Just the facts: Mistakes to avoid when conducting an investigation

Kathryn Dent, Director

In our June webinar, cognisant of the fact that many HR Practitioners are increasingly involved with or conducting investigations, I highlighted the mistakes to avoid when conducting an investigation to ensure that the process and the outcomes are fair, transparent, legally compliant and defensible.

It is difficult to recommend a model investigation process because the process of an investigation will necessarily depend on the allegations, the participants and the workplace. However, avoiding the mistakes set out below should steer organisations in the right direction to ensuring that their findings and action taken in response to the findings, are solid and defensible.

My “top 10” mistakes, and how to avoid them, are reproduced here.

1.  Not following the process

Fortunately, it is rare to find an organisation that doesn’t have a grievance or complaint policy (and those that do not have one should consider drafting and implementing one as a priority).

Policies vary from organisation to organisation so it is important to be familiar with what is required once the complaint or grievance is received. Whilst a policy may not be contractual in nature (the best policies aren’t), they are there to provide consistency of approach and security to employees and to that extent compliance with them is highly advisable.

Generally, policies have a multi-step approach, starting with internal resolution before the matter is escalated. The best policies avoid mandating that each step must be followed (sometimes this is not appropriate given the identity of the parties involved), reserve discretion and afford flexibility to cater for different circumstances. Importantly, the policies should not commit the organisation to commencing and concluding an investigation within a set timeframe. Instead, a general commitment to expediency should suffice, as a means of reassuring the parties.

If you need to deviate from the process set out in the policy, make sure you have sound reasons for doing so and that you consult with those involved in the investigation about this to obtain their consent. This minimises the risk of technical objections and challenges on this point at a later date.

2.  When failing to plan is planning to fail

Once you have decided to investigate, which can sometimes be a challenging step in itself (think about the “off the record” or “confidential chats” employees want to have, usually for fear of retribution), the next phase is planning it. Failing to plan an investigation can affect the outcome and defensibility of findings. For example, it could lead to witnesses and evidence being overlooked, policies not being complied with, insufficient support, an exacerbation of health issues caused by the behaviour the subject of the investigation, an aggravation or repetition of behaviour and further damage to working relationships. Planning will help to mitigate these risks. Planning involves:

  • Identifying witnesses, additional to the complainant and respondent
    • This may or may not be capable of being done early depending on how comprehensive the initial complaint or grievance is.
    • Only interview those who are likely to have knowledge of the matters or who have been identified as potential witnesses by the complainant or the respondent.
  • Working out the order of interviews
    • Generally, interview the complainant first and then the respondent, with any witnesses last. Remember that any new material from witnesses that could affect the findings may necessitate a further interview to put that material to the person (at least of the respondent).
    • Whether respondent or witnesses follow the complainant may depend on:
      • The extent of confidentiality that is required to preserve the integrity of evidence including the respondent’s answers; and
      • How likely it is that the respondent will admit to the allegations and obviate the need for interviewing the witnesses.
  • Working out the mechanics of the interviews
    • Where will they be held? Away from the workplace to protect confidentiality?
    • How will they be recorded? Audio recording requires consent of the party being interviewed. If you are transcribing by hand or recording digitally on an electronic device, best practice dictates that the written statement should be signed.
    • When will they be conducted?
    • How long is each interview likely to take?
  • Status quo
  • Whether or not the parties should remain in the workplace is an important consideration to minimise further damage to workplace relationships or potential health-related issues.
  • There is also the question of whether to suspend the alleged wrongdoer, to avoid a continuation of the behaviour in question and/or victimisation. Suspension on full pay is often sanctioned for cases of serious misconduct and is made easier if there is a clause in the employment contract permitting such an action.
  • Selecting the investigator is also part of the process and leads into a discussion of the next mistake.

3.  Not choosing the right investigator

Remember there are a variety of types of investigators whose job it is to hear the alleged facts and complaint, obtain responses, marshall evidence, assess it on the balance of probabilities and make findings.

The selection of an investigator will depend on the issues at stake (for example, are they potentially press-worthy and reputationdamaging if made public? Could they result in litigation? Would a lawyer be a better choice in order to potentially attract legal professional privilege and preserve confidentiality?)

