11/13/17 What Does Practical Justice Look Like for Complainants and - PDF document

11/13/17 What Does Practical Justice Look Like for Complainants and Respondents? Emma Starkey, Maurice Blackburn Australasian Association of Workplace Investigators Conference 20 October 2017 What is Practical Justice? “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” - Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 What Does Pratical Justice Look Like for 2 Complainants and Respondents? What Does Practical Justice Look Like for 3 Complainants and Respondents? 1

11/13/17 Trends 1. A means to an end… 2. Charade of fairness 3. To the letter of the law…. And not step further… 4. Regard for mental health or lack thereof 5. And when its all said and done…. N.B Rise in scrutiny of investigations through bullying jurisdiction What Does Practical Justice Look Like for 4 Complainants and Respondents? Are Investigations Always the Best Response? Not conducting a workplace investigation is highly under-rated What Does Practical Justice Look Like for 5 Complainants and Respondents? Workplace Investigations and Mental Health Complainant = By the time an employee complains about another employee’s conduct, the complainant’s health is likely to be detrimentally affected. Respondent = Experiences shock, trauma, isolation, dislocation. Mental health declines. Then faces investigation. Often whilst suspended and with confidentiality obligations What Does Practical Justice Look Like for 6 Complainants and Respondents? 2

11/13/17 Complainant Nicholich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784 “Assessing the expert evidence as a whole, I do not think it supports the respondent’s theory that Mr Nikolich ’s psychological problems were, and are, the result, only or primarily, of the reallocation decision made by Mr Sutherland. I think the better view is that they stem more from the aftermath of that decision, in the way Mr Nikolich was treated by Mr Sutherland and the failure of Ms Jowett and others to give him proper support in handling his problems with Mr Sutherland. Certainly that seems to be the view of Dr Jamieson and Dr Lowden, the two experts who know him best. I conclude, therefore, that the breaches of the three relevant sub-sections of WWU caused the psychological damage …This included a major depressive disorder.” What Does Practical Justice Look Like for 7 Complainants and Respondents? Common Grievances by Complainants • Didn’t actually want an investigation and/or understand what it meant to have one • What is their true objective of the complainant? • Lack of communication • No information or unrealistic expectations regarding timeframe • Don’t usually receive report, findings or consequences just that “matter dealt with” • Health worsens by process • Having to continue “as normal” respondent remains at work after investigation What Does Practical Justice Look Like for Complainants and Respondents? 8 Common Grievances of Respondent • No notice of investigation • Often immediate suspension • Directed to maintain confidentiality – lawful and reasonable? • Lack of communication • Vague Allegations & limited or no evidence • No report or only limited findings • No right of reply What Does Practical Justice Look Like for 9 Complainants and Respondents? 3

11/13/17 Examples of Vague & Deficient Allegations • “conversations are accusatory and they lack reasonableness and basic respect” • “pedantic focus on outcome and shaping an outcome (to get to predetermined outcome)” • “concerned that [respondent] seemed stress” • “at meetings, the respondent would repeatedly make introductions of the team using their title but failed to introduce the Complainant by his title” • “didn’t ask me if I wanted a cup of tea when she was making hers” • She threatened me with her hands as she was speaking to me What Does Practical Justice Look Like for 10 Complainants and Respondents? Decisions re Workplace Investigations Timing of response: see Panera v Qantas Airways Ltd [2015] • FWC 4527 Failed to give opportunity to respond, failed to take statement • & Failing to question witnesses named by respondent: see Pham v Sommerville [2016] FWC 2267 and Baker & Anorv Thiess Pty Ltd [2014] FWC 8301 • Impromptu conversation: Szentpaly v Basin Sands Logistics Pty Ltd [2013] FWC 4213 Workplace Investigations 11 Decisions re Workplace Investigations • Reducing statements/responses in writing: see White v Asciano Services Pty Ltd t/as Pacific National [2015] FWC 7466 Investigators findings need to be supported by evidence: • Osmond v St Vincent’s Hospital [2015] FWC 7677 • Does the punishment fit the crime: Kirkbright v K&S Freighters [2016] FWC 1555 and Robert Solin v Chevron Australia Pty Ltd [2017] FWC 2584 What Does Practical Justice Look Like for Complainants and Respondents? 12 4

11/13/17 Model Workplace Investigation 1. Decide whether workplace investigation is appropriate and complainant understands process and possible outcomes 2. Don’t assume automatic suspension 3. Develop & abide by processes in applicable policies, contracts, enterprise agreements or legislation 4. Appoint a qualified impartial investigator who remains independent from the employer and its legal representatives 5. Provide procedural fairness to both the complainant and respondent 6. Determine appropriate confidentiality direction and ensure all parties observe it, including witnesses 7. Communicate with complainant and respondent about timeframes, steps & keep them informed 13 Model Workplace Investigation 8. Employees should be provided with detailed allegations prior to the investigation beginning. 9. Provide evidence and material to support the allegations (de-identified if need be) 10. Provide sufficient time to respond having regard to number, complexity and state of health 11. Protect the independence of the investigation by not allowing the employer to influence the investigator, either directly or through its legal representatives 12. Appoint a truly impartial decision maker to act on the investigator’s findings 13. Ensure investigation is underpinned by a strong commitment to protecting and promoting mental health 14. Treat all parties with respect 14 Ideal Procedural Fairness 1. Sufficiently particularised allegations – who, what, where, when & evidence 2. An explanation as to the basis under which the investigation will occur (i.e. the policy / procedure / workplace instrument / legislation) 3. Outline of the process the investigation will follow, including the timeline/s, and updates along the way. 4. Opportunity to name relevant witnesses / persons for interview who support the employee’s response to the allegations 5. Opportunity to bring support persons to all investigation interviews and meetings 6. Copies of signed written statements of each interview 7. Confirmation of the independence of the investigator’s report 8. A copy of the investigation report and findings; 9. An opportunity to respond and comment before final decision made 10. Don’t blur fact finding and disciplinary What Does Practical Justice Look Like for Complainants and Respondents? 15 5

11/13/17 Ho How w Woul ould You L ou Like to Be to Be Treate Tre ated? Questions? Twitter: @emmastarkey4 Phone: (03) 9605 2638 Email: estarkey@mauriceblackburn.com.au Website: https://www.mauriceblackburn.com.au/our-people/lawyers/ emma-starkey/ 6