Outsourcing or In-House Investigations?

Vince Scopelliti - Thursday, October 03, 2019

For many businesses, one of the critical HR questions is whether investigations into alleged employee misconduct or misbehaviour should be outsourced or conducted in-house.

Depending on the nature of the business and the complaint, it may not always be appropriate or cost-effective for investigations to be referred externally.

However, in other circumstances, particularly when the allegations involve potential criminal conduct or there is an actual or perceived conflict, outsourcing may be the best option.

We examine the different circumstances in which investigations might best be outsourced or kept in-house.

outsourcing vs internal 

The key benefit of conducting workplace investigations internally is the ability to potentially deal with a matter swiftly and cost-effectively. The obvious reason here is that staff tasked with conducting an internal investigation, already have an understanding of the internal processes and procedures of the business. Although time away from normal duties is likely to be required, there is no additional cost associated with tasking existing staff to conduct an internal investigation.

On the other hand, depending on the nature of the allegation, existing staff may be lacking in capacity or capability to properly conduct the investigation. This is particularly likely to be the case if the allegations relate to potential criminal conduct which requires police involvement.

In addition, if the allegations are sensitive or have been made against a staff member who would ordinarily be involved in conducting the investigation, it may not be appropriate for the investigation to occur internally.

Whether the investigation is outsourced or conducted internally, it is essential that there are clear delineations as to who will be conducting the investigation. Further, the ultimate investigator must be provided with the applicable investigation policy and procedures which must be followed.

risks of handling an investigation in-house

As noted, there are numerous potential risks of handling an investigation in-house. Chief amongst these is the fact that the internal staff may lack the necessary skills or training to adequately understand the complex nature of the investigation. This could have significant ramifications if there are demonstrable gaps in the process, as this may ultimately invalidate the findings and any final decision which is made.

Having staff without the requisite experience or skills, conducting an investigation may also mean a failure to comply with legal obligations. In the event that the investigatory process results in termination of employment, litigation or other legal action, any failure to duly comply with all the legal and regulatory requirements, may potentially result in an adverse decision for the company.

The possible apprehension of bias in an internal investigation is significant, particularly if the employees who are conducting the investigation have a close personal or professional relationship with the complainant, the respondent or any of the witnesses. In a small company, or in a situation where a member in a senior leadership position has allegations levelled against them, this potential apprehension of bias is even greater.

This could also result in complaints of pre-determined outcomes, where staff involved in the process may argue that the investigation was not conducted in accordance with the principles of procedural fairness. Any relationship (whether positive or negative) between the investigatory staff and the parties involved in the investigation is likely to come under significant scrutiny. This may open up the investigatory team to suggestions that the investigation was not conducted impartially or fairly.

Factors for considering whether to outsource 

Impartiality and transparency in the investigative process are always crucial considerations. In situations where there are especially sensitive allegations or the staff involved are likely to resort to post-investigatory litigation, any potential concerns regarding failures in process or impartiality can be addressed by outsourcing the entire investigation.

Similarly, if time is of the essence (particularly when staff have been temporarily stood down and it is important that the investigation process is concluded in an expeditious fashion) outsourcing the investigation may be the preferable outcome. 

This is because external investigators are able to devote themselves completely to the investigation process, while existing employees will most likely need to continue on with their day-to-day work.

the benefits of outsourcing

Although there is a cost associated with the outsourcing of an investigation, there are added benefits. Investigators with specialist expertise are able to deal with complex matters, and are best placed to provide reports which are more likely to be relied upon by the Fair Work Commission.

The majority of contemporary workplace investigations come with their own set of challenges and complexities. If you do not have the time or resources to conduct an investigation or you require an experienced investigator, WISE offers both supported and full service investigations to best assist.  

Elder Abuse in Care

Vince Scopelliti - Wednesday, September 18, 2019

The most vulnerable members of our society are generally those with disabilities, the very young and the elderly. People who are vulnerable are at greater risk of being abused or otherwise mistreated, especially in residential care facilities. This is currently being made distressingly clear at the aged care Royal Commission. 

