John Farren’s Post

It’s Friday! ... Keep laughing people.... :) --- Please feel free to repost this post by tapping the 🔁 button below if you think your connections would enjoy it. #pointyendofhr #humanresources #employmentlaw #gettingbeyondhesaidshesaid

I have written on LinkedIn before about some of the great resources the Fair Work Commission has developed to assist parties and/or their representatives in relation to their proceedings and appearances before the Tribunal.   Probably the best and most comprehensive set of resources produced by the FWC are their benchbooks.   Many courts and tribunals prepare bench books, primarily for the purpose of ensuring that the judges or tribunal members take a consistent approach to hearing and deciding matters that come before them.   However, the FWC’s benchbooks have also been prepared and designed to be handbooks to help parties that cannot afford representation (particularly self-represented employees and small business owners) understand and navigate the Fair Work legislation, key decisions and FWC processes.   This obviously assists these parties, but they also assist the FWC members because they help these parties better understand the legal environment into which they have found themselves and to prepare their cases.   In fact, the benchbooks are so well produced that they are also great resources for advocates and lawyers.    There are currently benchbooks in relation to:   ➡  Anti-Bullying ➡  Enterprise Agreements ➡  General Protections ➡  Industrial Action ➡  Sexual Harassment ➡  Unfair Dismissals ➡  Jobkeeper Disputes   I commend these resources to you and will drop a link to the benchbook home page in the comments below.   ---- Please feel free to repost this post by tapping the 🔁 button below if you think your connections would enjoy it.   #gettingbeyondhesaidshesaid #humanresources #pointyendofhr #employmentlaw  

Q. How should you assess the quality of a prospective external workplace investigator? A. The answer is "carefully"! But how? This list is not exhaustive, but it's a good start: 1️⃣  Be aware of an investigator that is available to start today. Like all professions, great workplace investigators are always in high demand and are often turning down more work than they accept. Having said that, you might have got lucky and contacted the investigator as they finished up another investigation or returned from holidays etc, so certainly don’t use this as the only consideration. But still… 2️⃣  Ask them about their experience. The investigator should have demonstrable experience in undertaking complex investigations. If they can offer referees to speak to, all the better. 3️⃣  Ask them if they will provide a draft report. Unless there is some statutory requirement to do so, a truly independent investigator should politely but firmly refuse. Draft reports beg an argument about independence and client interference in the investigation process and outcomes, even if the draft is requested for benign reasons. 4️⃣  Ask them how they approach the investigation of unwitnessed events. This is CRITICAL. They should be able to explain how they get beyond "he-said, she-said". As an employment lawyer, I review lots of investigation reports for employer and employee clients and this is a key differentiator between poor to ordinary investigators and great investigators. If their answer is “well, if an allegation is unwitnessed, it cannot be substantiated” - run away! This is principally about the sophistication of the investigator’s interview and analysis skills and their ability to undertake credibility assessments that allow for sensible and safe decision making. 5️⃣  Don't assume that if an investigator is a lawyer or an ex-police detective that they are a good workplace investigator - and that's coming from a lawyer! Some lawyers, particularly litigation lawyers, cannot cast aside their adversarial mindset and adopt the independent, impartial fact-finding mindset that is required of a workplace investigator. Similarly, some ex-police officers cannot cast aside their prosecutorial mindset. Of course, there are still many fine workplace investigators that come from both these backgrounds, but it is an issue that I still commonly see. 6️⃣  Be aware of law firms that offer to be your organisation's legal advisor and conduct the workplace investigation. In my view, there is an inherent conflict between being an organisation's legal advisor and also trying to conduct what is meant to be an independent, impartial workplace investigation, even if different lawyers in the same firm undertake the legal and investigation tasks. Any other considerations (comment below)? #gettingbeyondhesaidshesaid #pointyendofhr #humanresources #employmentlaw

Going Beyond Assumptions - Workplace Investigations Don't underestimate the importance of often-overlooked evidence in workplace investigations.   When a workplace investigator is investigating an apparently unwitnessed event, they should not assume there is not other evidence that may assist in determining whether the allegations is substantiated or not.   We sometime call these “hidden sources of evidence”. But what do I mean by that? Well, it’s not that they are literally “hidden”, it’s just that they are often overlooked by workplace investigators.  To start with, there will sometimes be “nearby” witnesses that witnessed the aftermath or a party mentioned to them what happened. While these types of evidence are not “direct” evidence of what occurred, they are forms of circumstantial evidence that can be given appropriate weight in a workplace investigation.  Questions you can ask complainants to reveal hidden sources of evidence include: ❓  Was anybody sitting outside or nearby that might have seen or heard what happened from their vantage point? ❓  Did you speak to anybody afterwards? If so, who/when/where/how and so on? If not, why not? ❓  Did you make any notes of what occurred at the time in a diary or email or record a voice memo? ❓  Did you send an email to someone else or text or call someone? ❓  Did you debrief with someone? Some other potential sources of evidence that are worth considering include: •      CCTV, both that of the workplace and that from 3rd parties •      Call logs from mobile phones and landlines •      Radio logs and audio recordings from radio or phone calls •      Text messages and their metadata •      GPS movement history •      Maps or charts of workplaces •      Forensic computer or phone evidence •      Photos and videos and their metadata •      Handwriting evidence •      Voice memos •      Swipe card access records •      Printing and photocopying records •      Logging into computer or database/software records •      Timesheets •      Leave records •      Inspections of the workplace •      Usual email, calendar and contemporaneous note evidence   Have I missed anything here?   ---- Please feel free to repost this post by tapping the 🔁 button below if you think your connections would enjoy it. #gettingbeyondhesaidshesaid #humanresources #pointyendofhr #employmentlaw 

Q.  What should a workplace investigation report contain?   A.  A workplace 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; witnesses who were identified but unable to be interviewed);   ✔  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;   ✔  (if required) Recommendations; and   ✔  An indexed set of attachments.   The report needs to: ✴  Stand on its own two feet; ✴  Be easy to understand by any reader; and ✴  Be able to be efficiently reviewed by other advisers of the employer, such as lawyers and employee relations practitioners.   If you think I’ve missed anything, please add your thoughts in the comments below. ---- Please repost this post by tapping the 🔁 button below if you think your connections would enjoy it.   #pointyendofhr #gettingbeyondhesaidshesaid #employmentlaw #humanresources