Tag Archives: Tips & Tricks


Duty to mitigate your loss – very important in workcover cases

We have written about it many times  (see for example “Mitigation of Damages“), but perhaps it’s time to re-highlight that an injured person who makes a claim for compensation is actually required to take all reasonable steps to mitigate his or her loss. So what does this actually mean?

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Workcover et al may Google YOU too!

Did you know that the success of your work injury case also depends on your credibility. That is: that you are honest, are being trusted and believed in, in what you say and…do. This is especially true when you have an injury that is not (very) visible to the naked eye; for example a heart condition, a psychological injury, and even a back injury. So what you say and do, and whether you are believed is extremely important as this can make you win or loose your case.

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case-managers-are-not-your-friend workcover-xchanging-case-manager

Xchanging case manager: at best terrible, at worst bunch of bullies

Yesterday we received the shameful story of “Severely Injured” who, rightly, describes his Xchanging case manager as a crazy ex-girlfriend who went from my ‘new best friend’ to nothing short of a stalker. She
would ring the injured worker up to 8 times a day, and berate him, scream abuse, make outrageous claims – “I am stopping your payments, its up to me, and you are getting nothing, which is what you deserve”…Sound familiar? You bet! And here is what you can do about it!

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workcover-case-manager-bullies complain-ime-worksafe-vic

Can I refuse to see a certain independent medical exam doctor?

The workcover insurance company (who is defending your workcover claim) has a right to have a doctor (an independent medical examiner) of its own choice examine the injured worker. The logic of this general rule cannot be questioned. However the manner in which so-called “independent medical examinations” (IMEs) are carried out is often fraught with controversy, and it’s important that you know that you can refuse to see a certain IME in certain circumstances!

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Downsides of social media for injured workers

Let’s face it, many injured workers  are actively participating  in various forms of social media for example through blogging, Twitter-ing, and Facebook-ing and are unaware that there are some serious downsides to this practice. Especially since our blog’s recent DoS attack, I have been thinking a lot about this topic and I believe it would be helpful to share some of my informed thoughts for injured workers using or considering a dive into the social media space.

Downsides of social media for injured workers

I know I/we have published many articles about the dangers of using social media [under keyword “surveillance”] whilst on workers compensation, but I believe that it is necessary to raise the downsides of using social media over and over again.

Following the severe DoS attack on aworkcovervictimsdiary’s site, I have been discussing the use and the dangers of “social media” with many informed people, including other injured workers who blog (and have had their site copied by workcover] and experienced lawyers. One such a discussion with a lawyer stood out:

There is virtually no doubt that WorkSafe [or agent] tried to  bring down aworkcovervictimsdiary’s site trying to download information from it… maybe in contemplation of using it against you [owner, authors, contributors ] in potential proceedings. A lawyer colleague of mine used to work for the TAC and says they [TAC and WorkCover and insurance agents frequently download Facebook pages, entire blogs, websites etc… in case the “evidence” is later deleted.

Blogging, Facebooking, Tweeting etc really is forever

Even if you try to delete a single published post or an entire blog, a Tumblr site or Facebook page,  it’s really very tough to delete all the references to the work/articles/comments etc that have been reprinted, reformatted or placed in an archived cache online.

In addition to that as the lawyer we spoke to stated: WorkCover and insurance agents frequently download Facebook pages, entire blogs, websites etc… in case the “evidence” is later deleted – so basically what we are saying is that YOU (the injured worker) have very little to no control about the content of your social media (even if you were to delete it, chances are that someone else has already shared or reprinted you “old” material and chances are that workcover or their agents have been crawling all over your sites and tweets and made entire copies of it!).

Dis you know that the map of a single tweet  (see below) for example also exposes us, injured workers,  to the reality of the internet: much more is contained in any post or tweet besides its content, for example information about the time, the computer type, and even the location.

When your publish a thought, article, comment on a social media platform, you are writing in pen (make that a an indelible marker!), not pencil! And, sadly, there is the real potential to take prose out of context (sarcastic or not) which could then have significant legal ramifications for those injured workers, especially those under “surveillance” and those in a (potential) common law damages claim .

