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Stop! Investigate and Listen

1 February 2016


Stop! Investigate and Listen

David Weiler, Associate

The legal, commercial and reputational risks arising from actions that include general protections (adverse action) and unfair dismissal claims, to applications for anti-bullying orders and a renewed focus on substantial compensation in sexual harassment complaints are leaving employers searching for robust, defensible, swift and effective workplace investigations techniques.

Conducting these workplace investigations requires considering a number of factors which we will explore in this article. Employers should feel comfortable relying on the findings of investigations, whether undertaken in-house or outsourced to professional firms.

STEP 1: TO INVESTIGATE OR NOT?

In order to implement best practice investigations, the first question always needs to be whether or not to investigate. Answering this question in the affirmative requires there to be material allegations in existence that, if true, would lead to a legitimate dispute or complaint. The objective of an effective investigation should be to determine the nature of the complaint, what has been observed and the seriousness of substantiated allegations. For example, if the allegations are substantiated would the conduct result in a breach of the law or company policy? If so, the decision must be made whether to carry out the investigation in-house, or commission an independent third party such as a workplace investigation company or lawyer.

It is important to remember that by having an external lawyer investigate the complaint, an employer has a greater chance of relying on legal privilege should the matter lead to litigation.

However, engaging an external investigator does not absolve an employer from the requirement of establishing that there was a valid reason for dismissal. In a recent case, the Fair Work Commission (“Commission”) determined that an employee should be reinstated after being unfairly dismissed despite an external investigation finding that he had made a false complaint against another employee in relation to inappropriate touching of a patient. The flaws in the investigation and inferences made from it were grave enough for Deputy President Bull to rule that the conclusions relied upon to dismiss the employee were “simply not available to St Vincent’s on any reasonable and impartial evaluation of the evidence.”1 This case exemplifies the importance of a well done investigation.

STEP 2: PLANNING THE INVESTIGATION

Upon receipt of a complaint, an employer should prepare an investigation plan. The plan should detail the relevant witnesses identified and include a proposed timeline. The investigator should be familiar with the relevant company policies regarding ethics, misconduct, grievance and discipline and applicable legislation or industrial instruments.

Once material facts in dispute have been established and the employer decides to carry out the investigation themselves, the mechanics need to be planned including:

  • location of interviews;
  • note taking and interview summaries;
  • compliance with company policies and guidelines; and
  • drafting a rough investigation timeline/mind map.

In the planning phase, an employer needs to be careful not to automatically stand down the respondent – procedural fairness must be ensured. Employers should consider alternatives such as moving employees into different work spaces or, if possible, allowing either the complainant or respondent to work from home.

When planning an investigation, there are three important roles that need to be filled:

  • Contact person – this position is relevant for the complainant, the respondent, any witnesses and the decision maker. The contact person’s duty is to assist in any questions raised by any persons relevant to the investigation while remaining impartial.
  • Investigator – this position requires the most care and attention as it is the investigator who completes the fact finding process.
  • Decision maker – once a report has been provided by the investigator, the decision maker is required to assess all the material evidenced and make a final determination (such as counselling, warnings, termination of employment or training and monitoring).

STEP 3: INFORMATION GATHERING

Complainant

Once an investigation plan has been decided and roles established, contact should be made with the complainant and the nature of the investigation and the investigator’s role should be fully explained. A date and time must be set to attend an interview. Interviews should be conducted on a face-to-face basis where possible with a contemporaneous statement. It is important to advise the complainant of their right to a support person (or representation) at the interview.

Respondent

The respondent must also be contacted to provide an opportunity to respond to the allegations either orally at the interview or in writing. Remember to advise the respondent of their right to a support person (or representation) at the interview.

Procedural fairness is one of the main areas that investigators often get tripped up on in the investigation process. It is imperative that the respondent is afforded procedural fairness at each turn to avoid allegations being unfairly substantiated. The investigator should also follow any policies, maintain confidentiality at all times and investigate the matter fairly and without bias while maintaining objectivity and independence.

Witnesses

All relevant witnesses need to be interviewed to establish who can give the best information about specific factual allegations. The same process for convening a witness interview as taken with the complainant and the respondent should be utilised. Where possible a contemporaneous statement should be taken.

Another important area where investigators fail is that they ignore discrepancies in the evidence. If necessary, re-interview parties to fill in the gaps. While everyone wants the process wrapped up quickly, it is more important to do it right.

In White v Asciano Services Pty Ltd t/as Pacific National [2015] FWC 7466, a train driver was dismissed after an investigation found that he had purposefully (or negligently) left a co-worker on the side of the tracks when she went to use the bathroom. In the investigation report, a witness was quoted as saying “I’m going to the toilet. Don’t leave without me”. This was used to establish the finding that the driver knew his co-worker was not using the on-board toilet. However, following the legal proceedings, the Commission came to the conclusion that the witness never actually said this. The reliance on inaccurate evidence in the investigation led to the reinstatement of the dismissed driver. Employers cannot try to make the facts fit the findings; instead the findings must fit the facts.

STEP 4: FINDINGS

Once the investigation is complete and all evidence has been obtained, the investigator must make his or her findings. This includes findings on the factual allegations of the specific incident or incidents to establish whether there has been a breach of contract or company policy.

Investigations are not criminal prosecutions and therefore the standard of proof that should be applied is the balance of probabilities. While it is necessary to be conscious of the gravity of the allegations and the consequences flowing from a particular finding, a recent Full Bench decision stated in no uncertain terms that “in a common sense way, if serious misconduct is evident from the investigation, an employer cannot be expected to have no leanings or inclinations as to the likely sanction against the employee.”2

EFFECTIVE INVESTIGATIONS

Organisations know that turning a blind eye to complaints raised by employees is an ineffective strategy in the modern workplace. What is essential is having investigative capabilities, whether internal or external, to operate in today’s legal environment. However, no matter how sophisticated a business becomes in this area, it must also feel able to call on professionals to take control of the process. The costs associated with a proper, independent investigation pale in comparison to the price of a legal claim.

KEY TAKEAWAYS

  • Investing in investigations up front will save time and money down the track. 
  • Findings must be supported by facts (on the balance of probabilities), not feelings. 
  • Employers should develop internal investigative capacities but know when the situation calls for an external investigation.

1. Osmond v St Vincent’s Hospital Sydney Limited T/A St Vincent’s Hospital [2015] FWC 7677 at [131].

2. BHP Coal Pty Ltd T/A BMA v Jason Schmidt [2016] FWCFB 72, at [35].

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