Sub-Standard Investigations?

We have an investigative process. Our investigators have been trained. Our investigations though are still somewhat sub-standard. What can we do?

I am often asked how companies can improve the quality of investigations in the workplace. I often answer that question with a question. “Tell me where the majority of your evidence comes from?”The interviewing of witnesses is one of the most important aspects of any investigation as on most occasions the successful outcome hinges largely on the information obtained from witnesses.

In the early 1990’s, the police in the United Kingdom came under intense scrutiny in the way officers were conducting interviews. As a result, a Steering Party co-ordinated by the Home Office (UK), conducted research to gauge why police conducted interviews so poorly.

Following the outcomes of this research, a National (UK) interviewing training package, (called “Investigative interviewing”) commenced in 1993 with its theoretical structure now adopted worldwide, including policing jurisdictions within Australia.

In 2006 as the senior interviewing trainer at Detective Training School, I represented WA Police at the 2nd International Conference on Investigative Interviewing at the University Of Portsmouth, U.K. The conference was attended by university and law enforcement fraternity worldwide and highlighted the benefits of using this style of interview when gathering information from witnesses. The concept appeared to be adopted across the globe and is almost certainly used by law enforcement agencies across Australia.

Since leaving law enforcement, I have packaged this style of interviewing for the corporate sector and continue to train staff across industry sectors on how to interview. Whilst many have been trained on various investigative processes, very few have been taught to interview beyond the understanding of “ask open questions”. In fact, the reason why most interviews fail is because it is adhoc and there is no set structure.

The key to improving the quality of investigations therefore is the need to learn the art of conducting interviews. Many OHS, HR and other compliance staff from the government sector right through to the private and resource sector, are fast learning how effective interviewing can be with set structures in place.

(By Oscar Persichitti)

379_2975238Improving HR Investigations

 

The conduct of investigations in the workplace is now common practice. Within the Human Resource (HR) space, they generally occur when an employee has allegedly breached organizational policy or acted inappropriately or illegally.

Such examples may include allegations of bullying, harassment, damage or misuse of company property, theft or fraud.

For allegations that do warrant investigation, an investigator is appointed to establish the facts of the matter, prove or disprove the alleged behaviour and identify any mitigating circumstances relevant.

I have been fortunate to have worked with numerous organisations and individuals and often identify common shortfalls within investigative processes. Let me share some key points to improve the quality of your future investigations.

  • Always determine the nature of the investigation and the relevant policies or regulations you are investigating against.
  • Ensure you have established a ‘terms of reference’ to give the investigation clear direction, focus and boundaries.
  • Identify elements of proof required to substantiate (or not) the allegation.
  • Have a plan of action that ensures the investigation is completed timely and remains confidential.
  • If applicable, ensure you visit the site of the incident to obtain physical evidence and/or to get an appreciation of the environment.
  • Interview ALL available witnesses to ensure you gather their account of what happened. As discussed in my previous article, interviewing is key to the outcome of the investigation.
  • Obtain any other corroboratory documentary evidence.
  • Towards the end of the investigation, interview the alleged employee (respondent) to provide them with the opportunity to give their account of the incident, provide an explanation for their behaviour or refute the allegation.
  • Ensure you have a complete record of the investigation, documenting every step, including all actions taken, interviews and decisions made during the course of the investigation.
  • Apply the appropriate standard of proof. In most disciplinary investigations, allegations must be proved “on the balance of probabilities”. Be aware that it is possible that Fair Work Australia or a tribunal or court may find any subsequent disciplinary action or dismissal unjust or unreasonable and can therefore result in payment of compensation or damages.
  • Prepare an investigative report that presents an accurate account of the findings and a recommendation of the outcome.

Conducting an investigation is a process. Having a systematic approach and an understanding of your requirements whilst carrying out these functions will ensure investigative success.

(By Oscar Persichitti)

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Improving Incident Investigations in the workplace

There is no doubting the importance work health and safety plays in the workplace.  With most large organisations spending millions of dollars annually on compliance, it would be generally accepted that the benefits would offset the cost.  Most would also agree that’s its our moral obligation to ensure we don’t send our work colleagues and friends into harms way or into an environment without proper precautions.

Within the health and safety arena, incident investigations are generally carried out by internal (business) Health and Safety Representatives and by regulatory bodies in the event of a tragic incident.  The key outcomes for incident investigations include:

  • To prevent or decrease the likelihood of illness or injury;
  • To identify and correct unsafe behaviours and conditions; and
  • To identify any training needs.

Our many clients within the resource sector and the like (other private corporations and government institutions) often ask me how they can improve the quality of incident investigations within the workplace.

Through the many hours spent with health and safety specialists, I have found two key shortfalls that can impede incident investigations in the workplace if not conducted effectively.

1. Incorrect Investigation practices

Most health and safety representatives have completed some type of Root Cause Analysis (RCA) training.  This is always a good thing.  RCA however, needs to be conducted after proper investigation of the facts.  It means applying a systematic approach to the investigation before considering and reviewing risks and implementing appropriate control measures to manage them.

As with any other administrative investigation, all findings (which are used for RCA) need to be logical probative evidence and not based on assumptions and/or guesswork.  This means any information (often displayed by way of a timeline for RCA) needs to be properly scrutinised and corroborated before used as incident findings.

This is because although the purpose of conducting the investigation is to establish the cause(s) of the incident and not apportioning blame, incident investigations commonly conclude that the injured person’s conduct contributed in some way to the outcome.  Even though in most instances that behaviour is seen to arise from inadequate procedures and systems, there have been situations where the behaviour has warranted disciplinary action.

Whilst this sits outside of the scope of the health and safety representative and outside of that department itself, facts drawn from the investigation can be used to attribute responsibility to that person.  Therefore, any subsequent disciplinary action must be proved “on the balance of probabilities” because any such action can be subject to appeal.

2. Poor Interviewing techniques

Physical evidence will always be valuable in any investigation. This is a no brainer! The number one priority is always to correctly identify and seize all physical evidence for analysis.

The majority of information however, comes from witnesses to the event.  Is the evidence of witnesses affected by human frailty? Yes it is. This is not an excuse to avoid or minimise the interviewing of witnesses within an investigation (as I have heard by some people).   It should reinforce the reason why the information should be obtained carefully and corroborated by other sources.

Whilst many people have been trained on various investigative practices, very few have been taught to interview beyond the understanding of “ask open questions”.  In fact, the reason why most interviews fail is because it is adhoc and conducted with no set structure.  These are some of the lessons identified in the United Kingdom and applied within law enforcement world-wide.

In the early 1990’s, the police in the United Kingdom came under intense scrutiny in the way officers were conducting interviews.  As a result, a Steering Party co-ordinated by the Home Office (UK), conducted research to gauge why police conducted interviews so poorly.

Following the outcomes of this research, a National (UK) interviewing training package, (called “Investigative interviewing”) commenced in 1993 with its theoretical structure now adopted worldwide, including policing jurisdictions within Australia.

It is important to remember that whilst the majority of incident investigations remain in-house, a small number do get scrutinised be external agencies.  There is also an even smaller possibility that investigators conducting an investigation may end up in a court or tribunal explaining what they did or did not do in regards to the matter.  This is why as investigators, we must ensure each and every investigation is completed fully according to the scope. Your reputation and that of the organisation depends on it!

Oscar Persichitti