In my couple of months writing (well, dictating and having just about all of my blog posts actually physically entered for me,  in my case), I often think about this and wonder if the benefits I (and our co-authors) have garnered by sharing some of my/our [workcover] insights could be rendered mute by a single legal reference to this blog, or – perhaps worse – if somehow the contents of this site could be used against an injured worker.

Remember that just a few months ago the administrator of aworkcovervictimsdiary was threatened with a law suit for “defamation” by Allianz NSW and their lawyers. Obviously this was not about “defamation”, rather an intimidating attempt to shut is (authors, contributors, domain owner) up.

Whilst I/ we [authors] are not eligible for a common law damages claim, or involved in any court proceedings and certainly have nothing to fear from the insurance company or my/our employer; I am just imagining that – like some of you – =what if I/we was/were eligible, or in the midst of a law suit? What if I/we/you was/were currently under PI surveillance with a threat of cutting of my/our/your benefits (medical care or weekly payments), …

what if my case manager was snooping around in my/our/your Facebook, Tweets etc to find out “more” about me/us/you… so what if?

Is it going to bite you?

Perhaps you are blogging or tweeting or Facebooking just to socialise (fact is most of us, seriously injured workers, including myself,  are socially isolated); or maybe you do it to show your “strength.” Perhaps you do it because you want to stand up for what you believe.

Whatever the reason, injured workers need to rapidly wake up as  blogger/Tweeter/Facebooker. You need to pause every time you are about to post or tweet.

Social media is not a legally risk-free hobby!

Being a “blogger” I have learned to appreciate the power of social media. I have also learned that people who decide to attack bloggers/tweeteres who tell the truth -or who tell lies- risk being even more exposed themselves (this phenomenon has been dubbed “The Streisand Effect.”)

That’s because most bloggers to their homework and are careful to obtain background documents or refer  evidence to support their commentary.

Most of all, good bloggers, tweeteres, Facebookers consider their words carefully and know when NOT to publish as well.

So if you’re going to do this social media thing seriously, you need to realise that it does have risks that you might not suspect or be  aware of.

It would be good for YOU (all injured workers participating in social media) to review information offered by the Electronic Frontier Foundation. They have many helpful legal resources for bloggers there, new or old.

The Take-Home Message

So after all of this, what do I really think about social media for injured workers now? In our increasingly connected injured world, social media will be an asset for some, but a liability for others.

Be very very careful of what you write, think about it first, back up with evidence if you can and do not get trapped in the Streisand Effect; for example do not IMPULSIVELY reply to some comments, tweets etc – do NOT lose your cool, do not get angry or upset and always word your blogs, tweets, comments VERY carefully [phrase it in such a way that if a PI our workcover agent were to read it, it can not be twisted or taken out of context].

A good example would be an injured worker writing on Facebook page that “they spent all day moving house” – this is a very poor choice of wording and it can be easily taken out of context (by workcover et al) finding that “if you can move house, you can’t be as injured/impaired as you claim to be”. So, in this example you ought to write for example “I spent all day moving house – well, my family, friends,… actually all came and packed all my belongings in boxes for me, how kind…” (If that is true obviously).

Another example: ” I am cleaning out the swimming pool” – whereas you actually need to write it as it is: ” my son, whatever, is taking the bugs out of my pool and I am helping where I can, whatever”. Another common one ” I had a drink last night…”, whereas you are really saying that you had so much pain, grief, wathever that you drank half a glass of red on top of your painkillers” – you see workcover et al does NOT know anything about you (personal life) and can so easily misconstrue a “case against you”, for example implying that hey, as you were drinking, you must surely have been partying like hell, and how can you claim to be depressed…





Post predicated and entered by T on behalf of WCV –> as I am physically UNABLE to type posts, insert pictures, and dictate my posts from a couch with my arm supported by a sling and pillows, and it can take several days for me to dictate an article, post as I am in a hell of a lot of pain




APS knows that compulsory medical and psychiatric referrals are unlawful

The great APS Dignity Blog – OZloop- alerted us viaFacebook to their most interesting article: The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!

APS knows that compulsory medical and psychiatric referrals are unlawful

The Australian Public Service (APS) Knows that Compulsory Psychiatric Referrals are Unlawful, Unethical and Abusive; So it is Now Time for a Class Action!

