Planning and managing effective workplace investigations (Perth Only)
Perth | 23 September 2020
Registration & welcome coffee: 8:30 am | Course duration: 9am - 4:30pm, including networking breaks
This workshop will equip with the skills to conduct workplace investigations that are fair, efficient, effective, and draft reports that will satisfy the requirements of internal stakeholders and when necessary, withstand the scrutiny of commissions, courts and tribunals.
There are myriad forms of misconduct that occur in workplaces, chief among them bullying, racial and sexual harassment, breaches of policies and codes of conduct, discrimination, assault, and corrupt behaviour. Each type of allegation calls for a practical, tailored response that adheres to the underlying principles of procedural fairness, and competently assesses complex sources of evidence, both documentary and personal.
This workshop will traverse many key topics and issues that arise in investigations of all types. It will be practical and interactive, spanning the process from assessing whether you need to investigate, to choosing the investigator, formulating terms of reference and allegations, communications with parties, the principles applicable to assessing evidence, and the ultimate content of reports. Along the way, many other common and complicating factors will be discussed, such as an employee illness, absence or obstruction, difficulties with representatives, and the existence of concurrent performance management or legal claims, such as workers compensation.
This interactive workshop will equip you with the following practical takeaways you can use in your next investigation:
- When and how to initiate a workplace investigation
- How to gather and competently evaluate evidence of all types
- The contents of an effective and legally defensible investigation report
- How to manage concurrent issues such as illness, poor performance and workers compensation in the context of an investigation
- How to minimise the risks of litigation arising from employee complaints, their investigation, and ultimate disciplinary outcomes
PLANNING AND PREPARING FOR THE INVESTIGATION
When to investigate
- Which types of allegations require investigation?
- Considering other appropriate means to resolve an issue
- The legislative requirements that should inform the the decisions to investigate
- The consequences of not investigating
- The risks of litigation to consider when initiating an investigation
- The relevance of enterprise agreements, contracts, and employer policies
- Choosing an investigator: who should be the investigator and who must not
- The benefit of legal professional privilege and the appropriate use of lawyers
- Considerations for setting timeframes: balancing evidence gathering, proper consideration and avoiding reputational damage to participants
- Dealing with concurrent performance issues or complaints made seemingly in response to performance management
THE INVESTIGATION PROCESS
Investigation participants in the workplace
- How to manage the continuing presence presence of investigation participants in the workplace
- Avoiding allegations of "adverse action" by participants
- When and how the investigator should communicate with participants
- When a suspension is appropriate and legally permitted
- Practical steps to protect the integrity of the investigation and prevent victimisation
Conducting an effective investigation process
- The importance of confidentiality
- How to frame allegations
- Evidence gathering; types, sources and methods
- The role of external, forensic experts in complex cases
- Considerations on the order of interviews
- How to frame and order questions (and how not to)
- The role of support people and legal or union representatives
- How to deal with reluctant participants
- When may a request for anonymity be granted?
- The impact of employee illness or absence
- Distraught or uncooperative witnesses
- The role of reasonable and lawful directives in investigations
- Managing expectations of internal stakeholders
- Is there a right not to answer questions?
Assessment of evidence
- The application and interpretation of contracts, enterprise agreements, legislation, policies and codes
- How to evaluate and give appropriate 'weight' to evidence by applying appropriate legal principles
- Contradictory evidence
- The use and importance of directions to maintain confidentiality
- The use of documentary evidence, including electronic material
- Recordings and transcriptions
- What is "credibility" and how is it reasonably assessed?
Content of report
- Topics that must be covered
- Topics that may be covered
- Findings distinguished from recommendations and observations
- The discussions of evidence
- Appropriate use of annexures
- The form of witness statements
After the report
- The distinction between the investigation and its consequences
- Appropriate decision-makers on disciplinary consequences
- Maintaining privilege and the circulation of the report
- Managing the risk of "adverse action" claims
- How, when and what to communicate to all participants
- Who is entitled to know the findings or the outcome?
- The role of the report and the investigator in subsequent legal proceedings
Throughout the course, practical examples will be discussed, drawn from case law, as well as interactive examples that will be up for discussion. Your questions, comments and insights will be welcomed throughout. A workbook, templates and presentation slides will be provided to delegates to take back to the workplace.
Facilitated by: Elizabeth Moran, Senior Associate, Mills Oakley
Elizabeth Moran is an experience employment lawyer. She has been practising for more that 15 years in Western Australia. Her particular expertise lies in advising clients on anti-discrimination and equal opportunity law, and General Protections matters. She conducts independent workplace investigations into allegations of all types of misconduct.
Elizabeth also advises in relation to all types of termination issues, including unfair dismissals, redundancy processes and post-employment restraints. She provides training in the area of anti-discrimination and anti-bullying. She also drafts employment policies across a wide range of areas and advises on the implementation of policies.
Elizabeth has advised clients across the full spectrum of industry sectors, including mining, oil and gas, building and construction, logistics, defence, sport, entertainment, hospitality and other service industries. She has provided employer representation in courts and commissions (Fair Work Commission; Federal Court of Australia; Federal Circuit Court of Australia; WA IndustrialRelations Commission; Equal Opportunity Commission, State Administrative Tribunal). She has also appeared as an advocate in the Fair Work Commission (conducting trials and appeals).