Know Your Rights : Workplace Investigations

21-Oct-2016

 

 

Workplace Investigations  

Workplace Investigations are common concern for our members. It is important to contact AMSOF as soon as you are informed that a workplace investigation is being commenced. Our experienced industrial officers guide and assist our members through the process of an investigation which can be stressful, complex and have potentially negative ramifications for your career.

Why are workplace investigations conducted?

Workplace Investigations are conducted in relation to conduct such as alleged bullying or harassment in the workplace, breaches of health and safety policy or other disciplinary matters. In addition, workplace investigations can be conducted in relation to clinical performance or patient care.

Employees can be involved in workplace investigations in several ways, such as, being the complainant, the employee being investigated or a witness.

What are the relevant policies?

Depending on the nature of the issue, the following policy directives may apply:

 

Type of issue

Title of Policy

Number of Policy

Disciplinary matters

A Framework for Managing the Disciplinary Process in NSW Health

http://www0.health.nsw.gov.au/policies/pd/2014/pdf/PD2014_042.pdf

Harassment matters

Joint management and Employee Association Policy Statement on Bullying, Harassment and Discrimination

http://www0.health.nsw.gov.au/policies/pd/2011/pdf/PD2011_018.pdf

Systems Incident

Incident Management Policy

http://www0.health.nsw.gov.au/policies/pd/2014/PD2014_004.html

Grievances

Effective Grievance Resolution: Policy & Better Practice

http://www0.health.nsw.gov.au/archive/policies/PD/2010/PD2010_007.html

Possible corrupt conduct

Reporting Possible Corrupt Conduct to the Independent Commission Against Corruption

http://www0.health.nsw.gov.au/policies/pd/2016/pdf/PD2016_029.pdf

Any complaints or concerns related to the clinical performance

 

Complaint or Concern about a Clinician - Principles for Action space

http://www0.health.nsw.gov.au/policies/pd/2006/PD2006_007.html

 

 

What should you do if you are the subject of a workplace investigation?

The policy directives listed above dictate how the workplace investigations should proceed. At a general level, we set out some key fundamental tips to protect yourself if you are the subject of a workplace investigation:

Notification and response to allegation phase

  Seek assistance and guidance from ASMOF as soon as possible;

  Ensure you are notified of, and receive a copy of, the relevant Policy Directive that applies to the investigation;

  Ensure all allegations are properly particularised with sufficient clarity to enable you to respond to the allegations. You should never have to guess what you think is meant by the allegation; 

  Ask for the allegations in writing;

  Ask for extra time to consider the allegations properly, seek advice and arrange a support person;

  Consider drafting a written response to the allegations to take with you to any fact finding meeting;

  Prepare for the fact finding meeting – try and remember the events clearly and in an orderly fashion;

  In any fact finding meeting, you should have a support person with you and you should ensure that file notes are taken;

  In any fact finding meeting, you should be wary of the investigator asking “leading questions” rather than open questions. If leading questions are asked, you should consider if it is appropriate to answer them and refuse to if it is not;

  You should put forward witnesses/evidence to verify your version of events;

  Be clear on what you deny and what you admit occurred. 

 

Outcomes of findings

  Findings of misconduct must be proved to the civil standard, that is, “on the balance of probabilities”. In other words, based on available evidence, it must be more probable that misconduct has occurred than that it has not.

  In addition, consistent with the “Briginshaw v Briginshaw principle”, the more serious the potential misconduct, and therefore the more serious the consequences for the staff member, the stronger the evidence must be to support an adverse finding.

  In a reasonably short time frame you should respond in writing to any aspects of the findings you hold concerns about, disagree with or refute. Request that the decision maker ensure that your concerns are taken to account.

If you need assistance in relation to a workplace investigation, contact the ASMOF office.

 

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