We discuss what elder abuse in care looks like, how it can occur and what factors can make an impact on the investigation of alleged abuse.

WHAt is elder abuse? 

"Elder abuse" is an umbrella term, which encompasses a number of forms of abuse, including but not limited to:

  • Physical abuse. This means that a person, often a carer or loved one, is deliberately inflicting physical injury or pain on an elderly person. Importantly, this also includes the use of physical and chemical restraints.
  • Psychological/emotional abuse. It is difficult to define exactly what constitutes emotional abuse. However, examples include making threats or intimidation, humiliating the elderly patient, failing to provide access to services (such as restricting access to clean clothing or washing facilities) or telling the patient that they have dementia when they don't.
  • Social abuse. This includes restricting a patient the right to see or interact with their family or loved ones.
  • Financial abuse. This is one of the most common types of elder abuse. It involves mismanaging, improperly using or otherwise dealing dishonestly with an older person's financial assets. Examples include forcing the elderly patient to provide bank details so that the carer can use them for their own purposes. Another example is forcing the patient to sign over money or goods in their will.
  • Sexual abuse. This is dealing with an elderly person in a sexual way without consent. It ranges from speaking about sexual activities to inappropriate sexual contact.
  • Neglect. Another very common type of elder abuse, this involves withholding basic human rights such as food, shelter, hygiene or medical assistance from the patient.
Like many other types of abuse, elder abuse is significantly under-reported. This is because of shame, fear of reprisal, or in certain circumstances the elderly patient not understanding that they are being abused. However, according to a report published by the Australian Institute of Family Studies, up to 14% of older Australians may be subjected to elder abuse.

In late 2018, a Royal Commission into Aged Care Quality and Safety was announced. Amongst its terms of reference is the specific requirement to consider poor care, including "mistreatment and all forms of abuse". An interim report commenting on initial findings is due to be published by 31 October 2019.

WHAt are the signs of elder abuse? 

Determining whether an elderly Australian in care is the victim of abuse can be extremely difficult. However, some key factors which can cause a suspicion of abuse include:

  • Sudden personality changes such as unusual anger, anxiety, fear or depression;
  • Obvious poor personal hygiene;
  • Changes in eating and sleeping patterns;
  • Changes in social activity and interaction such as becoming non-verbal, becoming isolated and lack of motivation;
  • A failure for simple medical conditions to clear up as expected (indicating maltreatment);
  • Inexplicable disappearance of money or possessions; and
  • Visible signs of injury or trauma.

Who is most at risk? 

Although potentially all older Australian in residential care facilities are at risk, those with mental health issues are at greater risk of being abused. This is because the victim may be confused themselves, about whether the abuse is even occurring. Further, even if the victim does make a complaint, those with organic brain issues and diseases or significant mental health problems may not be believed.

Challenges of an investigation 

Investigations into elder abuse are challenging due to a number of different factors. These include low reporting rates and difficulty in obtaining accurate reporting and evidence about the specific details of abuse. There are unlikely to be third party witnesses because abuse can and often does, occur in the victim's private room. Victims may also be poor witnesses due to difficulties with memory and recall or other mental health illnesses and conditions.

The Royal Commission into Aged Care Quality and Safety has revealed how the treatment of the elderly in aged care facilities can go unnoticed. If you require assistance into the investigation of elderly abuse complaints in a care setting, contact WISE to discuss your needs, and how we can help. Alternatively, we provide Investigating Abuse in Care training.

The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.

Making Findings in Workplace Investigations

Vince Scopelliti - Wednesday, August 07, 2019

When a workplace investigation is coming to an end, one task can seem deceptively simple - making findings. 

It might seem that because all the information is now available, the investigator can surely just state 'the obvious' in their report. Yet as with most tasks in the investigative process, quality outcomes require much greater consideration of relevant material. Before findings can be made, a thorough analysis of the evidence needs to occur. Findings will need to link clearly with this analysis - and all evidence must be considered.