Earlier, APS Dignity wrote about the use and abuse of compulsory psychiatric referrals under the Public Service Regulations 1999 as a victimisation tool against whistleblowers (that is, any APS employee who makes a complaint about a potential breach of the APS Code of Conduct), and how the Australian Public Service Commission and Comcare were complicit in this victimisation (see Australian Public Servants Subjected to Soviet-Style Abuse).

The humiliation, provocation and cruelty that some APS hired-gun psychiatrists have subjected APS employees to defy belief – ranging from unjustified antagonism and aggression directed at employees to verballing employees to make ‘confessions’ that they are adulterous and suicidal. APS employees have been left tainted with dubious and career-damaging psychiatric diagnoses, based on questionable evidence or no evidence at all. Needless to say, these employees are left highly traumatised.

The use and abuse of compulsory psychiatric referrals has been around for decades in the Australian employment landscape, being first brought to prominence during the early 1990s by Whistleblowers Australia. Yet, unfortunately, the situation is still very much the same (if not worse), and Australian politicians, human rights groups and the mainstream media’s interest has been noticeably lacking.

APS Dignity has been directly and indirectly in touch with many victims of compulsory psychiatric referrals and has been researching the legalities of the referrals, with the ultimate goal of helping victims to launch a class action against the Commonwealth of Australia.

There are various laws and codes that APS agencies may be breaching in directing or supporting (whether explicitly or implicitly) compulsory psychiatric referrals, as listed below.

  1. Regulations 29 to 31 of the Health Insurance Regulations 1975 specifically state that a valid referral to a specialist, such as a psychiatrist, must come from a referring practitioner (usually the treating general practitioner). There are no exceptions made to operate outside the scope of the Health Insurance Regulations 1975 when it comes to referrals to specialists.
  2. Clause 6 of the Institute of Australasian Psychiatrists’ Code of Ethics states that ‘it is unethical for a psychiatrist chosen by an employer to examine an employee who has been forced to attend’. APS agencies are effectively forcing employees to attend examinations under the threats of discipline or financial penalty.
  3. Section 10(1)(d) of the Public Service Act 1999 states that the APS ‘has the highest ethical standards’. Given that the Institute of Australasian Psychiatrists’ Code of Ethics makes it apparent that compulsory psychiatric referrals are unethical, then such referrals are inconsistent with the APS Values, which may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
  4. Section 16 of the Public Service Act 1999 states that whistleblowers reporting potential breaches of the APS Code of Conduct must not be victimised or discriminated against. Where compulsory psychiatric referrals are used as a victimisation or discrimination tool (which will usually be the case), then this may be a breach of employment contract, and a breach of the specific torts of statutory duty and public misfeasance.
  5. Under defamation law, it is unlawful to communicate ‘material’, whether directly or by imputation, anything which has the effect or tendency of damaging the reputation of another by: exposing that person to ridicule; lowering that person’s reputation in the eyes of members of the community; causing people to shun or avoid that person; or injure that person’s professional reputation. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful defamation may have occurred.
  6. Section 340 of the Fair Work Act 2009 states that adverse action must not be taken against an employee who has exercised, or proposed to exercise, a workplace right. Thus, where a compulsory psychiatric referral is used as a victimisation or discrimination tool against a whistleblower, this may amount to an unlawful adverse action.
  7. Under section 15 of the Disability Discrimination Act 1992, it is unlawful to impute a mental disability on an employee. Given that a psychiatric referral carries the imputation that an APS employee is mentally unstable, then unlawful disability discrimination may have occurred.
  8. When a compulsory psychiatric referral is used as a victimisation or discrimination tool which results in the employee suffering psychologically and emotionally, then this may be a breach of the specific torts of duty of care to provide a safe system of work and intentional infliction of mental harm and emotional distress.
  9. Under section 5 of the Administrative Decisions (Judicial Review) Act 1977, it is unlawful to exercise a discretionary statutory power in bad faith or unreasonably, or in a way that constitutes an abuse of power. When a compulsory psychiatric referral is used as a victimisation or discrimination tool, then there may be a breach of these administrative principles.
  10. Under Information Privacy Principles 7 and 8 of the Privacy Act 1988, APS agencies have an obligation to ensure employees’ recorded personal information is accurate, complete and not misleading. Under Information Privacy Principle 11 of the Privacy Act 1988, APS agencies must seek consent before disclosing employees’ personal information to a third party. Where an APS agency’s briefing to a psychiatrist about an employee contains inaccurate, incomplete or misleading information, and an employee’s personal information is disclosed without their consent, this may be a breach of the Privacy Act 1988.
  11. Under Information Privacy Principles 1 to 3 of the Privacy Act 1988, APS agencies must not collect personal information unlawfully and unfairly, and must not intrude unreasonably on a person’s personal affairs. The Privacy Commissioner has issued guidelines stating that Information Privacy Principles 1 to 3 may also be breached where personal information is collected by: asking a person many times for details; interviewers insulting or intimidating people; or asking for information in ways that might unnecessarily embarrass a person. Where a psychiatrist that is contracted by an APS agency asks unnecessary intrusive questions of an employee and collects personal information of an employee in an unfair way, this may be a breach of the Privacy Act 1988 and the specific tort of invasion of privacy.
  12. Where an APS agency directs employees to stay away from work (at the employees’ own expense) until they attend a psychiatric examination, this may be a breach of the evolving common law right of an employee to perform work (see, for example, the case of Quinn v Overland [2010] FCA 799).

The position of the APS on this issue, as conveyed by a senior APS lawyer in a recent ‘off the record’ conversation noted below, paints a disturbing picture of the mentality of APS bureaucrats who perpetrate these abuses.

  1. Compulsory psychiatric referrals are likely to be unlawful, unethical and abusive, but this does not matter as they can be masked under the guise of ‘care’ and ‘concern’. This is all part of ‘playing the game’ and whistleblowers should learn to join in with ‘playing the game’.
  2. It does not matter how unreasonable compulsory psychiatric referrals are because the APS is ‘big’ and ‘unmoveable’, and even if the matters were taken to court, the APS can hire barristers to ‘butcher’ employee litigants in the witness box.
  3. Whistleblowers must bear the burden of ‘proving their sanity’ (which means criminals are granted stronger rights than APS whistleblowers, as the former group enjoys the presumption of innocence until proven guilty and, if they choose to claim insanity, it is not imposed on them).
  4. All APS employees who have had compulsory psychiatric referrals are ‘losers’ and deserve what they get.
Our message to the APS is that your days of engaging in Soviet-style abuse of your employees, who choose to serve the public, are severely numbered. The ball lies in the APS’s court now: either issue an official directive stopping compulsory psychiatric referrals or be prepared for the APS’s (and individual senior bureaucrats’) dirty laundry to be aired out in the public courtrooms.

An enlightening comment posted on the APS Dignity blog – and which sounds all too familiar even for us ordinary injured sods under workcover- states the following:

The Hired Gun psychiatrist – based on one person’s experience of group bullying (mobbing) in the APS

In Australia, psychiatrists enter into an APS workplace as hired guns, with their implied or verbal brief often being to further abuse an already bullied staff member or to medicalise an existing industrial dispute, so that one side of the dispute can be labelled with a medical condition.

This enables those APS bullies, who prefer a negative leadership style, and those others, who are unable to manage and/or resolve issues constructively, for whatever reason, to arrange and participate in the bullying of their work colleague – under the guise of “reasonable administrative action”, “duty of care”.

Their work colleague is usually hard-working, enthusiastic, knowledgeable, conscientious individual, who gets a sense of satisfaction in doing a good job and adding value.

APS staff who participate in group bullying (mobbing, scapegoating) are usually reliant on their being able to work against their colleague behind the scenes and to rally others to their cause – via email, for instance, usually having some kind of semi-legitimate sounding reason for involving others in these types of communications.

Secrecy is important to them.  They use emotion-laden, defamatory language when discussing their colleague, and spread rumour, unsubstantiated allegations and hearsay, in order to undermine their colleague and portray their colleague to others as having no redeeming qualities. They even downgrade and devalue their colleague’s achievements, skills and abilities.

Not only participating in it, but also exposure to it, helps institutionalise these ways of behaving as being the norm.  Bullying helps spread fear and anxiety throughout the agency. Mobbing (group bullying), is sometimes described as a cancer that spreads like a virus through the workplace.

