Review of Stage 2 Investigation and Participant Response

Posted on May 22, 2014. Filed under: Uncategorized |

Response to CSIRO Investigation into Workplace Bullying and other unreasonable behaviour

The Stage 2 findings of the Investigation into Workplace Bullying and other unreasonable behaviour were released to CSIRO on the 15th of May 2014 and subsequently posted on the HWL Ebsworth website towards the end of May 2014. The Stage 2 report can be viewed by clicking on the following links:

Stage 2 General Findings

http://www.hwlebsworth.com.au/images/generalfindingsreport_phase2.pdf

Appendices:

http://www.hwlebsworth.com.au/images/appendixes_2.pdf

Victims of CSIRO have taken time to provide a considered response to the Stage 2 General Findings Report, incorporating the views of our members who elected to participate in the process.

Member’s Responses

Victims of CSIRO have to date received 100% negative feedback from our members who participated in the investigation process. We have also received communication from new contributors who made contact with us to express their dissatisfaction with the process and its outcomes.

In the essence of fairness we would welcome contact from any participant who has experienced a positive outcome as a result of the investigation.

Common Criticisms and Complaints

The top criticisms and complaints relating to the investigation for which we have received feedback are as follows:

1. Lack of Procedural Justice and Poor Application of Due Process Considerations

 A fundamental complaint of our members was the lack of procedural justice in the investigation process. Many reported receiving only minimal contact from the investigation team and complained of a fundamental lack of the “right of reply” to any contentions in evidence raised by the CSIRO in response to the allegations.

Our members complained that the responses provided by CSIRO were either inaccurate or that the CSIRO failed to provide documents in their possession to the investigation team which would have contradicted these contentions.

A common criticism of the investigative process is that the investigation team appeared to accept the response provided by the CSIRO seemingly without challenge.

In time honoured and well established investigative processes an allegation is made, a response is issued, and the applicant is provided with an opportunity to respond to any contention raised by the respondent. The matter is subsequently determined on the balance of probabilities.

In fact this is the process outlined in CSIRO Grievance Policies for investigation into Formal Grievances.

We question why the Investigator, as an experienced legal professional and former Commonwealth Ombudsman chose to depart from this well-established investigative method.

2. Incorrect and unauthorised “paraphrasing” of submissions

In many instances, members report that the investigators redrafted their allegations and submitted them to CSIRO, without affording them an opportunity to review the draft. This has resulted in allegations being fundamentally misrepresented by the investigator, a significant failure of the process. These can easily be substantiated by our members.

The redrafting of allegations without the participant’s approval represents a gross miscarriage of justice for those who wished specific allegations to be investigated and addressed.

3. Exclusion of Serious Allegations from Investigation

 Our members reported that they felt that their most serious allegations were ignored or excluded from consideration by the investigator. In particular, the investigation team appeared to be focused solely on the initial instances of bullying and other unreasonable behaviour but failed to pursue a line of questioning into allegations made in relation the subsequent handling of such complaints, particularly those which involved intimidation, victimisation or otherwise unfavourable treatment of the complainant after making their initial complaint.

Phase 1 of the investigation highlighted a failure to follow proper administrative processes and poor adherence to CSIRO policies. This finding was further underscored in the Stage 2 general findings which identified inequitable application of the misconduct policy based upon the perceived value of an employee to the CSIRO. We therefore must strongly question the motivation of the investigator in failing to pursue this particular line of questioning for complainants in Stage 2.

Those who experienced bullying and other unreasonable behaviour in the CSIRO unanimously believe that the severity of their injury was increased through mishandling by managers and HR, not as a result of the initial incidence of unreasonable behaviour. This was worded very clearly in complainant’s submissions before and during the investigation. In many examples the managers allowed the perpetrator to engage in further unreasonable behaviour towards the complainant and/or other employees.

In addition, a number of our members report that they were not made aware that elements of their submission had been excluded from further investigation until after giving their consent to participate in phase 2 and subsequent to investigation of their complaints.