Issues around organisational policies, plus the correct weight to be given to particular pieces of evidence, are further pieces in the puzzle of investigative findings that need to be addressed.  

analysing the evidence 

Workplace investigators are required to carefully and objectively analyse all available evidence. This includes the evidence that both supports and rebuts a likely finding. For example, if three workers said that it happened but one states that they are not sure, all four pieces of evidence must be analysed and discussed with equal consideration.

It is certainly unacceptable to simply discard a piece of evidence because it does not fit with the majority. As well as not being transparent, experienced investigators know that a small piece of contrary evidence might actually support a bigger finding at another point of the process. 

The analysis of all evidence will also incorporate the consideration of the weight to be attributed to each piece of evidence. This requires an investigator to consider for example the probative weight and value attributed to direct evidence in comparison to hearsay evidence. 

Findings need to be clear and defensible; links from evidence, to analysis, to findings and back again must be logical and well-explained. Essentially, the investigator is asking whether or not the evidence supports, on the balance of probabilities, the findings that are eventually made.  

following the organisation's policies  

As part of making accurate and defensible findings, investigators need to consider and understand the organisation's policies. Logically, in order to make a finding whether or not inappropriate behaviour has occurred, the first step will be an examination of the policy documents. 

Has the conduct in question as alleged breached a policy - and were the policies and procedures clearly understood by all concerned? General state and commonwealth laws will of course also play a part in findings, and in combination with organisational policies, will assist the investigator to mark the perimeters of acceptable behaviour.

weighing the evidence

Making findings can sometimes feel like the completion of a rather large jigsaw puzzle. Evidence is examined and analysed, with pieces being compared to one another for similarities and differences. Investigators need to consider the relevance of each piece of evidence to the allegations and overall investigation, giving more or less weight to some pieces of evidence over others for any number of reasons. 

Sometimes more weight will be given to a piece of evidence because it is for example, clearer, more compelling or better corroborated than other evidence.

remember briginshaw 

The care with which evidence is examined and weighed can have significant consequences for any potential future proceedings.

For serious allegations, employers will need to be able to rely on high-quality evidence from the initial investigation, in order to meet the evidentiary threshold. The standard of proof in all civil matters is 'the balance of probabilities', requiring that parties meet this standard via the evidence that can be marshalled in their favour. 

In matters where serious allegations have been made, the courts - beginning with Briginshaw v Briginshaw - have indicated that the standard of proof itself remains the same in all cases, but in serious matters where the finding is likely to produce grave consequences, the evidence should be of a particularly high probative value in order to meet the mark.

High-quality OUTCOMES

It is important for employers and their investigators to ensure that findings of workplace investigations can withstand the highest level of scrutiny and appeal. Given the complexities surrounding current workplace investigations, a high level of skill is required to ensure report findings are both sound and defensible. To ensure that you are assessing evidence effectively, WISE provides training in conducting workplace investigations

Writing an Investigation Report

Vince Scopelliti - Wednesday, July 31, 2019

To say that a workplace investigation report is an important document is certainly something of an understatement. Following the investigation, the report will be relied upon for all manner of significant organisational decisions, tasks and action. 

As a result, it is essential that workplace investigators create a professional, transparent and unbiased document.

ONE REPORT, MANY PURPOSES

When the investigation is complete and the report is handed to the employer, this document will provide a focal point for immediate action.

Employers will rely upon the report for appropriate disciplinary action, and as a means of establishing compliance where required. The investigation report will often form the basis of policy changes and will need to be clear and persuasive in this regard. 

Perhaps most importantly, the report will underpin the defence of any future claims. How the investigation has been carried out and the weight to be given to findings will be on display now and into the future. 

A sound methodology 

It is insufficient to simply cobble together some aspects of the investigation and present a pleasant-looking report. The report should be transparent; provide a clear step-by-step explanation of the investigation; state the allegations; make reference to the information and documents obtained and considered and the process of analysing and weighting the evidence - among many other elements. 

Readers will be looking to see how the interview process was carried out, if parties were treated with equal respect, plus whether findings were made with objectivity and on the evidence available.

The report should clearly reflect the author's thinking regarding whether allegations are substantiated, unsubstantiated or if a lack of evidence exists. 

