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.