AUSTRALIA Trends and Developments Contributed by: Kathy Dalton, Jane Wright, Lauren Barel and Ena Stojkovic, Workdynamic Australia
The Australian Human Rights Commission (AHRC) has published guidelines for implementing person-centred and trauma-informed complaint-handling processes. These identify the purpose and benefits of such pro - cesses as including: • protecting the safety and dignity of people affected by unlawful behaviours; • increasing confidence and willingness to report unlawful behaviours; • supporting the healing of people affected by unlawful behaviours; and • preventing further harm of people affected by unlawful behaviours. In practice, this requires employers to take a more deliberate and considered approach to how investi - gations are conducted. This includes who conducts interviews and how these are structured, how partici - pants are supported, and ensuring that investigators are trained in trauma‑informed practice. This approach also recognises that trauma can affect how participants present their evidence during inter - views. Individuals affected by trauma may struggle to answer questions fluidly, recall events in strict chron - ological order, or articulate precise language used during an incident. A trauma‑informed approach rec - ognises these matters as possible trauma responses and avoids drawing negative assumptions about a person’s credibility. At the same time, employees are increasingly express - ing concerns not only about the conduct being inves - tigated but also about the investigation process itself. In particular, employees may report feeling psycho - logically unsafe or distressed when participating in interviews, or feeling unsupported by their employer during the process. These concerns can arise not only for complainants and respondents but for witnesses as well. Employers need to take such concerns seriously and address them proactively, as these matters can influ - ence how employees engage with the investigation process, including their willingness to participate fully or provide candid evidence. More broadly, these concerns also intersect with an employer’s obligations
to identify and manage psychosocial hazards under work health and safety laws. Use of online interviews With the changing hybrid‑working landscape, it has become increasingly practical and efficient to conduct interviews through videoconference platforms, such as on Microsoft Teams or Zoom, rather than relying solely on in‑person interviews. While there are circumstances in which face‑to‑face interviews may still be preferable, online interviews are now largely the norm in workplace investigations, particularly where: • parties are geographically dispersed; • travel would cause unnecessary delay or cost; • issues are straightforward and not highly con - tested; • confidentiality and privacy can be maintained; and • measures can be put in place to ensure confidenti - ality and privacy. In addition, online interviews offer important benefits in terms of confidentiality. By avoiding on‑site attend - ance, the presence of an external investigator does not attract attention or prompt questions, speculation and distraction within the workplace. That said, employers should still assess whether in- person interviews are more appropriate in certain cir - cumstances, including, for example, where allegations are particularly serious or sensitive, or where a partici - pant’s demeanour or credit is likely in issue. Covert recordings Covert recordings are emerging as a significant chal - lenge in workplace investigations, with employees increasingly using smartphones or other devices to secretly capture conversations they fear may later be contested, whether during the investigation itself or as evidence of the underlying conduct. This trend highlights the need for employers to: • update or reinforce policies governing use of recording devices;
33 CHAMBERS.COM
Powered by FlippingBook