Common use of Gathering Information Clause in Contracts

Gathering Information. The task of an investigator is to gather information to assist the employer to make an informed decision. Workplace investigations typically involve enquiring, collecting information and ascertaining facts. Lawfully gather potential sources of information which may assist with ascertaining the fact(s) in issue (e.g. documents, video footage, and witness statements). Legislation which may be relevant includes, for example: • Privacy and Personal Information Protection Act 1998 (NSW) • Workplace Surveillance Act 2005 (NSW) • Public Interest Disclosures Act 1994 (NSW) • Independent Commission Against Corruption Act 1988 (NSW) Who should be interviewed, and in what order? ▇▇▇▇▇▇▇▇▇ who should be interviewed and the order in which witnesses are to be interviewed. It is often preferable to interview the person(s) who made the complaint or allegation first as this can assist with obtaining further and better details which may need to be put to other witnesses at a later stage. Witnesses should be interviewed during a face-to-face meeting. Where it is not reasonably practicable to interview witnesses during a face-to-face meeting it may be necessary for the investigator to explore other options, such as conducting an interview by telephone, videoconference (▇.▇. ▇▇▇▇▇) and/or by obtaining a written statement from the witness. Employers can require their own employees to cooperate with workplace investigations into possible unsatisfactory work performance or conduct by an employee, which may include requiring employees to attend interviews with the investigator(s). • Advise the employee that the employer has commenced a workplace investigation and provide a summary of the issue(s) under investigation. • Advise the employee of the person(s) conducting the investigation. • Advise the employee of any applicable requirements in relation to confidentiality; and • Provide reasonable notice of the requirement to attend an interview (date, time and location). Employees may request the presence of a union representative and/or a support person during the interview. • inform the employee of the substance of the alleged unsatisfactory work performance or conduct in sufficient detail so as to enable the employee to properly understand the allegation(s); and • remind the employee that the employer has an Employee Assistance Program (EAP) and how it may be accessed. At the commencement of each interview the investigator should: • Provide an introduction • Explain the purpose of the interview • Explain the role of the union representative or support person • Explain the investigation process (in general terms). Special requirements when interviewing an employee who is alleged to have engaged in unsatisfactory work performance or conduct When interviewing an employee who is alleged to have engaged in unsatisfactory work performance or conduct, before concluding the investigation (how and when this is done is up to the investigator, depending on the circumstances): • Inform the employee of the main points of the allegation(s) in sufficient detail so as to enable the employee to properly understand the allegation(s). • Provide the employee with a reasonable opportunity to respond to the allegation(s). • Subject to applicable legal requirements, show the employee relevant evidence, if any, which contradicts the employee’s version of the facts (e.g. documents, emails and/or video footage). Subclause 36A(iv) of the Agreement provides that an employee shall: During fact finding interviews, union representatives and support persons should not: • Advocate on behalf of the interviewee; • Answer questions on behalf of the interviewee; • Investigate; • Interfere with or obstruct the investigation process. Where a person assisting an employee is a union representative, they may have skills and/or experience that can assist in ensuring an effective investigation. In such instances, the industrial parties to the Agreement recommend that investigators extend professional courtesies to the union representative, which may include, for example, allowing the union representative to suggest that particular questions be asked which may have been overlooked, provided that they do not interfere with or obstruct the investigation process. After the initial round of information gathering, consider whether it is necessary, in order to ascertain a fact in issue, to re-interview a witness, interview further witnesses or gather additional information from other sources. If the anticipated length of the investigation needs to be extended the employer should notify the employee and explain the reason(s) for the extension, and where the employee has requested the involvement of a union representative, such notice should also be provided to the union representative.