The Investigator’s Role
The investigator’s role is simple – to get to the truth of the matter.
It is not to prosecute the complaint and it is not to defend the respondent. Nor is it to be a mere mouthpiece of the employer or produce a result that might best suit the employer’s objectives.
The investigator, whether internal or external, must be independent of the parties in dispute and come to the investigation with and maintain an impartial mind.
The investigation must be conducted in accordance with any relevant organisational policies and procedures and, if relevant, statutory requirements (eg. if the employer is a government body).
How to Collect Evidence
As in litigation, evidence in relation to workplace bullying allegations may take many forms including documents, oral and written testimony and audio or video recordings. However, a workplace investigation is not bound by the judicial rules of evidence and may therefore inform itself in any manner it determines, subject to the investigation’s terms of reference and the rule of relevance. As such, an investigation may consider and give appropriate weight to, for example, hearsay and opinion evidence.
In many (maybe most) cases, allegations of workplace bullying involve unwitnessed events and/or subtle behaviours. Many allegations can also be quite dated, meaning that the memories of the parties and witnesses may have deteriorated with time.
In these cases, the skilled conduct of interviews is crucial because determination of the allegations will ordinarily turn on the respective credibility of the parties and/or witnesses. It is entirely inappropriate and unhelpful to a decision-maker for an investigator to conclude that an allegation is unsubantiated merely because the evidence of an unwitnessed event is of a so-called “he said-she said” nature.
To that end, the evidence of all interviewees (including the complainant) needs to be carefully tested. However, testing the veracity of evidence in a workplace investigation is not the same as under cross-examination in a court as the investigation is not an adversarial process. Nonetheless, general answers to questions should be probed for more specific information – remember to ask “what?”, “where?”, “when?”, “who?”, “how?” and “why?” All answers to questions should be examined for inconsistency, either internal or with other evidence. Any apparent inconsistencies should be put to the interviewee for clarification and explanation.
It is my strong view that all interviews should be audio recorded. First, it saves time because the investigator does not have to write down everything that is said. It is also very difficult to concentrate on the evidence being given and your line of questioning while taking detailed notes. Second, the recorder records things exactly as they are said. This protects both the investigator and interviewee against any later dispute as to what was or was not said during the interview.
A reliable record of each interviewee’s evidence should be produced – either a statement or transcript of the interview.
If a statement is used, it should be signed by the interviewee to avoid later disputes as to whether it was an accurate summary of the person’s evidence.
My strong preference is to use transcripts. First, it avoids endless debates with witnesses as to what evidence they actually gave at interview or dealing with refusals to sign a statement. Second, it provides a record of precisely what was said at interview. The benefit of having such a record is that the credibility and reliability of a person’s evidence is often to be found in precisely (ie. a transcript) what they say rather than the thrust (ie. a statement) of what they say about a given issue. As stated above, an assessment of relative credibility of the parties to unwitnessed events is often what the determination of workplace bullying allegations turn on.
If there is a chance that the integrity of an investigation could be prejudiced by evidence being destroyed or altered or witnesses being interfered with, consideration should be given to delaying notification of the allegations to the respondent until after all such evidence has been secured and/or to the temporary removal of the respondent from the workplace (eg. by suspension on pay or temporary secondment to alternative duties, etc).
Dealing with the Complainant
It often takes significant courage to make a formal complaint of workplace bullying. The complainant, as with the respondent and witnesses, should be dealt with sensitively.
Having said that, an investigator should not shy away from their duty to get to the truth of the matter and to test the evidence of each person participating in the investigation.
If they have not already done so, the complainant should be required to properly particularise any generalised allegations of workplace bullying with concrete examples of behaviour that they allege amounts to bullying. The complainant should be asked to identify any witnesses to alleged events or behaviours. Finally, an opportunity to provide any documents which are relevant to the matters under investigation should be provided.
The investigator must always be careful of the language they use during interviews, both with the parties themselves and witnesses. As the investigator is to be unbiased and open-minded, it is inappropriate to use phrases such as “I’m not doubting what you say”, “you are quite correct”, “yes, I can understand how that would make you feel” or “yes, he sounds like a real #$%@”. While it is important to build a certain level of rapport with an interviewee, an investigation interview is not counselling or therapy and the investigator is not the interviewee’s friend. Therefore, such phrases, even if innocent in their intention, should not be used so as to avoid later complaints of apprehended bias or prejudgment of the issues being investigated.
Dealing with Witnesses
Witnesses should be dealt with as sensitively as the complainant and respondent.
Witnesses should never be promised absolute confidentiality or anonymity in relation to what they say during their interview. Such an undertaking can frequently not be kept due to natural justice requirements and, in the case of government bodies, the potential for access to investigation materials through Right to Information and/or Freedom of Information legislation.
Sometimes witnesses will not know anything about the subject matter of the investigation before their interview and may therefore need some additional time to recollect events.
Also, it should be kept in mind that it is often the case that specific alleged events and behaviours that are significant and important to the parties directly involved in workplace bullying allegations may not be significant or important to the witness. As such, just because a witness does not recall a specific event or behaviour occurring when they were in fact present at the relevant time does not necessarily mean that the alleged event did not happen.
Dealing with the Respondent
Answering an allegation of workplace bullying is, for most respondents, a very stressful and difficult process. As with the complainant and witnesses, the respondent should be dealt with sensitively.
Again, however, an investigator should not shy away from their duty to get to the truth of the matter and to test the evidence of each person participating in the investigation.
