Employment Disputes Series - Part 2: Workplace Investigation Best Practice

Posted by Malcolm Campbell on 11 December 2018
Employment Disputes Series - Part 2: Workplace Investigation Best Practice

Workforce demographics are constantly shifting and at an increasing rate. New laws are being implemented frequently. Employees are far more aware of their rights and far more confident to stand up for those rights. It’s safe to say there’s no other area of business where things can change so dramatically in a short period of time.

So having the right process in place that have been properly communicated to employees and ensuring nominated investigators are properly trained, will make a world of difference when you’re faced with a serious workplace complaint.  Without this, mistakes will often be made, particularly where managers are under pressure to resolve complaints quickly.

10 Common Investigation Mistakes

  1. Failing to plan
  2. Ignoring complaints
  3. Delaying investigations
  4. Losing objectivity
  5. Being distracted during interviews
  6. Using overly aggressive interview tactics
  7. Not conducting a thorough investigation
  8. Failing to reach a conclusion
  9. Failing to create a written report
  10. Failing to follow up with those involved

Why Investigate

As an employer you are vicariously liable for the actions of your employees. You have a responsibility to minimise risks to employees  and others in the workplace. As a result, any complaints made to you about conduct in the workplace needs to be investigated.

If you don’t take appropriate steps to adequately investigate complaints, you open yourself up to a range of issues including failing to comply with internal policies/procedures, breaches of the WHS legislation or even constructive dismissal allegations.

Conversely, if you take disciplinary action without investigating all relevant facts and providing the relevant  employee with a reasonable  opportunity to respond to the allegations against them, there is a heightened risk of facing  claims such as Unfair Dismissal or General Protections.

What Should Be Investigated?

While the term 'investigation' has connotations of a very serious and detailed process, the reality is that any and every concern or issue raised in a workplace should be investigated to some degree. To ignore a complaint or concern is a risk for any employer as minor matters left unchecked can often develop into far more serious situations.

All too often serious matters that end up draining a lot of time and effort (not to mention lost productivity) could have been avoided had an initial complaint or concern been looked into in more detail in the early stages.

It may be that the matter can be resolved by way of speaking to the complainant,  seeking further details from them and providing them with further information.  As with any aspect of the employment relationship, it is highly recommended that employers keep a thorough and detailed written records of these types of matters.

When it comes to more serious matters, most often employers will be made aware of the circumstances requiring an investigation via a formal complaint from an employee. However, from time to time an employer may make a discovery that warrants a matter being looked into in more detail.

Employers should not be tempted to ignore these matters simply because no one has formally complained about them.

Who Should Conduct The Investigation?

If the matter is of a minor nature it won't necessarily require a full scale formal investigation.  In these cases management may be capable of gathering the necessary information required to make a decision.
As matters escalate in seriousness and complexity, more qualified and experience people should conduct the investigations. The HR Department (if the business has one) should be involved in all investigations. If the matter is particularly serious or senior management are the subject of a complaint that cannot be investigated internally without giving an impression of bias or conflict of interest, external investigators should be used.

Whether that external person is a HR consultant, a workplace investigator/consultant or a lawyer is dependent on the complexity of the complaint, the seriousness of the complaint and the cost. 

The one thing an employer should never do is use the same lawyer to investigate the complaint that they would want to retain in the event of a complaint being litigated.

Employers need to be aware of not just the technical aspects of the investigation, but be able to form a view early on as to as to whether the case involved a level of sensitivity or complexity that warranted bringing in external assistance.

The main goal is to bring matters to an end as quickly as possible without compromising the quality of the investigation.

Get it right – 4 Easy Steps:

  1. Preparation and information collection
  2. Interviewing the relevant parties
  3. Making a finding/determination and creating a report
  4. Resolution Activities

Getting the processes right  in each step is crucial to ensuring an outcome that is fair to all parties.

In Part 3 of our series Employment Disputes: Insights to help you avoid claims, we’ll cover When Does Performance Management Amount to Bullying. You can read Part 1: The Role of Policies & Procedures here.

If you have concerns about your current investigation process, need help creating new policies and procedures or if you need advice or assistance regarding an employee complaint, please contact us and we can provide you with advice tailored to your specific situation.