The AAWI annual conference last Friday 10 September 2021 certainly lived up to the expectations set by its theme “broadening our horizons, learning to improve workplace investigations”.
Despite sudden Covid enforced lockdowns in Auckland, AAWI was able to pivot late in the piece, to a wholly online event as opposed to an in-person one. This was achieved seamlessly, and whilst we would have loved to have gathered at the beautiful Auckland Museum and in Australian hubs, the livestreamed conference nonetheless delivered on its promise of a rich and engaging programme.
NZ licensing and registration issues, legal developments and future possibilities for AAWI
The conference opened with two key leaders of the New Zealand (NZ) workplace investigation community – Andrew Scott-Howman (Wellington) and Graeme Colgan (Auckland). Andrew and Graeme outlined key cases impacting on the licensing and registration of workplace investigators in NZ. It is an evolving area and they highlighted both the need to ensure that reports and processes are not invalidated through lack of attention to licensing requirements; and the possible role to be played by AAWI in delivering on training or some form of accreditation and guiding codes. Graeme also spoke about developments in the law concerning the standard of proof in employment investigations – and how this affects investigators.
Judicial perspective on best practice in NZ
Next was Judge Corkill (Wellington), a judge of the NZ Employment Court. Judge Corkill outlined what he considered best practice in a NZ context. He considered who should be carrying out the investigation, the role of policies, terms in enterprise agreements, bullying definitions and the limited application of legal professional privilege. Interestingly, he did not believe it was necessarily best practice to engage an external workplace investigator, so long as:
- there was a full and fair process
- the parties deal with each other in good faith
- importantly the accused respondent has a reasonable opportunity to respond to allegations, including potentially draft investigation reports.
Judge Corkill also offered a number of practical tips – based on his extensive experience of considering investigation reports in the course of litigation brought before his Court.
Communicating respectfully in a LGBTQ context
Nora Rohman (Los Angeles) and Miles Grillo (Los Angeles) are both investigators at Private Investigator Inc.. Nora and Miles are regular educators in the LGBTQ community and were well placed to give us some tools to communicate effectively and respectfully with anyone we work with. A key take-away was for workplace investigators to demonstrate “cultural humility” in their engagement with investigation parties (as well as how it differs from cultural competence). They reminded us that cultures and language are always changing and no community is homogenous. Cultural humility is a lifetime commitment and you are never done learning. Along with a broader discussion of gender identity and how it intersects with investigations we were provided with a number of practical tips and resources including:
- a glossary of common terms to help better understand sex and gender identity
- a reminder of terms that are generally offensive
- how to ask people how they would like to be addressed or what pronouns they use (eg he/she/they/ze)
- how to be respectful when dealing with more personal questions in assault situations.
During the discussion Nora and Miles also provided some key phrases that can be helpful in all investigations, as well as those involving the LGBTIQ+ and other communities:
- “I might make mistakes, please let me know if I do. It is important to me that you feel fully understood.”
- “If you are wondering why I am asking a certain question, please ask me. I want to be as transparent as possible throughout this process.”
These phrases can be immediately included in our lexicon, thanks to this thought-provoking session.
Trauma informed techniques and other learnings from “Abuse in Care” Royal Commission
The session that followed was an inside look at the work of two lawyers working on a NZ Royal Commission “Abuse in Care”, investigating historical complaints involving young people in the care of institutions. Anne Toohey (Canterbury) and Ruth Thomas (Christchurch) provided an interesting insight into large scale investigations where primary considerations include where to get the information from and how to encourage participation. They utilised trauma informed interview techniques to assist with engendering witnesses’ trust. They highlighted the importance of not retraumatising participants and reflected on some ways to achieve this:
- being more aware of the existence of trauma
- being well prepared in advance
- being thorough in wellbeing checks and in offering wellbeing supports before, during and after interviews
- offering the supports and encouraging early engagement with those supports helps the person not to feel “worse off than they were before meeting with us”.
Cultural norms – an informed approach
Shelley Kopu (Auckland) a specialist in the intersection of workplace investigations that may involve someone from an indigenous community, reminded us that “If you want to effectively work with us, you have to first invest in understanding who we are, where we come from and what we value.” She spoke of whanau (family) and tikanga (Māori ways or practices), and the importance of these concepts in our dealings with Māori as investigators. Some of her advice resonated with what we had heard from Nora and Miles, where you are working in a community you may not be familiar with. What is the best, most informed approach, and what do we need to consider? For example, Shelley outlined how for Māori, it is important to know where someone is from, and being “face to face” is so important (“kanohi ko ti kanohi”). So how do you adapt when you have to go online due to pandemic restrictions? How do you build in “cultural safety”? How do you have regard to intergenerational trauma, which manifests to a distrust of a system and processes that has wronged the particular community? She shared the example of offering food, as a way of settling a wary witness. For Australian delegates this session was a prompt about similar challenges and questions to be asking, to understand the different needs of our Indigenous and Torres Strait Islander communities.
Update from a forensic technology perspective
In this next session we received an update on technology from Stan Gallo (Brisbane). In a clear way he took us back to the basics when you need to gather information about a data breach or other misconduct. Important questions are:
- who is the alleged perpetrator
- who had access
- who did access
- is there a ghost i.e. a reason why it might not be that person.
These days there is so much information, that key decisions have to be made about what information one actually needs to make out a case, what resources one has and how these are best expended.
The impact of #metoo on how we investigate sexual harassment
The prevention of sexual harassment is a high-profile topic in Australia right now, so the panel discussion on sexual harassment and how workplace investigations may have adjusted in the wake of #metoo was timely. Joanna Betteridge (Melbourne) interviewed Kristen Hilton (Melbourne) and Susan Cunningham (Sydney). Kristen and Susan brought different backgrounds and thus perspectives to questions about sexual harassment and investigations. Kristen has been involved in a number of reviews of large emergency services institutions, and their culture and conduct, as a (former) Victorian Equal Opportunity Commissioner. Susan as a busy and experienced workplace investigator was able to observe how organisations are more increasingly responsive to claims and taking a victim-centric approach:
- recognising that trauma can appear in various forms
- understanding some behaviours are just an attempt to cope
- building in how to show the complainant is safe
- empowering complainants through providing choices in finding a way though the mess.
Susan talked about asking questions like “What meaning did the conduct have for you? How did it effect you? What did you need to do to survive that?” This is different to a chronological examination of how things are because traumatic memories are often fragmented, fragile, and wrapped up in feelings. Both panellists were agreed about the ongoing cost to the community of sexual harassment if employers don’t have the right procedures and complaint handling processes in place.
After hours sexual assault scenario – identifying and navigating the right legal questions
The final panel discussion was a ripper, facilitated by Peta Nowacki (Melbourne), interviewing a criminal barrister Megan Casey (Melbourne) and law firm partner Michaela Moloney (Melbourne). They discussed a scenario that involved an after-hours sexual assault and how the employer was drawn in to dealing with it. What the considerations might be including:
- the employer’s WHS duty
- communications with the police
- confidentiality (and defamation)
- right to silence
- considerations around standing someone down.
They concluded with the preferred features of an effective investigation report, including ensuring there is clear analysis and thorough credibility assessments, headlines to guide the reader, and that the scope has not been overstepped.
Congratulations to the AAWI organizing committee for bringing the breadth of topics and experts into our orbit, and creating an accessible platform to ask questions and participate. Whilst we could not meet together, we instead reached a broader audience and had the benefit of sharing insights and learnings across borders.