna Faoagali, Principal, Emverio Workplace Solutions

Dealing with Perception and Allegations of Bullying

How do you deal with people who appear to be outwardly working together professionally and well and yet make complaints about how they are being treated?  Allegations such as ‘looking at me in an aggressive manner, using a derogatory tone, walking past me with attitude’ to name a few. Other non-verbal communications such as, rolling of eyes, sighing, staring intensely, having a furrowed brow.

There is nothing said, the complaints all manifest in the metaphysical.  What does an eye roll mean?  What does a sigh mean?  Can these human interactions constitute bullying?  Can these interactions be re-worked and re-interpreted in the future?  At the time, people laughed about it and weren’t offended, then it was re-worked, and was subsequently interpreted in the future as something contaminated, malicious and worthy of causing harm.

How do we complete our deadlines with quality outcomes using positive overtones despite the work not being completed to the level required and being under pressure?  How do we not express our upset, disappointments, frustrations when we are working within budgetary constraints and experience other pressures at work?

These are some of the challenges that we are dealing with today and the methods to mange those complaints  (such as investigations) tend to pull teams apart, generate further hostilities, suspicion and pressure on relationships causing more potential for harm and disruption.  That is what we see.

Unless the behaviour would attract serious disciplinary action such as termination, always exhaust less formal and more restorative options.  Investigations are necessary and required and we do undertake these interventions where necessary.  But it is also very important to put in place strategies post investigation to pull the team back together.  Our team can give your team over an 80% chance of pulling back together.  Make sure you contact us to find out more about our services here at Emverio Workplace Solutions.  Anna Faoagali, Principal, Emverio Workplace Solutions.