 So their colleague becomes “the problem”, not the bullies.  They deny that they’re the problem i.e. they externalise the problem: It’s nothing to do with them.  Others believe them because they want to believe them.  It’s too hard to make a stand as they may be next on the bullies’ hit list and it’s much easier on their conscience to think that their colleague is deserving of this treatment.

Escalating bullying over a period will eventually cause their colleague to become ill.

 So next on the agenda is the bullies’ need to stop their injured colleague from obtaining worker’s compensation -Comcare.

This is achieved through discrediting her work. This will shock and destabilise her.

The bullies create difficulties and obstacles for her through their taking actions which, though unreasonable, if reasonable would be exclusionary factors for her being able to get Comcare.

What are exclusionary factors? Some exclusions apply in relation to Comcare e.g. if a person is significantly distressed due to workplace factors and simultaneously performance management action is being undertaken, then the employer will likely argue that the performance management action is reasonable and the target is distressed due to it.  This will be a major obstacle for her getting Comcare, as she will first need to prove that the performance management action is not reasonable administrative action. And this will involve huge additional costs to her in terms of her health, wellbeing and finances, often at a time when her cognitive functioning is seriously compromised due to anxiety and depression resulting from the bullying.

The bullies may focus on something minor about her work performance and on this basis initiate performance management action, even though this treatment of her is unreasonable and unfair and is markedly different (i.e. much less favourable) from that they would show towards their other colleagues.  Comcare will then disallow her claim, and she will need to seek a review, and then most likely go to AAT (the tribunal).  So she may be forced into a situation where she needs to take a package or resign due to poor health and finances.

The mob mentality in this type of situation is all-pervasive, as a kind of mob hysteria often takes over the bullies’ way of thinking and acting.  They are in this together. Procedural fairness, integrity and conscience are given short shrift, as the bullies prefer to take matters into their own hands.

Their colleague may even be unaware that performance management action has been initiated and only discover this later, when she seeks Comcare or obtains her personnel records.

So the first exclusionary clause and obstacle to their colleague’s health and financial recovery is in place.

By this time HR has become involved.

Their colleague’s resilience and “audacity” in trying to remain at work, or return to work after a break due to illness, would be likely to prompt the bullies to up their game.  They would do this with the help of HR.

Enter the hired gun psychiatrist.

This is the bullies’ trump card.  The bullies hope the hired gun will find the prospect of abusing and destroying their colleague an appealing one, at upwards of $2,500 at each opportunity to do so.  Other incentives too: the chance to drum up more business, plus a bit of a trip away thrown into the bargain.

 Their bullied colleague is coerced (bullied) into attending a psychiatric assessment usually with the bullies’ preferred hired gun psychiatrist.

The hired gun psychiatrist is useful to workplace bullies, on a number of fronts.  A true hired gun will help legitimise the bullying as well as help vindicate the bullies’ actions (those who have any conscience or self-awareness), and will shift “the blame”.

These psychiatrist hired guns basically have no accountability for their behaviours or for what they write in their assessments i.e. they can make false assertions, not record and relay accurately what the bullying victim has communicated to them, not follow their profession’s ethical guidelines, not follow relevant expert witness codes of conduct; and yet, escape accountability for any of these untoward behaviours.

The worst apparently that can happen to them is that a judge may discount their evidence, for example, and not take it into consideration.

 In Australia, the psychiatrists’ main professional organisation, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) does not have the statutory or legal authority to investigate complaints about psychiatrists.  This presumably would make the hired gun psychiatrists’ unstated mission a lot easier.

The official port of call to lodge a complaint about a medical practitioner varies from state to territory. But whether or not any of these bodies can do, or have the resolve to do, anything to curb the activities of these legitimised bullies is doubtful.  AAT evidence suggests that one particular agency’s preferred hired gun psychiatrist has been at it for years.

One of the hired gun psychiatrist’s main uses is their enabling APS bullies to work around the APS Code of Conduct i.e. psychiatrists can actually take over the mantle of bullying of their colleague. And this is what many of them would appear to be proficient in, and also enjoy doing.

The psychiatrist’s report is often abusive in itself, evidencing that neither the psychiatrist nor the employer has any respect for the bullied colleague’s dignity and humanity.  His report may also fail to contain any reasonable medical argument, and the psychiatrist may make claims that he is unable to substantiate and may even state the bullying is all in the person’s mind and is due to her having a “personality disorder” (not the bullies).