A strong methodology will ensure the highest quality of evidence obtained - which can be of great significance when serious claims have been made, as explained in the Briginshaw v Briginshaw case. 

the right report format 

There is a tried-and-true approach to setting out a professional workplace investigation report. The first item is the executive summary which - as it sounds - provides a high-level overview of the process and outcomes. The methodology of the investigation is explained, demonstrating an underpinning coherence to the investigation process. Importantly, the civil standard of proof - 'on the balance of probabilities' - is defined and explained to ensure there is an understanding across a broad audience. The allegations, particulars and evidence are then set out in a professional and objective manner. 

A most challenging aspect of the report is describing and explaining the findings made. In essence, the investigator is explaining why one person's version of events or piece of evidence is to be preferred over another. Again, this must be done thoroughly and with transparency. 

The investigator then sets out any other issues that have arisen through the investigation, such as other issues identified in the workplace, the illness of a hoped-for witness or difficulties accessing documents, just as examples. Finally, the report sets out the final findings and where requested or appropriate makes recommendations in a clear and unbiased manner.

top tips for report writing 

When approaching the task of writing a report, a useful phrase is 'know your audience'. In most cases it will be the employer who has sole access to the investigation report. Yet the reality remains that a court could examine the report document at any future stage. 

In any event, aim to be short and concise at all times with clear and unbiased descriptions. Sometimes the investigation report will need to reflect the technical realities of the workplace, which might include convoluted descriptions or layered processes. 

In these circumstances it can be a good idea to create a glossary of terms or a similar explanatory system that allows for inclusion of and explanation of complex information, while not interrupting the flow of the document. Keep to a logical sequence. Having done the good work of a high-quality investigation, it can be all undermined if the employer is left with a report that is confusing or unhelpful. 

In writing up findings, it is essential that investigators 'follow the evidence'. For example, if evidence A plus evidence B led you to finding W then clearly state this. You cannot simply 'find W' without explaining your reasoning.

The task of pulling together all relevant material into a cohesive report at the conclusion of an investigation can be a challenging prospect. Utilising an external investigator can ensure a report is written in an unbiased, objective and timely manner. To appoint an expert to your organisation's investigation, contact WISE.

How to Write Letters of Notification and Allegation

Vince Scopelliti - Wednesday, July 17, 2019

During the process of conducting workplace investigations, it is generally necessary to prepare letters of notification, and later, letters of allegation. 

We take a look at the difference between the two, and provide some tips on how to prepare these important documents. 

notifying the parties involved

The letter of notification serves as confirmation that an investigation is going to be launched. These formal documents are sent to the respondent, the complainant and any witnesses involved in the investigation. 

It communicates how the process of the investigation will occur, who will be conducting it, as well as detailing the involvement required from the individuals.

For the complainant, this will generally mean the formalisation of their complaint and participation in an interview. A respondent will also need to undergo a formal interview and be advised of their rights, such as having a support person attend. 

A letter of notification should ideally be prepared and sent as soon as an investigation plan has been finalised.

the elements of a letter of notification

When writing a letter of notification, it is important that it contains specific details including:

  • What exactly is being investigated.
  • Who is conducting the investigation. It is important to identify which members of the organisation will be involved.
  • A formal request for interview. 
  • The offer of a support person to all parties who will be interviewed.
  • A reminder for all parties involved to maintain confidentiality around the process, and the potential consequences of a failure to do so. 

Writing letters of allegation

Although similar to a letter of notification, a letter of allegation contains more detailed information. Instead of being addressed to all the parties involved, only the respondent will receive a letter of allegation. 

The letter should clearly set out: 

  • Details and particulars of the allegations. This information should be as specific as possible, to give the respondent a genuine opportunity to respond to the allegations. 
  • A request for supporting documents. The respondent should be advised of the opportunity to provide any information or evidence supporting their position. 
  • A formal request for interview. Although this has already been identified in the letter of notification, the letter of allegation reiterates the requirement for participation in the interview process. The letter should also reiterate the right of the respondent to have a support person involved in the process. 
  • The letter is required to stipulate if there is a finding of misconduct, what disciplinary actions may be considered and imposed. 
  • A further reminder of the need to maintain confidentiality.  

A letter of allegation should be sent after the complainant has been formally interviewed. This means that detailed allegations can be put to the respondent. 

Do's and do not's when preparing letters of allegations

When preparing a letter of allegations, it is important that procedural fairness is maintained. The respondent should have only clear allegations put to them, supported with evidence where available of the conduct or behaviour alleged. 

The letter of allegation should avoid making any conclusions about the investigation. 

Importantly, it should also demonstrate that the investigators and decisions-makers involved are objective. 

Communication with the parties to a workplace investigation is critical in ensuring a fair and considered approach is taken. Failing to comply with the steps of procedural fairness can impact on the soundness of investigation outcomes, findings and recommendations and leave employers open to decisions being overturned. 

WISE Workplace provides training in investigating workplace misconduct. This training is aimed at providing practical skills that enable you to draft procedurally fair and legally compliant letters of notification and allegations.   

Creating an Action Plan: ToR and External Investigators

Vince Scopelliti - Wednesday, July 10, 2019

When conducting a workplace investigation, it is crucial to be able to demonstrate that appropriate procedures have been followed. This is essential in defending any subsequent action that may be taken. 

It can be helpful for employers to create an action plan utilising Terms of Reference (ToR) and the services of an external investigator to keep the investigation process on track. 

3 Key principles for drafting the tor

The ToR is a framework that provides structure and a plan for the investigation. Without it, an investigation runs the risk of becoming too broad or unwieldy. There are three basic guiding principles for employers to keep in mind when drafting the ToR. 

1. Reason

This sets out why an investigation is necessary, which people are anticipated to be involved (at least the complainant and respondent) and the key questions which need to be answered as a result of the investigation. 

2. Remit

The remit section provides the parameters for the investigator's involvement and identifies what the investigator is supposed to do. 

In certain circumstances, the investigator will be required simply to engage in a fact-finding mission, in order to collate information for the employer to make a final determination or outcome. Alternatively, an investigator may be tasked with dispute resolution, or even providing disciplinary recommendations. 

This section can also identify what, if anything, is 'off limits'. For example, an investigator may be prohibited from having access to commercially sensitive information. 

However, it's also important to note that an investigator will be hampered if there are too many restrictions placed on them. 

3. Report

This practical aspect of the ToR identifies in what format the final report is to be provided. The due date and expected distribution list should also be noted in the ToR.

In order to maximise the success of the investigation, the TOR should be drafted as soon as possible after a decision has been made to investigate a complaint.

Why appoint an external investigator? 

Even the most experienced HR professional may struggle to undertake a completely unbiased investigation. Cross allegations and accusations of unfairness can cloud issues and throw the investigation off-track. 

By outsourcing investigations of this nature, employers can prevent any perceived or actual apprehension of bias. External investigators are impartial, and in some cases, better able to conduct an objective investigation than someone internal. 

An external investigator is particularly helpful in circumstances where: 

  • The organisation requiring an investigator is small and all staff are well known to each other.
  • The allegations requiring investigation are particularly egregious, serious or even traumatic.
  • There is potential for criminal or civil proceedings to arise out of the investigation.
  • Senior management or HR staff are directly involved in the complaint, whether as respondents or complainants. 

External investigators also have a level of experience and expertise that can be difficult to match in-house. Even with clear ToR, an internal investigator may find investigating the allegation and writing the final report challenging. 

Appointing an external investigator can also save time. Often, the person chosen to head an investigation internally, will also still have their core duties to perform.

Engaging an external investigator

When you engage an external investigator, it's a good idea to write a letter of appointment/engagement. This should set out clear instructions and confirm the scope of the investigator's role. The ToR should also be included. 

If you require assistance in defining the scope of your investigation, or would like to engage an expert to tackle workplace matters requiring investigation, our investigators are committed to dealing with complaints independently, providing expeditious, thorough investigations with integrity. Visit our website or contact WISE to find out more. 

Receiving Workplace Complaints

Vince Scopelliti - Wednesday, July 03, 2019

Employers should be well aware of the legal and associated requirements that come into play when someone in the workplace raises their hand with a grievance. 