This can at best be described as a gross breakdown in communication, or at worst as a deliberate strategy to prevent informed participation in the investigation process. Participants felt they were let down or deceived on discovering at such a late stage that significant allegations had been excluded.  Furthermore, participants were left with little faith in the integrity of the process.

4. Arbitrary Exclusion from Participation in Stage 2

Our Members have reported that in some cases they felt arbitrarily excluded from the Phase 2 Investigation and not provided with an opportunity to contest or question the decision to exclude them from further participation.

5. General conduct/feedback in relation to the investigation team

Concerns were raised by a number of our members about a perceived lack of interest in their submissions by members of the investigation team, particularly in relation to the lack of due diligence as referred to in Item 2 in ensuring that their complaints were accurately represented.

In particular, one of our members complained about being heavily solicited to participate in the investigation process despite having declined to provide a submission in the first instance. The member reported feeling quite intimidated by the unsolicited approaches made towards them.

This reflects our own limited experiences with the investigation team, where Victims of CSIRO were pressured by the Investigation Team to provide details of confidential complaints made to us by our members, despite making it perfectly clear to investigator at the outset that our policy is and always will be NOT to disseminate the confidential information of our members without first seeking expressed written permission to do. Those of our members who wished to do so provided individual submissions directly to the Investigator.

The investigator subsequently used our strict privacy policies to publicly criticise Victims of CSIRO and its members for refusing to divulge details of individual complainants.

Other questionable conduct of the investigator involve the highly inappropriate criticism of those critical of the investigation process, (particularly the highly exclusionary and rather vague Terms Of Reference document) which was not just limited to the Victims of CSIRO but also criticised serving Members of Parliament. Despite being completely inappropriate for a seemingly “independent” investigator, many of the statements made by the Investigator were either pure supposition or completely inaccurate.

6. Lack of Independence of the Investigation Process

Members have provided credible evidence to suggest that the CSIRO has not remained at “arm’s length” from the investigation process as stated by the CSIRO CEO Dr Megan Clark at a Senate Estimates hearing in February 2013, with Dr Clark herself seeking to influence the investigation team as to which submissions to investigate or not to investigate. It is not unreasonable to consider that, if the CSIRO is interfering in such an overt manner as to pick and choose what investigations are being considered, it may be fundamentally interfering in other ways. That the investigators have been willing to comply with Dr Clark’s requests indicates a lack of independence from CSIRO and a disregard of the terms of reference for the investigation.

GENERAL SUMMARY:

Despite being one of the strongest public proponents for an investigation into allegations of workplace bullying and other misconduct apparent within the CSIRO, our view of the investigation process is far from positive. We have attempted to highlight, proactively address and constructively engage on the inherent flaws in the investigation process based upon our own experiences and those of our members.

On the basis of members and non-members experiences we feel that on the whole, the investigation has been a gross waste of tax payer resources (how much is yet to be revealed) as it has failed to provide any truly independent transparency in the investigation of such allegations.

Victims participated in the investigation in the good faith expectation that their allegations would be investigated to identify breaches of the code of conduct including bullying, misconduct or unreasonable behaviour. However, subsequent changes to the Q&A (Question 22) on the CSIRO webpage made on 14th February 2014 belatedly revealed that “Professor Pearce will not be making a finding that there has been misconduct”. We question 1), why the process was amended and 2), the point of the independent investigation. The phase 2 general findings report identifies a “number of cases” where staff members “appeared not to have acted properly”, yet has recommended CSIRO conduct misconduct enquiries for only 2 cases. Thus it appears that a number of cases of behaviour that could be identified as misconduct have been disregarded without proper investigation.

In making his recommendations on individual submissions, the investigator appears to have given little consideration to the outcomes requested by participants. The investigator has denied requests for apologies from perpetrators, even where his investigation established that the perpetrator acted unreasonably. In denying these requests he has denied victims the closure they sought. In contributing to the investigation, participants have re-experienced and re-lived their earlier trauma. Yet the process has failed to provide them with any form of justice or closure. In some cases this may lead to further incapacity and in others may lead toparticipants who feel they have been treated poorly in this process seeking further legal redress.

