Tiptoeing Through the Minefield of Raising Allegations
There’s an awful lot at stake when conducting workplace investigations, and so they need to be handled with care and skill. It really is like tiptoeing through a minefield. One wrong move can cause an explosion of legal consequences that may harm your organisation. One key area of concern is how to raise allegations during an interview that forms part of a workplace investigation.
The need for procedural fairness
When an allegation has been made against an employee and an investigation is required, procedural fairness takes centre stage. This means that the investigation must be conducted in a fair, objective and timely manner and:
- All relevant parties must have the opportunity to have their say, especially the person against whom the allegations are made.
- The investigator must be impartial – they must not have reached any kind of conclusion about the allegations until the investigation has been completed.
- The investigation must be conducted as soon as possible after the allegations have been raised.
The employee under investigation must also be informed of the investigation process, any possible disciplinary action if the allegations are proved, and must have the opportunity to be represented and/or to seek legal advice.
Key elements to remember
The manner in which the allegations are put to the employee is critical to the procedural fairness of the investigation. If procedural fairness is found to be lacking at this stage, the entire investigation is put at risk. This could have serious consequences down the track if the employer finds themselves having to defend a claim of unfair termination of employment.
There are some key elements to remember when putting allegations to an employee.
1. The interviewer must make the employee aware that part of the interview process is that all allegations will be put to the employee. This can be done as part of the introductory matters covered at the beginning of the interview.
2. The allegations must be put to the employee in objective terms. That is, avoiding language that is emotional and judgmental. For example: “Fred said you punched him hard, and I could tell you knocked the daylights out of him because afterwards he didn’t know what was going on. What have you got to say for yourself?” This is subjective language because the interviewer has made a judgment about the incident. The question could be recast in an objective manner: “Fred said that you punched him. What can you tell me about that?” There is no judgment in this allegation and the question is open, inviting a detailed response from the interviewee.
3. Give as much detail as possible in the allegations for example date, time and location.
4. Cite any policies or standards that are breached by the alleged conduct.
5. If there is more than one allegation, put each allegation to the employee one at a time and invite the employee to respond to the allegation before moving on to the next.
Learning from past mistakes with case law
A leading case in this area is the Federal Court decision of Lohse v Arthur, in which the court found that the employee had not been informed of all the allegations against him, and that the independent workplace investigator prejudged the matter even before the allegations had been put to the employee. In this case, initially some allegations were put to the employee but after other witnesses were interviewed, more allegations arose and the investigator did not put them to the employee. The court held that procedural fairness was a fairly flexible concept, so it was only fair that if more allegations came to light, the employee ought to have an opportunity to respond.
Putting allegations to an employee must be done in a methodical and objective manner. It helps to have them written down so that they can be properly framed and ordered, especially if there is more than one allegation. The key point is to ensure that there is procedural fairness –that the employee has an opportunity to hear and respond to every single allegation and that the investigator does not make any determinations until the investigation is concluded.