Complaints about unacceptable and/or inappropriate behaviour can arise from any work area, and in regard to a wide variety of issues. Grievance handling needs to be fair and consistent - yet with each situation being approached on an individual basis. 

We take a look at creating a sound process for the receipt of complaints, which reflects and follows existing policies and procedures.

types of complaints

Complaints can be made in relation to all manner of behaviours. Examples include allegations of bullying, harassment and sexual harassment and even - in workplaces involving children - child abuse. 

Harassment itself covers a wide range of behaviours that could occur on or offsite, including those via digital communication such as email, social media platforms and messaging. 

Employers should note that alleged perpetrators can be colleagues, managers and even occasionally worksite personnel such as contractors.

steps to take when receiving a complaint 

For employers it can sometimes be difficult to know just where to begin once a complaint has been received. At a basic level, all internal procedures and policies should be carefully followed to ensure fairness and consistency. 

A clear and well-understood complaints process needs to be in place prior to the (inevitable) receipt of a workplace complaint. All those involved should receive even-handed treatment, with any decisions being made in a defined and measured way. 

In some instances, the alleged behaviour will constitute reportable conduct, with an employer obliged to notify a specified body about the allegation under a compulsory reporting regime. 

As society comes to grips with some of the behaviours that can occur in relation to our most vulnerable individuals, more stringent reporting requirements for employers continue to be developed. For example, the National Disability Insurance Scheme has been designed to ensure that employers take timely and objective steps upon receipt of any relevant complaint

key principles when responding to complaints 

In the case of complaints, it pays to ask some basic questions about the situations such as:

  • Is the behaviour unacceptable or not?
  • Does the situation warrant measures to minimise the risk of ongoing harm?
  • Do I have a clear understanding of the issues?
  • Do I need additional information or assistance?
  • Can the matter be safely resolved between the parties or at a team level?
  • Should the matter be progressed to an investigation? 

A key issue is the manner in which the people involved in a complaint are treated and how any required information is communicated.

At all times, employers should take the matter seriously, refrain from victimising any individual and ensure the same treatment for all personnel involved.

Confidentiality should be maintained at all times and support mechanisms put in place for what is, inevitably, a difficult time in the workplace. 

Taking the right approach

It is vital for employers to be aware of their legal obligations and best practice when it comes to addressing workplace complaints. Complaint handling can become quite complex depending on the type of complaints and the number of people involved. 

WISE provides professional and up-to-date training on conducting workplace investigations. Our courses are specifically designed for those engaged in the investigation of workplace misconduct, including bullying and harassment. Please call us if you would like expert assistance around complaints processing and the best way to ensure fairness if - and when - a workplace complaint is received.  In addition keep an eye out over the next seven weeks, as we will be publishing a series of articles, in which we examine the workplace investigation process. 

Uncovering the Steps of an Effective Investigation Process

Vince Scopelliti - Wednesday, June 26, 2019

For many employers, a workplace investigation process can appear quite challenging to navigate. Questions around the actual subject of the investigation, and who is best qualified to carry out this important task, can immediately arise.

The investigation process itself is characterised by a number of important processes that are designed to reduce the risk of negative perceptions and/or potential legal pitfalls at a later date.

We outline proven strategies for understanding and instigating a high-quality investigation process.

By using these, employers have the capability to implement a fair, thorough and professional investigation, from initial complaint management through to the presentation of an accurate and accessible report. 

Following a clear path

When a complaint arises in the workplace, employers might be tempted to launch straight into the fray and 'get to the bottom of things'. Yet such a tactic can be problematic on a number of levels.

First, compliance with existing policies and procedures concerning investigations is crucial, to ensure procedural fairness throughout the process. It can take time to confer with HR, re-read existing internal guides and to make a plan to investigate the complaint in an appropriate manner. 

Each workplace, employee and complaint is unique and employers are reminded to carefully assess their policy compliance obligations before starting down the investigative path.

Secondly, it is vital to ensure that procedural fairness is built into the entire investigative process. The way in which complaints are dealt with must be transparent and fair for all concerned. Results from an investigation process should be reliable. This is derived from robust interview techniques and document searches that are fair and transparent in nature.

