Accusations of unlawful conduct in the workplace need to be taken seriously, but before drawing conclusions about what you think happened, it’s important that the process that you have used to draw those conclusions are procedurally fair. Why? Because if you don’t you could find yourself subject to an ‘unfair dismissal claim’. But broader than that, unfair management decisions has a deleterious impact on your team, its culture, productivity, attracting and retaining staff, health and well-being of individuals and the broader team and increased conflict costs (time, increased insurance costs and responding to claims).
A robust and procedurally fair workplace investigation ensures that managers and decision makers can determine with certainty what further actions are warranted, based on the outcomes of that investigation and demonstrates to your employees that you take their concerns seriously and deal with them fairly.
Before commencing a workplace investigation, it’s important to understand what constitutes a fair process and how to assess any information collected using the civil standard of proof the ‘balance of probabilities’ so that you can make robust and fair decisions.
When to investigate a complaint.
- Allegations / complaints
Every workplace investigation starts with an allegation or complaint. This could relate to anything from bullying, discrimination or sexual harassment, to fraud, theft or inappropriate behaviour. Sometimes complaints are about other matters such as; management style, someone’s tone or attitude, performance, communication, allocation of work or resources. When an allegation is made, it’s important that you obtain as much specific detail about it as possible, without forming any conclusions, such as:
- What actually happened (who did what)?
- When did it happen (date / time)?
- Who else was there?
There may be multiple incidents that you will need to investigate. These form the basis of the allegations. The more accurate information you can obtain the better decisions you can make about what intervention is the most appropriate.
Who should investigate?
- Assess what type of investigation is warranted
You will need to determine whether the allegations are serious enough to warrant an investigation and what sort of investigation you need. At this stage it is important to refer to your organisation’s policies and processes to assist you to make a decision about whether or not the matter can be dealt with informally, internally or requires an external investigation.
We recommend a workplace investigation where the allegations (if substantiated) would attract disciplinary action or termination. When considering whether to appoint an external investigator you need to consider the following:
- Whether the employee has requested an external investigation. Employment Tribunals have been critical of employers who have conducted sloppy or self-serving internal investigations (Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Pasadena). The Fair Work Commission has recommended in future, where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation. Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 (19 August 2016)
- Whether you have the skills / knowledge or experience to conduct a robust workplace investigation internally.
- The relationships between co-workers, managers, HR and decision makers that may be perceived as being biased (even a perceived bias can compromise an investigation). For example, it is best practice that the investigator is not the same person as the decision maker. The decision maker will determine what further action, if any, is warranted based on the outcome of that investigation. These are two different functions.
- The respondent (person complained about). If the respondent is senior (a Manager, an Executive) or is likely to attract attention in the public, or is a particularly sensitive matter, it may be unfair to ask that someone investigate the matter internally.
- Your budget. The larger the organisation the higher the expectation will be that the business has the resources to conduct more robust investigations.
- Whether the internal investigator’s workload will allow them to have the time to conduct a robust and compliant workplace investigation.
- Seriousness of complaints. For example; if the allegations are substantiated, what would be the worst outcome? If it is training or counselling, then you might want to consider a less formal approach to deal with the complaints. For criminal and unlawful matters you may be compelled to report the behaviour to the police or a regulatory agency. This does not negate your responsibility to conduct your own workplace investigation. However, the workplace investigator can work with the agency to ensure that they do not interfere with those agency investigations.
- How to manage the communications with and manage the complainant (person complaining), witnesses, respondents (sometimes employers also use the words ‘subject officers’ and / or ‘persons of interest’). When and how to notify participants and what information they are entitled to. Whether or not to stand people down whilst the matter is being investigated and what to consider when making this decision.
All the above factors will determine whether you choose to engage an external workplace investigation provider or whether you conduct the investigation internally.
How to choose an external workplace investigator?
Currently the licensing regime for workplace investigations is subsumed into ‘private investigations’ which is a State regulated function. The certification is inadequate and unrepresentative of the core tasks required to be carried out by a workplace investigator (for example; interviewing, the standard of proof, applying principles of procedural fairness, weighing evidence) and significant areas of expertise are missing from the standard Cert IV training and licence requirements. Certain disciplines have expertise in particular areas, for example; workplace lawyers have an understanding of workplace laws, police officers have expertise in interviewing, HR have intimate knowledge of their workplace policies. So it can be challenging to find an investigator with specific skills and knowledge to conduct robust investigations with broad skills, without over-capitalising and within your budget.
Accordingly, having a ‘licensed investigator’ does not mean that you will necessarily be engaging a workplace investigator with the requisite skills and expertise in conducting workplace investigations.
Overall there is a fragmented and inadequate licensing regime for workplace investigators and there have been calls for a regulatory overhaul (Unsystematic and Unsettled: A Map of the Legal Dimensions of Workplace Investigations in Australia, Adriana Orifici, UNSW Law Journal, Volume 42 No 3, September 2019).
Nevertheless here are some guidelines to assist you to manage your workplace investigations.
- When choosing an external, independent workplace investigator it is important for you to consider:
- Drafting your own Terms of Reference (TOR) or Scope of Works. The TOR captures details such as what you want the investigator to investigate, the key contact people (usually HR or a senior manager and someone to assist with the administration and logistics of scheduling interviews), the policies you want the investigator to use, who you want the investigator to interview, what sort of findings you want the investigator to make, the investigation methodology / process or templates you want them to use, confidentiality protocols, what you want in the report and any other relevant matters. If you are engaging an investigator for the first time, ask if they can forward you some de-identified TOR’s that you can use to assist you to determine the Scope of Works. This is really important to ensure that investigators stay on track and that the investigation has focus and structure. And, that both you and the investigator have your expectations aligned.
- Communication protocols. Communication is essential for the smooth delivery of a workplace investigation. Clarifying the contact point to assist notify employees, provide information and scheduling interviews. In addition, who the final report goes to. Who to discuss more material matters with, such as, if the investigator obtains information outside of the scope of the investigation
- Timeframes. Ensure that investigator has the capacity to undertake the investigation within a reasonable timeframe.
- Methodology. What methodology do you want the investigator to use? If you don’t know, ask the investigator for a short summary of the methodology and ask questions if you don’t understand it.
- Video / audio recording. As a standard practice all interviews should be audio recorded and independently transcribed. At Emverio Workplace Investigations all our interviews are conducted online and video / audio recorded.
- Editing / drafts. It is also important to commit to how many drafts you agree to. Who does the first draft go to for review. What can / can’t be edited, and how to deal with material changes.
- Complaints Process. Often if you have an independent contractor undertaking an investigation, you have no way to have their work reviewed independently and raise complaints / concerns with. At Emverio Workplace Investigations we have a National Practice Manager who is always available to address any concerns.
More about Emverio Workplace Investigations
At Emverio Workplace Investigations, we specialise in investigating inappropriate, unlawful or employee misconduct, including workplace complaints about; bullying, discrimination, sexual harassment, inappropriate behaviour and other misconduct.
Our processes ensure that your investigations will be conducted quickly and in a manner that is procedurally fair, enabling you to make informed decisions based on findings which will withstand robust third-party review.
Emverio Workplace Investigations use a national, multi-disciplinary team who work together to provide robust investigation reports, that you can rely on and have the confidence to make decisions, quickly.
Contact the team at Emverio Workplace Investigations to find out more or to discuss your requirements.