The selection will also depend on resources (Can the organisation spare an internal resource being devoted to hours of interviews? Does the internal investigator have sufficient experience? Could the internal investigator be accused of bias if they have had dealings with the participants in the investigation?).

4.  Investigator as decision maker

While the investigator’s primary responsibility is to determine the truth of the allegations as far as he or she can, the investigator should also be conscious to avoid acting in a way which may lead to challenges to his or her findings.

On this basis, it would be a mistake to have an investigator as decision-maker on anything other than very minor matters. If the findings could lead to a termination of employment, then separating the investigation function from the decision-making function is prudent. An “independent” decision maker can review the report and accept or reject the findings and then determine the most appropriate course of action without the added pressure of having to defend the process and course they adopted, which may happen if they were the investigator.

5.  Relying on “untested” information

Information should be tested as far as possible. If untested information is going to be relied on, the investigator should be able to justify why that reliance was reasonable in the circumstances.

For example, it would be a mistake to accept as fact information presented by the complainant or witness if there was a means to test it (for example if a document existed which would verify the information presented or event or if a third party witnessed it).

6.  Not knowing the role of a support person

Within the unfair dismissal regime industrial tribunals may find a termination to be harsh, unjust or unreasonable if the unfair dismissal applicant was unreasonably refused the opportunity of having a support person present during any discussions relating to dismissal.

The case law which has developed in this area has clarified that a support person’s role is not that of an advocate or representative, but is limited to assisting the relevant employee.

On this basis an investigator has the right to caution or silence a vocal or obstructive support person or, in extreme cases, suspend or terminate the interview.

7.  No logical order

The order of interviews will help ensure the investigation runs smoothly and expeditiously, the latter being important to preservation of confidentiality, protection of participants, potential restoration of the relationship or timely disciplinary action at worst.

Whilst it is not fatal to have to reinterview witnesses, having an order to the process will minimise this potential. A logical order means that all allegations or accounts can be put to a person in the one interview, and this is usually best achieved if the order of interviewees starts with those who know the most. This can also flush out additional interviewees or other evidence.

8.  Blurring the investigation and the disciplinary response

If you have followed the recommendation to separate the roles of investigator and decisionmaker, then this potential blurring is less likely to occur.

The disciplinary process should be separate and distinct from the investigation. The disciplinary process is about identifying what action is appropriate based on the findings and other relevant material (such as an employee’s personal circumstances and other extenuating factors). At its most simple, the disciplinary process starts when the investigation findings are accepted and should be embarked on in a manner that is procedurally fair. Procedural fairness can be dictated by applicable contractual obligations, policies or procedures. It also arises from the general proposition that any proposed disciplinary action should be put to the employee, a response obtained and consideration given to that response (relevant to defending an unfair dismissal).

It is appropriate to warn the employee prior to the meeting of the potential for dismissal, indicate that all circumstances will be taken into account, and allow a support person to be present.

9.  Not dealing with the findings and implementing recommendations (if there are any)

There are several reasons why it is a mistake to not deal with findings and/or not to implement recommendations.

Inaction may:

  • be seen as excusing unacceptable workplace behaviour, thereby prejudicing the ability to discipline other employees for similar behaviour in the future;
  • adversely impact staff morale and productivity, and at worst may lead to staff turnover or inability to attract new staff;
  • undermine the integrity of the complaint or grievance procedure and as a consequence, employees’ confidence in invoking it;
  • have health and safety implications if a person continues to engage in bullying or harassing behaviour;
  • restrict an employer’s ability to mount a defence, ie making it difficult to demonstrate it took all reasonable steps to prevent any unlawful conduct.

10.  Not learning from mistakes

The final takeaway is to review the investigation once it is completed. Were there lessons to be learned? What were they? For example:

  • Was the relevant process easy to follow?
  • Were employees able to access and rely on the policy, or were there impediments? Can those impediments be eradicated and how?
  • Were there any additional matters raised during the investigation that require attention by way of unaddressed behaviours, non-compliance with policies, flaws in processes, gaps in policies, other breaches?
  • Was confidentiality and non-victimisation maintained or should any potential breaches be separately investigated and disciplined?
  • Has a systemic issue been identified that requires broader investigation or rectification?