A sound investigative process will also ensure the finality of outcomes, leaving no room for doubt. Complainants, witnesses and employers understandably desire a process where finality and clarity are achieved. 

A step-by-step investigative process

Let's take a look at the key steps of an effective investigation. You can find out more about each of these steps in the investigation process in our upcoming series of in-depth articles.

1. Receiving a complaint

It can be confronting for employers when required to deal with workplace complaints. Bullying, harassment, fraud, sexual harassment and child abuse are just some of the serious issues that can arise in workplace contexts. It is crucial that complaints are taken seriously and that actions are carried out in a measured fashion.

Employers should ensure that internal policies and procedures regarding the receipt of complaints are closely followed. The receipt of complaints involving what is known as 'reportable conduct' will additionally activate compulsory reporting regimes. This means that for certain types of alleged misconduct, employers are legally required to report to prescribed external bodies.

2. Establishing terms of reference

At the beginning of the investigative process, the investigator works with the client to define and limit the Terms of Reference (ToR). It is not appropriate to engage in broad-sweeping analyses of all circumstances that might possibly surround the complaint. The investigator and client work with the initial information, to confine the ToR to the essence of the complaint(s) made. An investigation can become too unwieldy if the boundaries of the ToR are vague, hazy or too broad. 

Perhaps most importantly, unclear ToRs can lead to accusations of uncertainty and unfairness for those parties affected. It can make sense to engage an external investigator in those circumstances where complaints, cross allegations and emotions are heightened within an organisation. Often, an objective outside person can provide the clarity needed to get the ToR right.

3. Letters of notification and allegation

Once thorough scoping has taken place, letters of notification need to be made to respondent, complainant and all relevant witnesses. This provides an important opportunity to communicate the nature of the investigation process, as well as the individual's involvement. The letter of notification describes what is being investigated; who the investigator is; the right to request an interview support person; as well as the need for all parties involved in the investigation to maintain confidentiality. 

With a slightly different purpose, the letter of allegations provides a clear description of the complaints that have been made against the respondent. This important piece of correspondence includes the particulars of allegations, any request for supporting documents, pending interview details, the option of having a support person present, as well as the importance of maintaining confidentiality at all times. All correspondence within the investigation should be clear, comprehensive and accessible by the relevant parties.

4. Interviewing techniques

When conducting an interview, the investigator must constantly consider how to maintain transparency and objectivity at all times. Yet, it is also necessary to build a suitable level of rapport with the complainant, the respondent and with witnesses.

One useful tool for running the interview process appropriately is the adoption of an interview framework.

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. With a useful acronym, the PEACE model helps the interviewer to step consistently through the process.

PLANNING: Examine what planning and preparation needs to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed.

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.

Active listening is also a useful tool for interviewers conducting a workplace investigation. This involves giving close and undivided attention to the interviewee, plus being able to paraphrase accurately what has been said. Wherever possible 'open' questions should be asked - those that allow the person to respond in a narrative manner, based upon their recollections. Examples include 'How would you describe the work relationship between Fred and Frank?'.

5. Report writing

One of the most important aspects of a workplace investigation is the final written report. It is relied upon for ensuring compliance with recommendations, detailing any disciplinary actions and can form a defence against future claims. In accordance with Briginshaw, findings made with objectivity and upon the evidence available, are more likely to meet the evidentiary threshold in serious matters. Investigators should clearly determine if allegations are substantiated, unsubstantiated or if evidence is lacking. Being concise, following a logical sequence and ensuring that 'findings follow the evidence' are all important ways of creating a professional, sound final report.

6. Making findings

One of the last and most crucial tasks for the investigator is making findings. It can seem deceptively simple. This evidence was produced; this is the logical finding. Yet there is more to the equation than this.

It is important to present evidence contrary to your findings and to explain why this was less compelling than the preferred evidence. A clear and objective explanation is needed and can certainly be difficult to word at times. Findings should tie back to the analysis and should define which allegations have or have not been substantiated.