Unfortunately, based upon their combined experiences, it appears to participants that this investigation was merely a legal risk discovery and mitigation exercise and a shallow political exercise on the part of an outgoing senior executive aimed at appearing to address bullying and other unreasonable behaviour in the workplace rather than actually committing to protect the health and wellbeing of its employees or to ensure a “fair go” for all.

This investigation process has done nothing to deter unreasonable behaviour in workplaces throughout CSIRO and Victims of CSIRO continue to receive complaints from employees in relation to both acts of inappropriate conduct and the subsequent handling of such matters. Those participants who remain in CSIRO have further lost trust in the complaints process, having been badly let down by this highly-publicised and high-profile investigation. The general findings report identified a reluctance of staff to make complaints about bullying and unreasonable behaviour. This investigation has confirmed the perception that complaints will not be investigated fairly and that perpetrators will not be censured appropriately. Even a statutory instrument in the form of an Improvement Notice issued by Comcare in 2012 has failed to result in any significant improvement in workplace behaviour so it is highly doubtful that a voluntary commitment by CSIRO to some lofty ideals recommended by the Investigator will have any significant impact whatsoever.

The only true change will occur where employees, particularly those at senior levels, are held accountable for their actions, something which the CSIRO executive, and now this wasted investigation process have largely failed to achieve.

Without a strong impetus for change, change will not occur! CSIRO employees must continue to hold the CSIRO executive and Board accountable for their workplace safety.

Other General Observations regarding the Investigation

The Investigation has completely missed the point!

Workplace bullying advocates and particularly their supporting psychological/psychiatric specialists have long held the view that the way in which an employer responds to allegations of this nature have far more reaching consequences than the initial behaviour being experienced by the victim or target of such behaviours. This is supported by international research which suggests that more severe and long-term damage is caused by the mishandling of bullying complaints.

In focusing primarily on initial allegations of bullying and other unreasonable behaviour (and side-stepping the higher level mismanagement), the investigation has completely failed to address the fundamental complaints of participants, that is, the poor, incompetent and even fundamentally biased or compromised handling of their complaints by CSIRO and the subsequent harm it caused them.

Under-reporting of complaints

We are also concerned that the number of separate allegations has been under-reported by the investigator.   It seems unlikely that 114 submissions resulted in only 130 separate allegations, as this equates to only ~1.23 complaints per submission. This is clearly incongruous with our own experiences and that of our members who have provided Victims of CSIRO with their submissions containing multiple allegations relating to multiple individuals.

Failure to identify a culture of tolerance to bullying

In his Phase 1 general findings report the investigator states: “On the evidence before us there is no major problem of workplace bullying or other unreasonable behaviour in CSIRO and it is definitely not possible to describe the work culture at CSIRO as ‘toxic’”. However in the same report, he identifies systemic failures of management and HR to properly apply procedures for dealing with workplace bullying and other unreasonable behaviour. He further identifies a “strong pattern” of people “being unwilling to speak up to report workplace bullying” and acknowledges the typical reasons behind this phenomenon as “fear of reprisal and adverse impact on career”. Findings of reluctance to report bullying, and failure to implement processes to deal with it, both point to a culture where bullying is tolerated. That the investigator doesn’t recognize the significance of these indicators represents a fundamental failure of the investigation.

Our fundamental belief is that the Investigation has failed to find a culture of bullying simply because it focused on individual complaints and ignored many of the overt connections between the distinct complainants, particularly the conduct of those in Mid to Senior Level Management positions and their handling of such complaints.

One of the ongoing pieces of work undertaken by the Victims of CSIRO group has been in the collection and collation of stories and the mapping of target areas and individuals within CSIRO who appear regularly on our radars, sometimes even 3, 4, 5 or more times.

With this background knowledge, we feel it to be highly questionable after 130 separate allegations that only two employees have been referred for misconduct proceedings.

We believe that without identifying, acknowledging and addressing the problems with CSIRO’s culture, the process improvements recommended by the investigator will not be effective in making CSIRO a workplace free from bullying and harassment.

 

 

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