What is Workplace Investigation?
A workplace investigation is an independent inquiry into allegations1 about an employee’s conduct or behaviour. Usually a workplace investigation is required if the complaints are capable of being substantiated that it would attract disciplinary action, such as:
Where someone complains that a co-worker is constantly sexualizing any comments that they make, which they find crude and offensive.
At Emverio Workplace Solutions we conduct what is called a ‘fact-finding’ investigation. This means that the investigator collects information and will examine that information to make a finding2 about whether or not the allegation or allegations can be substantiated in fact. We will then provide that report to you (the employer). As an employer you can accept or reject those findings. You then need to determine two things:
- Whether the substantiated allegations constitute a breach of your policies and procedures.
- What further action is warranted commensurate with the findings.
Separating out these two functions can be useful. For example, you can get your lawyers to determine number 1 and provide recommendations on number 2, and provide that to your Human Resources Manager or CEO to make the final decisions. Alternatively, your organization can make those decisions.
Workplace Investigations require the use of the standard of proof called the balance of probabilities as distinguished from the standard applied in criminal cases being beyond reasonable doubt. The term balance of probabilities is frequently interchanged with the words more likely than not.
Balance of Probabilities (more likely than not)
In the law of evidence, the degree of certainty with which contested facts must be established in order to be accepted as proved. In civil proceedings, the contested facts must be proved on the balance of probabilities. In criminal trial, the prosecution must prove its case beyond reasonable doubt, a greater test of proof.
It is the weighing up or comparison of competing possibilities. A fact is proved to be true on the balance of probabilities if its existence is more probable than not, or if it is established by a preponderance of probability: Briginshaw v Briginshaw (1938) HCA 34.
1 A claim or assertion that someone has done something illegal or wrong, typically one made without proof.
2 Information discovered as a result of an inquiry or investigation
Cited at http://workplaceinfo.com.au/resources/employment-topics-a-z/balance-of-probabilities
Matters relating to employment are determined on the balance of probabilities and the more serious the potential consequences, the more robust the evidence needs to be.
What Happens in a Workplace Investigation?
We collect information by conducting in-person interviews and obtaining relevant documents such as emails, contemporaneous notes3, text messages, photos, computer records, timesheets, and any other relevant material. We normally start with sending a quote for services and a brief outline of the workplace investigation methodology. The employer will then email us an engagement letter. An engagement letter will usually outline the scope of the workplace investigation.
Generally, this letter will include an outline of the allegations and / or a copy of the complaint, reference and copies of the relevant employer’s policies and procedures, instructions about who to interview, the name of the contact person, the communication process, where the report is to go to, and timeframes, what you want in the report, how to change the scope, billing and invoicing requirements. If required, we can send you a template letter that you can adapt to suit your business and investigation requirements.
What is the Process for a Workplace Investigation?
At Emverio Workplace Solutions our normal process is to interview the complainant first. All our interviews are audio recorded unless we are instructed otherwise. We then determine what allegations warrant further investigation. Just because you complain about it, does not mean that it will be investigated. Only those allegations that are serious enough and which we have enough information (such as when, where and whether anyone else was also present) will warrant further investigation. We then interview any other persons of interest. Lastly, we will put the allegations to the respondent (person complained about) and give them an opportunity to respond to those allegations. How we do this will depend again on the seriousness of the allegations. The allegations may be provided in writing or the allegations may be put to the respondent at the actual interview.
A workplace investigation requires that both parties (the complainant and the respondent) are given procedural fairness. It is generally accepted that procedural fairness requires:
- That the employee must be made aware of the allegations raised against them.
- That the employee is given sufficient information and an opportunity to respond to those allegations.
- The employees are given access to an unbiased and independent decision maker. For example; it would not be fair to already have formed conclusions based on your prior dealings with the employees (complainant or the respondent). Or it would not be fair if you were involved in some of the incidents complained about.
In addition, it is important that where an intervention may attract disciplinary action, it is common practice to give the respondent an opportunity to be accompanied by a support person.
3 This is defined as an accurate record, made at the time, or as soon after the event as practicable.
For more information and downloadable PDF’s about support people and other informative Fact Sheets please look under our resources page.
Should we get an External Investigator or Conduct it Internally?
This really depends on the nature and seriousness of the allegations raised, the skill of the internal investigator, and whether or not there has been concerns raised about the impartiality of the investigation and of course, your budget. In Xiaoli Cao v Metro Assist Inc; Rita Wilkinson  FWC 5592 (19 August 2016) the Fair Work Commission recommended that an external bullying investigation should be conducted if transparency is in doubt. Deputy President Sams said that:
“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”.
Common Terms that are Used in Workplace Investigations
Legal Privilege – Do I need a Lawyer to Do the Investigation?
In Australia, legal professional privilege (also referred to as client legal privilege) is a rule of law protecting communications between legal practitioners and their clients from disclosure under compulsion of court or statute. However, employers risk losing privilege and risk having to disclose investigation reports, if they rely on the contents of a report as evidence against the employee in legal proceedings (such as unfair dismissal).
Whether you need it or not depends on the seriousness of the allegations raised. Lawyers are expensive, and using lawyers to conduct an investigation can significantly increase the costs associated with a workplace investigation. Lawyer expertise is required on some matters. However, the majority of matters can be worked through using independent and robust processes.
“It is common in government and political circles to discuss if any decision would pass the “Courier-Mail Test”, meaning that if the results of the action were to go public, and all the positive aspects removed, how would any potential negative aspects be scandalised by the Courier Mail and thus what risks need to be mitigated early”.
If the allegations are against someone senior in your organization and / or the allegations are very serious then you might want to consider getting a lawyer to engage us to do the fact-finding investigation.