An indication of the weighting applied will be necessary, as will the relevance of the evidence in the context of the particular allegations. It should also be clear in the document that reasoning has taken place in the context of the organisation's policies - including whether or not one or more has been breached.

7. The role of the Fair Work Commission

The Fair Work Commission (FWC) provides an opportunity for workers and employers to take their grievances beyond the level of the workplace. The FWC considers an array of work-related issues every day, delivering determinations on matters such as bullying, employment award issues and unfair dismissal claims. Unlike courts, tribunal-type bodies such as the FWC are built to deliver fair, fast and accessible justice.

Yet it is important to remember that all matters will be dealt with in a robust and objective manner according to law. In keeping with the rule of evidence, the FWC will examine final workplace reports closely to determine if sound analysis and findings have been made; for this reason, a defensible final report is essential.

Obtaining professional guidance 

Getting the process of an investigation right from start to finish is critical for the effective and lasting resolution of workplace grievances.

With over 25 years' experience in investigating and managing misconduct, WISE has put together a toolkit with 20 high quality templates and an investigation guide for even the most inexperienced manager to follow.

Sharing Information After a Workplace Investigation

Vince Scopelliti - Wednesday, May 08, 2019

For employers, the completion of a workplace investigation can feel like the end of a marathon. The relevant issues have been aired and discussed, a report delivered and decisions made. However, it is also important to effectively share relevant information with affected parties and the broader organisation as the investigation process draws to a close. 

It is likely that employees and other stakeholders affected by the workplace investigation will need feedback in order to comfortably move on from this often unsettling time in the workplace. 

Before commencing post-investigation communication, management should consider issues of confidentiality, the rights of all the affected parties and the best ways to share information across the broader organisation.

Providing confidence in the outcome

The period after a workplace investigation can be an excellent opportunity for both staff and management to make changes and move forward confidently from a difficult situation. 

Providing key stakeholders a broad summary of the investigative findings and a plan for improvement often fosters a sense of understanding and closure. For affected parties, a clear and concise summary of individual outcomes and actions will of course be appropriate and necessary. At every level, the goal is to communicate honestly and with a positive eye to the future.

keeping affected parties informed

Management should meet individually with those affected by the findings of the investigation. The process can be uncomfortable for those who are personally involved. There will often be a sense of apprehension, and in some cases, a curiosity about the decision-making process. 

Affected parties deserve a chance to have the outcomes and the decision-making process explained on a one-on-one basis. However, it is also important to ensure that only the appropriate amount of information regarding the investigation is shared. 

In particular, confidentiality will be necessary in relation to the statements of witnesses and other affected parties. Sensitive information, claims and descriptions have the potential to cause unnecessary harm and can jeopardise the integrity of the final report. 

A copy of the full report should not be released to those involved with the investigation. This document is accessible only by the employer at this stage. The affected parties to an investigation have a legal entitlement to be informed in writing of the findings, conclusions, recommendations and the basis of those findings. The parties therefore could be provided with a written summary of the full report, including the allegations and findings, as they relate to each individual party. 

A witness is not an affected party and should not be provided with the report or a summary unless they are also an affected party, such as a complainant or respondent. 

Communicating across the organisation

Confidentiality is of course of paramount importance. Neither witnesses nor staff want to be fed vague explanations about the outcomes of the investigations. A workplace investigation will commonly reveal deficiencies in policies and procedures, and/or the state of organisational culture. In clearly explaining the outcomes of the investigation, management can allay fears, dampen any gossip and provide a positive statement about any changes to come following the conclusion of an investigation. 

The investigation might well have been an unsettling time within the organisation. Post-investigation communication can be a valuable means of restoring confidence and providing a clear vision for future activities. For example, policies might need to be updated or individual procedures changed for the better. Positive communication about findings and the actions to be taken will help to restore staff equilibrium.

implementing change post workplace investigation 

It can be a challenge for management to know exactly where to start when explaining and implementing decisions following an investigation. 

At WISE Workplace we have significant experience with workplace investigations and helping to manage the aftermath of these processes. Should you require assistance in conducting workplace investigations and communicating outcomes, contact WISE today.