Complaints or accusations of misconduct in the workplace aren’t always clear-cut.
While your well-considered organisational policies and code of conduct may specify the appropriate disciplinary action to take in a range of cases, choosing the best course of action when it’s difficult to distinguish fact from fiction is easier said than done.
Where an allegation of misconduct has been made but can’t be easily proven, a workplace investigation can uncover factual information to confirm or refute those claims.
If you need to conduct an investigation in your workplace, you may be wondering if you can manage it yourself in-house or if you’ll need to engage an external investigator. The short answer is yes, you can conduct a workplace investigation on your own—however, there are a few risks to doing it yourself.
Here we discuss some of the factors you need to consider before commencing a workplace investigation without the services of an expert independent investigator.
The nature of the allegations
It’s important to consider the seriousness of the allegations being made.
While any allegation of misconduct needs to be taken seriously, some are more serious than others. A simple way to determine how serious the allegations are is to consider:
- if any laws may have been broken, and
- the severity of the disciplinary action that may be taken in response to the claims.
For minor misdemeanours where it isn’t apparent that any laws have been broken or the possible disciplinary action that could be taken in response would only be minimal, you may be able to manage the investigation yourself.
Where the allegations are more serious in nature and could result in suspension, dismissal or criminal proceedings, it’s integral that the investigation is rigorous enough to withstand external review if the findings were to ever be disputed.
The skill set of the investigator
To conduct a formal investigation effectively, the investigator will require certain skills.
An investigation typically includes conducting in-person interviews; collecting forensic evidence such as emails, text messages, photographs, computer records, accounting records, timesheets and any other relevant material; documenting the process used and the evidence obtained throughout the investigation; and making a judgement about how well the claims can or can not be substantiated based on the balance of probabilities.
Every element of the investigation needs to be conducted thoroughly and in a way that is procedurally fair to each party involved. If there is any question about the impartiality, transparency or legitimacy of the investigation, any decisions made based on the findings from the investigation may be open to appeal.
To conduct an investigation effectively, the investigator will need:
- sound knowledge of the Australian legal system and investigative processes
- superior verbal communication skills to be able to uncover facts and scrutinise comments made during interviews
- the ability to objectively review and interpret evidence, and
- excellent written communication and reporting skills to accurately document all evidence and findings.
While an internal staff member may be able to conduct an investigation, it’s integral that they possess the required skills and follow a tried-and-tested methodology that is good enough to withstand rigorous third-party review should the matter be escalated to a court.
The impartiality of the investigation
Every workplace investigation needs to be conducted in a manner that is procedurally fair to each party involved. Where there is any question about the impartiality of the investigator or investigation, there is scope to appeal the findings.
Impartiality can’t always be guaranteed when an investigator is appointed from within the business. If an investigator has a relationship of any description with any of the parties involved, it may raise questions about whether the investigation was conducted in a way that was fair and unbiased.
Where an independent external investigator is used, there will be no question about the impartiality of the investigation as the investigator doesn’t have any pre-existing relationships with any of the parties involved, and they will not have a personal or vested interest in achieving a particular outcome.
The cost of investigating a claim is always an important consideration.
While conducting an investigation in-house may initially seem more affordable than appointing an external investigator, it may end up costing more in the long-run.
When you consider the cost of the investigating staff member’s time spent away from their normal role along with the potential for inefficiency in the investigation process due to a lack of skill or experience, the financial cost may be equitable.
It’s also important to consider the potential cost of having to manage and respond to any disputes that may arise about the investigation process. Where the methodology or findings of an investigation are questioned and need to be reviewed by a court, costs can escalate quickly.
How to appoint an independent investigator
Appointing an external investigator is simple when you choose a specialist investigations company like Emverio Workplace Investigations.
When you first engage us, we’ll want to get a general idea of the type of issue you need investigated, and we’ll provide an overview of our investigations methodology and a quote for services.
If you decide to proceed to appoint one of our skilled and experienced investigators, you’ll need to complete a letter of engagement which should include an overview of the allegations and/or complaint, copies of relevant organisational policies and procedures, instructions on who should be interviewed and some other basic details.
At the conclusion of the investigation we’ll provide a report detailing the findings of the investigation, along with an assessment of whether or not the claims could be substantiated based on the available evidence and balance of probabilities. The business can then decide on the most appropriate course of action to take in response to the investigation in line with their organisational policy.