If you are conducting either internal or external workplace investigations, it is crucial that you formulate a unique plan of action for each investigative process. No two workplace issues are the same, and a well-structured investigation plan will ensure that you account for the many variables that can arise. Almost certainly, you will be dealing with complex fact scenarios and high emotions within the workplace. Without a well-planned workplace investigation process, such factors can lead to distractions and pitfalls that have the potential to take the investigation off-track. The key factors to build into your investigation plan include:
- Maintaining procedural fairness during the workplace investigation
- Planning how to elicit the best evidence
- Ensuring full coverage of pertinent issues
A good workplace investigation plan guides the process – yet retains sufficient flexibility to accommodate unforeseen developments.
Maintaining procedural fairness
Legally, procedural fairness is not as simple as ‘being fair’ in our dealings. The very structure of a procedure such as a workplace investigation must also appear fair to an objective bystander. For example, a well-meaning internal investigator might dissuade a worker from bringing a support person because ‘this is just a friendly chat’ about alleged misconduct. It might well transpire that any evidence gathered in this process is tainted by a lack of procedural fairness. A cogent plan for how and when staff and management will be engaged is crucial. If the size or nature of the organisation is such that such fairness cannot be guaranteed, engagement of an external investigator might well be the prudent option. For external investigators, assessing any potential power dynamics, access issues or managerial support for the investigation can all enable the investigator to create a robust and procedurally fair workplace investigation plan, suitable for individual workplaces.
Plan for the best evidence
In workplace investigations, it pays to keep in mind that the best reports and recommendations are built upon sound evidence. The Briginshaw principle reminds us that although there is only one civil standard of proof – the balance of probabilities – the seriousness of the allegations and possible consequences in a particular matter will affect whether available evidence is sufficiently probative to meet that standard. In the heat of the moment in a workplace investigation, it can certainly be difficult to remember your rules of evidence, with a view to possible future actions! Unfortunately with workplace disputes often creating a veritable minefield of evidentiary blunders such as hearsay (‘I heard from Henry that Sheila saw Jane take the printer’), it is best to plan for the location and elicitation of the most probative available evidence in the circumstances. In your investigation plan it helps to go over any written brief or preliminary notes you might have on the physical and social characteristics of the workplace, in order to timetable your evidence-gathering strategy. Are original documents onsite, are private interview rooms available, are any key staff members on leave, do managers encourage support people for interviewees? With a little forward planning, the workplace investigation can extract strong and compelling evidence.
Ensure full coverage of pertinent issues
A workplace investigation should proceed with clear and detailed terms of reference (TOR). The investigator must be clearly informed as to the scope and scale of the investigation, in order to be able to create an investigation plan that most closely meets these parameters. Within that plan, it will be necessary to identify the relevant aspects of employment law or related legislation, in order to gauge the most pressing issues to investigate relevant to the TOR. For example, recent case law regarding exclusionary provisions within anti-discrimination legislation might affect the types of relevant issues to best explore in a given workplace. As well as planning for legal and factual issue coverage, a sound investigation plan will ensure that the workplace investigation does not head off on a tangent. It can take strong professional aptitude to compassionately hear a story, while also limiting interviews to the pertinent issues.
In order to be fair, to collect good evidence, and to cover all of the pertinent issues, a detailed workplace investigation plan is a must-have for all workplace investigators.
