Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time.
Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings.
So, what are the most important things you need to be aware of when conducting a workplace investigation?
understanding why an investigation is necessary
All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission.
Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable.
Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.
how can your human resources team support you?
If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation.
Your HR team can facilitate a successful investigation by:
- Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
- Providing a clear timeline and outline of processes;
- Ensuring that staff are aware of their rights to have support persons involved;
- At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.
fact finding vs formal investigation
Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis.
A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.
The need for procedural fairness
A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness – a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.
The key elements of procedural fairness include:
- Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
- Permitting a reasonable amount of time for the employee to respond to the allegations;
- Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
- Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
- Ensuring that decisions effecting the employee are based on evidence.
So what is involved in conducting a workplace investigation?
The key elements of an effective investigation include:
1. Planning the Investigation
- Adequate planning before the investigation starts, including considering any potential conflicts of interest;
- The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
- Preparing a list of interview questions for each witness;
- Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
- Notify all parties of there involvement, rights and obligations.
- Provide sufficient notice and make appropriate arrangements with all witnesses
- Conducting formal interviews objectively and sensitively, having regard to the circumstances;
- Checking that representation or support has been offered and outlining the investigation process and timeline;
- Obtaining as much detailed evidence as possible
3. Analysing and Weighing the Evidence
- Assessing the evidence with regard to reliability, consistency and credibility;
- Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
- Coming to a conclusion and making a finding, based on the evidence gathered.
4. Facilitating a Resolution
- This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling.
When to ask for help
The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive.
In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process.
This could include situations where:
- Serious allegations are made and there is a potential risk of criminal or civil litigation;
- Complaints are made against senior employees;
- A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally;
- There is a need for legal privilege to cover the circumstances;
- There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge.
If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations.