March 2018

Workplace scandals: some lessons for employers

It is becoming too common that workplace scandals are played out in the media. Business is forced to scramble in response. Many interests and responsibilities compete in the desire to contain the damage and move on. Such circumstances present challenging times for a business.

In this bulletin, we examine two recent, yet contrasting scandals, and identify some lessons for employers when investigating workplace complaints.

Ball tampering … responding swiftly

Unless you have been living under a rock, you would be aware that Australian cricket team is in turmoil.  The Australian captain and opening batsman have admitted to ball tampering in a Test Match against South Africa.  The captain and vice-captain have been suspended for 12 months, and the opener for nine months.  There will likely be more casualties along the way.  This as an embarrassing disaster for Australian cricket but an interesting case study in workplace investigations.

For the benefit of the rock-dwellers, let’s look at the facts.  The opening batsman was caught on camera using sand paper to try to “scruff” up one side of the cricket ball.  In theory, this would help the Aussie fast bowlers develop ‘reverse swing’, to get the South African batsmen out more quickly.  The problem?  First, it didn’t work.  Australia lost the match.  Second, and much more importantly, ball-tampering is against the “laws” of cricket.  At the end of the day, the players deliberately cheated to gain an unfair advantage, and then tried to cover it up.

Cricket Australia’s response may not be perfect, but it was swift. CEO James Sutherland announced that the Head of Integrity was immediately hopping on a plane to South Africa to “get to the bottom of this and … take appropriate action.” Less than a week later, we have initial outcomes.

So what can employers learn from Cricket Australia’s approach?

There has been no external investigator appointed. There are no formal terms of reference. Cricket Australia is not over complicating matters with an independent and time consuming formal investigation. There is no process of presenting allegations before anyone is questioned. Cricket Australia has got to the scene and is exercising its right to ask questions. It is the simple and effective approach of ‘tell us what happened’.

Workplace investigators may say Cricket Australia’s approach is unusual. The more common response is an employer launching a thorough independent investigation, with external investigators. Procedural fairness and more procedural fairness. The process is drawn out and expensive. It is adversarial and stressful for everyone.

The simple purpose of any workplace “investigation” is to discover the facts or information in a timely manner. It is permissible to go straight to the employee and ask them to tell you what happened. Employees must answer questions relating to their employment and duties.

Cricket Australia’s fast, straight-to-the-point approach, can be commended. It is dealing with the scandal promptly and moving forward.

#metoo … another investigation

The (former) Lord Mayor of Melbourne, Mr Robert Doyle, was confronted in late 2017 with allegations of sexual harassment by two female councillors. It became front page news about how he inappropriately touched the councillors. The City of Melbourne engaged Queen’s Counsel to conduct an investigation.

It was March 2018 when the outcome of the investigation was released to the public, although Mr Doyle had already resigned. Unfortunately for all involved, the process had been drawn out and, no doubt, expensive. Eventually, some of the allegations were substantiated.

Perhaps the process was justified. Serious allegations of sexual harassment can be career destroying. Equally, the complainants deserved dignity and respect for speaking up. But how does one decide if the allegations are substantiated?

According to SBS: “The investigation used what is known as the “Briginshaw standard” which requires them to be “reasonably satisfied” of specific allegations. It is a lower standard of proof than the criminal standard which is proof beyond a reasonable doubt”. Is this a reference to a new standard of proof?

The infamous Briginshaw standard represents probably one of the biggest problems with workplace investigations. The case of Briginshaw v Briginshaw merely described the thinking process for a court in determining serious allegations. And yet, this Briginshaw standard is routinely applied in workplace investigations where it has no place.

Applying the Briginshaw standard to workplace investigations fails to recognise the differences between the function of a court, and that of an investigator (as well as their different experiences, skills and qualifications). It can lead to mistakes by an investigator, and more often than not, allegations are left unsubstantiated in circumstances where they may very well have occurred. Indeed, it could be said that the Briginshaw standard discourages complainants from speaking up.

Our simple tip

Workplaces are not courts. Investigators are not judges. Don’t get tied up in the Briginshaw standard and the other technicalities of litigation.

If your workplace faces an allegation, ask questions, examine documents and get to the bottom of the matter. Think carefully when making conclusions about what happened, and be ready to explain your reasoning and conclusions. Make a decision as to what follows and then ‘bat on’ with what you do best – running your business!

Authors: James Mattson & Ryan Murphy