Some hired guns favour the diagnose of personality disorder, especially in cases where the bullied colleague is so distressed and ill that she is unable to defend herself against hearsay, unsubstantiated and/or unreasonable allegations that are communicated from the bullies to HR and then on to the hired gun.

If the hired gun’s evidence is that their bullied colleague suffers from a “personality disorder”, and the GP’s is something else, then this would usually mean that Comcare would disallow her claim for a psychological injury, initially.  The onus would then be on her to provide further evidence of the psychological injury and/or prove that her response to actions/workplace events would be within the bounds of normal behaviour by a reasonable person (one without a personality disorder) when faced with similar circumstances.  This will drag out the Comcare process and expose her to further illness. She also may need to “play the game” by engaging her own psychiatrist – which is costly as she may even be on unpaid leave.  And of course many people don’t like psychiatry per se.  And who could blame them after their hired guns experience.

The hired gun’s diagnosis of personality disorder, when received by HR, may be passed on to the bullies in her workplace – in breach not only of the agency’s policy but also potentially in breach of the Privacy Act.  She may already be so injured by the bullying that she doesn’t feel that lodging a complaint would be a possible option. A reasonable person would most likely perceive HR’s actions to be bullying.

Administrative processes are geared against her to ensure that she remains isolated and sick.  She may by now completely broken and unable to return to work, with or without compensation.

Another HR technique may be to phone the psychiatrist and tell the psychiatrist that his report is not clear enough.  A hired gun has been known to amend his report materially, on the basis of this type of discussion (prompting?) by HR.  This would be a breach of the expert witness code of conduct in relation to the provision by an expert of a medico-legal report.

But what would have happened in the event the psychiatrist is sympathetic to the plight of the bullied staff member?

What would happen if a psychiatrist strongly suspects what is occurring and is not devoid of moral conviction and chooses not to participate in the workplace mobbing?

In all likelihood the ethical psychiatrist would be pushed e.g. HR and the bullies would make up a story something along the lines that his reporting and recommendations are never clear enough, and this information would be fed back to the company for whom he contracts.  This would be one way to get rid of reasonable psychiatrists and ensure that the ones who remain on the circuit are hired guns.  The same HR actions would apply to ethical rehabilitation providers as well.

In the interim, the ethical psychiatrist who has seen the bullied employee, for less than one hour, may be hounded by HR and bombarded with questions, which require him to write supplementary report after supplementary report.  It is most likely hoped that the ethical psychiatrist will eventually just cave in or slip up as a result of this and give a “right” answer i.e. something that could be used against their targeted colleague by the bullies.  In their phrasing of a particular question, HR may prompt the ethical psychiatrist to answer a question in a particular way.

Bombarding a psychiatrist with more questions is also a means to delay their bullied colleague’s return to work or send her back to the unsafe workplace, in particular i.e. where her GP is recommending a transfer to a safe working environment.

So, after unreasonable delays where, contrary to best practices in relation to rehabilitation, she may be kept out of the workplace, with only token efforts made to return her to a safe working environment, time rolls around and once again the bullies decide to flex their muscle by coercing her yet again to be assessed by a psychiatrist.

By this time they go directly to the psychiatrist who they can rely on to give their preferred diagnosis. Enter the hired gun psychiatrist, the one with the reputation for giving diagnoses which are at odds with other medical experts – and presumably the one with the pre-arranged diagnosis of personality disorder.

I too would never have believed it, until it happened to me.

Read more on the APS Dignity Blog including Calls for Expressions of Interest for Class Action against Comcare which can also be views on the impressive APS (apsbullying.com) website


Thank you to APS Dignity for allowing us to publish and share your fabulous article.


Conducting workplace investigations: how it should be done – really?

Industrial tribunals have repeatedly criticised employers over botched investigations or their failure to investigate workplace incidents, including bullying. Acumen Lawyers practice director Brad Petley told attendees at a recent “how to conduct effective workplace investigations” webinar, hosted by OHS Alert’s associate publication HR Daily,that a properly-conducted investigation could be the key to your organisation’s success in averting or defending a prosecution or claim (that’s right, DEFENDING a prosecution!).