Natural justice (or procedural fairness) requires that the respondent have the allegations and, at least, the substance of evidence which is substantial, probative and adverse to his or her interests put them and be provided with a reasonable opportunity to respond to that information. This should be done systematically and logically so as to avoid confusing the respondent, particularly in cases where there are a large number of allegations. Generally, it is most logical to deal with matters chronologically wherever possible.
What if the respondent refuses to be interviewed, or attends an interview but refuses to answer some or all questions? The appropriate approach will always depend on the particular circumstances and there are some potential differences between public sector and private sector settings.
However, two broad approaches are often available. First, it may be appropriate to direct the employee to attend an interview and to answer the investigator’s questions or face potential disciplinary consequences for failing to follow a lawful and reasonable direction. Second, the respondent could be warned that if they fail to take the opportunity to be interviewed, then any evidence that is adverse to their interests will remain unchallenged and may be accepted by the decision-maker.
Covert recordings.
It is becoming more and more frequent with the proliferation of smart phones with digital recording capabilities that employees are producing covert recordings of meetings and conversation to workplace investigators.
But can they be utilised in a workplace bullying investigation given that the recordings were made without the knowledge and/or consent of the other party(s)?
In Queensland, recordings of this nature are subject to the Invasion of Privacy Act 1971 (Qld) (“IP Act”).
Section 43 of the IP Act provides as follows:
“ 43 Prohibition on use of listening devices
(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.
(2) Subsection (1) does not apply–
(a) where the person using the listening device is a party to the private conversation;
…”.
It therefore appears that such recordings will ordinarily be lawful.
However, the IP Act also restricts the use to which such recordings can be made, except for certain prescribes purposes. In particular, section 45 of the IP Act provides as follows:
“ 45 Prohibition on communication or publication of private conversations by parties thereto
(1) A person who, having been a party to a private conversation and having used a listening device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.
(2) Subsection (1) does not apply where the communication or publication—
…
(c) is not more than is reasonably necessary –
(i) in the public interest; or
(ii) in the performance of a duty of the person making the communication or publication; or
(iii) for the protection of the lawful interests of that person; or
(d) is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made
…”.
It appears that a number of these sub-sections will be sufficient to justify the provision of the recordings to an investigator of alleged workplace bullying.
There is, however, a further issue as to the probative value of covert recordings.
There is no doubt that recordings can be useful in resolving disputes about the tone and content of verbal interactions. They are certainly an objective record of what was said and how it was said.
However, some caution ought to be exercised when assessing the probative value of a covert recording because they can also be used as a “set up”. This issue was discussed by Senior Deputy President Richards in the case of Kharb v Eastfield Pty Ltd T/A BP Duaringa [2013] FWC 6403 in which his Honour observed [at 23]:
“So far as one party is placed in a position of knowledge (of the recording) and the other party is unaware of the situation, issues may arise as to how the knowing party constructs the conversation and manufactures his/her responses. Some care, therefore, is required in the approach to materials such as the transcript now before me”.
As such, the content, tone and circumstances of the recording needs to be carefully considered when determining how much weight out to be placed upon such a recording.
Preparing the investigation report
An investigation report should, at a minimum contain:
- an executive summary;
- an explanation of the background to the investigation and the terms of the reference;
- an explanation of the methodology used and how the investigation was managed, including an explanation of any extraordinary issues that arose during the investigation and how they were resolved (eg. new allegations arising and the terms of reference being amended);
- a summary of the evidence collected including extracts from the relevant transcripts and documents, preferably cross-referenced to the attached evidence;
- a thorough analysis of the available evidence;
- findings in relation to each allegation being investigated; and
- (if required) recommendations.
The investigator’s analysis of the evidence should be rational, logical and sensible. Where there is conflicting evidence from parties and/or witnesses, a careful analysis of their relative credibility needs to be undertaken so that the decision-maker can resolve those conflicts. Of course, underpinning such an analysis is the level of sophistication with which evidence is tested during interviews – sophisticated questioning provides the detailed information upon which to base accurate judgements as to credibility. It is unacceptable for an investigator to simply opine that “well it’s he said – she said, so the allegation can’t be substantiated”. As I stated in Part 1 of this series, the investigator’s primary role is to get to the truth of the matter and that includes determining where that truth lies when there is conflicting evidence.
The analysis must also have regard to any relevant definitions, including the statutory definition of bullying.
It is important to distinguish between the roles of the investigator and the ultimate decision-maker. In my view, findings ought to be expressed in language that makes it clear that the finding is a matter of the investigator’s opinion, which may be accepted or rejected by the decision-maker. For example, a suitable expression of such a finding might be:
“On the basis of the above evidence and analysis, it is my view that it is open to the decision-maker to be reasonably satisfied that, on the balance of probabilities, the allegation that Mr Smith engaged in workplace bullying toward Mr Jones between 1 January 2014 and 30 June 2014 is substantiated”.
It is my strong view that investigators should not provide the employer, nor any other party, with a draft of their investigation report. It begs a complaint of bias or lack of independence. It also begs actual interference in the investigation.
If recommendations are requested in the terms of reference, any recommendations in relation to the taking of disciplinary action should be broad and should certainly not opine upon what specific action ought to be taken – that is a matter for the decision-maker. For example, a suitable expression of such a recommendation might be:
“As such, it is recommended that consideration be given to initiating a disciplinary process in relation to Mr Smith”.
All evidence considered in the investigation report should be attached to the report.