Drafting Allegations the Right Way
Whenever allegations of adverse conduct arise in the workplace, the relevant investigator or manager must think carefully about the way in which these are to be put to the person involved. Preparation is the key here – wherever possible, take sufficient time to organise and crosscheck your information about the relevant events or conduct before any allegations are communicated in person or in writing. Depending upon the severity of claims, a meeting where allegations are orally presented can be appropriate in some cases. In more serious matters, a formal letter might be necessary. And on occasion, both approaches will be combined. In any event, the allegations that are put to a workplace participant must be phrased carefully, accurately and impartially.
The power of words
When allegations are raised in the workplace, emotions can run incredibly high. Rumours might snowball and accusations often fly – sometimes with unsavoury language and abuse included. The job of the workplace investigator – whether internal or external – is to unpack the emotional packaging of an allegation in order to locate the core issues. In drafting allegations, be sure to maintain a tone that is calm and disengaged from the situation.
Rather than ‘Tell us why on earth you called poor Jane an [expletive] on Monday for no apparent reason’, better drafting would be ‘an allegation has been raised that you spoke inappropriately to a co-worker on Monday. Would you please provide us with your response to this’.
With emotive words removed and a less confrontational tone employed, this draft takes a polite and professional approach. Emotional and factual red herrings can also lead to the investigation going off track. If the wrong questions are drafted and asked, the value of any resulting process or report can be negligible. Further, unless absolutely necessary for clarity, maintain confidentiality regarding the identity of others involved.
When drafting allegations for presentation to the alleged wrongdoer, it is vital that there be no sign of prejudgment on the part of the investigator. In our above example, the investigator’s communication of the allegation unfortunately resonates with prejudgment – it appears that ‘poor Jane’s’ version of events has been completely accepted as fact by the drafter. Procedural fairness in workplace investigations must be woven through the entire process, from receipt of the brief through to report finalisation.
Hopefully, workplace problems will be quickly resolved and all parties will amicably resume their activities as normal. But unfortunately history shows that the outcome of a workplace investigation can see issues escalate, even to the courtroom.
In such cases, how the alleged wrongdoer has been treated during investigations can impact upon the quality and even admissibility of evidence obtained. The Briginshaw principle establishes that the more serious the issue, the better the evidence must be in order to meet the balance of probabilities threshold. Where the questions and approaches used by an investigator are tainted by bias, a breach of natural justice will be seen to have occurred, and the resulting evidence might well be considered all but useless.
The drafting of allegations – a crucial time
Hopefully, by the time allegations are being drafted for presentation to the alleged wrongdoer, the workplace investigator has collected sufficient objective data to make the questions balanced and professional in their content. Each allegation should be dealt with separately and in plain language, to ensure that all relevant issues are aired and understood by the parties involved. Avoiding the rumour mill, maintaining discretion, and drafting with care will all work to assist the investigator in the development of well-communicated allegations.
In most cases, there will be specific policies and codes connected to the workplace. These should be requested and examined as part of the investigation. If it is alleged that one of these workplace codes has been breached by the act or behaviour in question, then this must be clearly stated in the allegation. The exact policy or code section should be noted and the connection between this and the alleged incident explained. Where the consequences of a breach are specified, this too should be drafted in plain language and put to the alleged wrongdoer.
Content retrieved from: http://www.wiseworkplace.com.au/_blog/WISE_Blog/post/drafting-allegations-the-right-way/.