One of Petley’s messages is that “bullying complaints should never be “off the record”, and serious investigations should never be discussed at a coffee shop” – helooooo!!!

Conducting workplace investigations: how it should be done

According to the Hr Daily, every HR professional will face a serious workplace incident at some stage in their career. Will you know exactly what to do when confronted with a harassment complaint, a theft allegation, or an OHS event?

Industrial tribunals have repeatedly criticised employers over botched investigations or their failure to investigate workplace incidents. A properly-conducted investigation could be the key to your organisation’s success in averting or defending a prosecution or claim.

The webinar How to conduct effective workplace investigations which can be purchased in full concluded with a question and answer session and the following transcript contains lawyer Petley’s answers to eight critical questions.

1. What is the role of a “support person” in investigation interviews?

The role of a support person is to provide emotional support for someone being interviewed.

We’re talking about misconduct meetings, not informal counselling; a serious meeting to determine allegations of misconduct or perhaps gross negligence or something like that.

Sometimes a person may turn up to a meeting and might want to bring their lawyer. It needs to be made clear that their role is as a support person and that person’s witness. [It’s not] some sort of mini hearing where the person present stands up as an advocate and starts making submissions.

The caveat is that the role of a union representative, their right to represent an employee is recognised in the legislation, so [employers] have to be very careful about trying to limit their behaviour.

Those sorts of things should be sorted out before the meeting commences.

2. Do witnesses in an investigation need an offer of a support person?

Not unless for their emotional wellbeing it appears necessary. [WTF – we believe every person under “investigation” needs a support person and that this right should be made very clear and even encouraged!]

3. Is it best to conduct investigations offsite, onsite, or at a head office?

Full-blown investigation issues should never be conducted in a coffee shop. [WTF – helloooo!]

At a multi-site employer, usually it’s best to [hold investigation meetings] at head office, but it depends on the circumstances and facilities available.

4. What if bullying is alleged and the witnesses want to talk to the investigator “off the record”?

It often happens. Another way of saying this is, “I want to tell you what’s happened, and I want you to do something about it, but I don’t want to be involved, I don’t want to be responsible and I don’t want anyone to know I’ve said it”.

That can’t happen[ whaaaat?]. The employer needs to explain to the employee that it is bound by legal obligations to all employees and say, “We need to get your version so we can do something about it”, and inform them about how they’ll be supported.

It may be that the person doesn’t want to say anything further. Then it may be time for refresher training [around bullying] in the workplace, monitoring of people, and being mindful of that [alleged bully’s] interactions. [Talking about coercion???]

5. If a voice recorder is used during interviews, does the recording then need to be transcribed and a copy given to the employee at the centre of the allegations?

That recording is the employer’s record of the meeting. If that matter proceeds to an unfair dismissal meeting and there’s some dispute over what was said, that audio recording could be tendered in evidence and played to the industrial tribunal. [Seems like all people being “investigated” need to be aware that they may be recorder – make sire you ask!]

There is no obligation to provide a transcript [wow… are we talking about hiding the truth just in case?]. If a request for one is made, that request should be assessed at the time.

6. What should an employer do when it believes the respondent to a complaint might be suffering from a medical condition that affects their conduct at work?

You have to look at the factual circumstances of the matter. [Do you] just have a personal view that the person is not quite right, or is there other information that, for example, the person is bipolar and not taking their medication as they should? [Oh dear, here we go again, blame the victim and label him/her as unstable, rrright!]

Unless they have a medical qualification [managers] can’t make those decisions. Any suspicion has got to be backed by medical evidence if they wish to act upon it.

7. Are there any legal guidelines around what “undue delay” means?

If a matter needs to be investigated an employer shouldn’t necessarily bring their business to a screeching halt because of it, but the fact that someone is suspended doesn’t mean [they can think], “I can take my time on this one, we’ll get back to him in a fortnight’s time”.

If a person has been suspended, they should know their next step.

8. Once a decision has been made, should that be provided to the employee in writing?

Once a decision has been made it can be conveyed verbally, and that can be read out to the person, and then the actual sanction can be confirmed in writing.

Certainly an interesting “webinar”, it appears to us that it is geared towards protecting the employer (and not the victim) and again shows the so often encountered bias in those “investigations”… an this is how investigations are supposed to be conducted? Did I miss something?