Whilst most employees are aware of the need to conduct workplace investigations, some may underestimate the benefits of a properly planned, conducted and recorded investigation.
Workplace investigations play an important role in addressing alleged inappropriate and/or improper workplace conduct and behaviour. Increasingly, workplace investigations also provide justification for the taking of disciplinary action against an employee, including the termination of employment.
Where an investigation is not properly conducted, potential consequences may include:
- allegations of bias against the investigator and/or the employer during the investigation process;
- an unfair dismissal claim being made on the ground of an unfair process being followed in the lead up to the termination, with potential remedies including reinstatement and/or compensation; and
- a breach of contract claim where the investigation has failed to comply with relevant company policies or procedures.
When should you conduct a workplace investigation?
Workplace investigations should generally be conducted where there has been a suggestion or allegation of breach of legislation or company policy, evidence of misconduct, a Work Health and Safety incident, or a complaint or grievance has been made, or in circumstances where an investigation is required under relevant organisational policy or procedure.
Initial considerations when conducting a workplace investigation
Establishing the scope and planning the investigation. That process provides a solid foundation for a fair and reliable investigation. The initial considerations should include the following:
- Whether there is a basis for an investigation. That is, if the allegations were substantiated, would they constitute a breach of legislation or company policy? If not, an investigation may not be justified.
- The appropriateness of making alternative arrangements whilst the investigation is being completed, such as standing down an employee or making temporary changes to reporting lines.
- Whether your company policies or industrial instruments mandate preliminary steps to be taken before the investigation is conducted.
- Who should conduct the investigation and whether it should be conducted internally or externally.
- If the investigation is being undertaken for the purpose of obtaining legal advice, whether it is appropriate for the investigation to be subject to legal professional privilege.
- The scope of the investigation.
- How the witnesses will be identified.
- How the interviews will be conducted, including who will be present during the interviews and whether they will be recorded.
Conducting the investigation
For most investigations, it is appropriate to appoint an internal investigator, such as a Human Resources representative to conduct the investigation.
However, it may also be worthwhile to consider appointing an external investigator, particularly where the allegations are serious or complicated in nature, or where persons who usually conduct investigations within your organisation are compromise by, for example, some of the allegations to be investigated involving them. An external investigator can instill confidence in the investigation process by preserving impartiality, confidentiality, and relationships between individuals employed by your organisation.
In order to treat employees fairly and to protect the integrity of the investigation, your organisation should:
- inform the employee of the allegations against them;
- provide the employee with an opportunity to be heard and to be represented as part of the process;
- maintain the impartiality of the investigator(s) by checking any conflict(s) or interest and/or relationship(s) with participants;
- allow participants sufficient time to respond to any questions;
- ensure confidentiality throughout the investigation process;
- record witness evidence and provide witnesses with an opportunity to confirm the accuracy of written records; and
- demonstrate facts or evidence to support the relevant findings.
Concluding an workplace investigation
At the end of the investigation and before a report is produced, your organisation should review the process that has been followed to that stage to ensure that the investigation has been conducted properly and fairly to all parties involved, including that any relevant procedure or policy was followed.
Questions that should be asked include:
- Have all relevant witnesses been consulted?
- Does the investigator hold all relevant documents?
- Have all inconsistencies been explored?
- Are the sources of information reliable?
The benefits of a proper workplace investigation
A properly conducted investigation is an essential risk management tool and can greatly benefit your organisation by:
- providing an opportunity to identify systemic issues and develop controls to prevent future incidents;
- promoting compliance with organisational policies and procedures;
- establishing a regime of fair and consistent treatment of employees;
- demonstrating that your organisation takes its obligations seriously; and
- serving as written evidence of a fair process in legal claims associated with disciplinary action taken against an employee.
- Workplace investigations form an important part in managing alleged inappropriate behaviour or conduct.
- A properly conducted workplace investigation can have many benefits including that it can serve as evidence that a fair process was followed if there are subsequent legal claims associated with disciplinary action taken against an employee.
Dimetria Baramili – Lawyer, Lander & Rogers
Christian Mooney – Senior Associate, Lander & Rogers
This article was originally published in the Autumn 2016 | Workplace Relations & Safety Bulletin by Lander & Rogers, and republished with permission.
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