The Implication of Delays in Workplace Investigations

Eden Elliott - Wednesday, October 23, 2019

Conducting proper workplace investigations is a crucial component of effective business management. A failure to undertake an appropriate and timely investigation, can have significant consequences for the parties involved in the complaint, and potentially the legal outcomes for the business. An important aspect of any investigation is ensuring it occurs in a timely manner.


WHAT CAUSES DELAYS IN WORKPLACE INVESTIGATIONS? 

There are a number of factors which might affect the speed and timeliness of an investigation, including:

  • Lack of availability of witnesses. In circumstances where a witness is on leave or is absent from the workplace as a result of the alleged conduct, it can be difficult to interview them immediately. This may particularly be the case if the alleged incident occurred at a Christmas party, and those involved are off work for a number of weeks. 
  • Insufficient time and resources to devote to the investigation. There can be challenges in apportioning sufficient resources or dedicating enough time to swiftly deal with an investigation. This will be of particular concern when the process may have to be undertaken alongside the investigating staff member’s usual workload. This can particularly be the case in smaller businesses, or those organisations without a dedicated human resources department. 
  • Complexities of an investigation. In circumstances where an investigation is particularly complex or sensitive, there may not be anyone who is adequately qualified to undertake the investigation internally. A failure to swiftly appoint suitable external investigators in these circumstances, may result in undue delays in the investigative process. 
  • Size and scope of the investigation. If there are allegations of illegal or criminal conduct and the police need to be called in, there may simply be too much involved in the process for internal parties to conduct an investigation in a timely fashion. Additionally some investigations may have to be deferred until for example the police have determined if they are undertaking an investigation and if any criminal charges will be forthcoming.

DANGERS AND RISKS OF INVESTIGATION DELAYS 

Although it is highly unlikely that any investigator would intentionally delay the investigative process, all of these factors could well result in unintentional delays. These delays may not even be apparent during the early stages of the investigative process. However, the Fair Work Commission and other legal bodies have frequently criticised employers for taking too long to deal with investigations, which can ultimately be seen as a failure to afford due process; procedural fairness and natural justice. In practical terms, for example, if the investigation has been relied upon to support a disciplinary decision, such as a dismissal, it could potentially result in the disciplinary action being overturned and the employee being reinstated. This is particularly the case because a tribunal is unlikely to consider a dismissal to be an appropriate remedy, when the business was clearly comfortable enough with the affected staff member’s ongoing employment to delay finalising the investigation. A finding of wrongful dismissal by the Fair Work Commission can result in the organisation being required to pay compensation to the employee wrongfully dismissed. Another danger of delay is a reduction in the quality of evidence. Documentary or electronic evidence may be tampered with if it is not seized swiftly, or may be inadvertently deleted, destroyed or archived as part of normal business operations. Similarly, witness memories will weaken over time and details will become hazy and there can be cross contamination of evidence if witnesses have the opportunity to discuss their account of incidents over time. In situations where there are substantial delays, staff who would have been crucial to the investigation may have left their employment and be difficult or impossible to track down. One additional risk of delaying the investigative process, particularly in “serious” situations where summary dismissal or potentially police intervention might be warranted, is creating a perception in the workplace that the alleged conduct is not being taken seriously. As noted, when disciplinary action is ultimately undertaken it may be perceived as too little, too late. Alternatively, after delay has occurred the disciplinary action implemented may be deemed disproportionate given the initial investigative response.

APPOINTING EXTERNAL INVESTIGATORS 

Many of these risks can be avoided by the appointment of external investigators whose brief is to deal solely with the investigation. This means that they will be a dedicated full-time resources for the business, leaving incumbent staff to carry on with the usual requirements of their role. Further, external investigators can bring specialist expertise to the investigation process, which could ultimately play a key role in defending against any unfair dismissal claims and providing proper finality to disciplinary action.

An employer’s delay in investigating workplace misconduct can have significant negative implications, including penalties for the employer as a result of the delay. Engaging external investigators have help relieve strained internal resources and better place employers to discharge their obligations in an appropriate and timely manner. WISE provides independent and expert external investigation services to best manage workplace complaints.

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