The investigation is biased! When to consider an external investigation

Jessica Anderson, Graduate Associate

The Fair Work Commission has identified that it may be prudent for employers to engage an independent third party to conduct a workplace investigation where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence.

Background

In a recent decision of the Fair Work Commission, an employee claimed she had been bullied at work by her manager, against whom she had made a number of complaints previously. The allegations were the subject of two internal investigations that found the manager had acted reasonably. However the employee insisted that the investigations produced an unfair result.

Deputy President Sams was satisfied with the employer’s internal investigations, finding that they were “sound, appropriate and responsive” and allowed the employee “every opportunity” to present her version of events, and noted that it was the employee who was acting unreasonably.

In making his determination, Deputy President Sams said that “no matter what the result of any investigation of her complaints, particularly those conducted by the employer” the employee was “not prepared to accept any outcome, unless it unequivocally vindicated her complaints”. He then went on to recommend an external investigation where it is clear that the employee will not accept the findings of an internal investigation.

Lessons for employers

  • Consider engaging an independent third party to conduct an investigation where it is apparent that an employee will not accept the findings of an internal investigation.
  • Be mindful where an employee’s focus appears to be on exacting revenge or retaliation. That is not the intent of the bullying jurisdiction.
  • A best practice investigation will be “sound, appropriate and responsive” and will provide the employee with every opportunity to present their version of events.
  • Even though an employee is asserting that they are being bullied, this does not mean that they are insulated from any disciplinary action. For example, it may be appropriate for an employee to be disciplined where there is a constant refusal to comply with the reasonable directions of their manager.

Getting it “right”: The benefits of engaging external investigators for workplace investigations

Alison Spivey, Associate Director

With increased scrutiny surrounding workplace investigations, the importance of getting investigations ‘right’ has never been greater. In the wake of the launch of People + Culture Strategies’ White Paper on Workplace Investigations, this article will explore how engaging an independent external investigator can minimise the financial, legal and reputational risks associated with poor investigation practices.

Workplace investigations are becoming increasingly important due to the proliferation of cases arising from allegations of unacceptable workplace behaviour and the expectations that are placed on employers in terms of how they manage those allegations. Often, issues that are taken into account by a court or tribunal during employment-related litigation will have first been investigated internally for the purposes of taking remedial or disciplinary action, or for discovering the factual circumstances behind a grievance. It is therefore important that organisations carry out investigations properly, as a failure to do so can, amongst other things, compromise how they defend the matter if it progresses to litigation.

The White Paper, which was released in August 2016, provides an analysis of the responses of 110 PCS clients and partner organisations to a survey directed at identifying the circumstances in which workplace investigations are undertaken. Respondents represented a variety of industries, ranging from professional services and banking to hospitality and manufacturing. The respondents also varied with regards to the size of the organisations (ranging from 1 to 1,000+ employees) and their annual turnover (ranging from $500,000 to $100 million+ per annum).

The responses to the survey reflected in the White Paper not only reinforce the risks for employers that may arise from poor investigation practices, but also highlight the need for employers to perform a cost/benefit analysis in determining how to best approach workplace investigations more generally.

Key mistakes in internal investigations and the potential risks

The risks associated with poor investigation practices are not insignificant, and mistakes can expose employers to significant financial, legal and reputational risks. And with 40% of respondents to the White Paper survey answering “yes” to having legal proceedings commenced at least once following an internal investigation, it is imperative that employers consider whether the risks of investigating internally outweigh the benefits. Key mistakes that employers often make during the course of an internal workplace investigation include:

  1. a lack of pre-investigation planning;
  2. a morphing of the investigation and disciplinary steps;
  3. relying on “untested” information, unduly favouring one account and ignoring discrepancies;
  4. failing to establish a process that is perceived as independent and free of bias; and
  5. delay in undertaking an investigation that fuels speculation and gossip and can jeopardise appropriate disciplinary action.

More often than not, these mistakes are the result of a lack of experience and skill on the part of the internal investigator appointed by the employer. The potential consequences of utilising an inexperienced internal resource to conduct a workplace investigation were made clear in Francis v Patrick Stevedores Holdings Pty Ltd [2014] FWC 7775:

“Ms Green had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent’s evidentiary case. This should not be seen as a criticism, per se of Ms Green, but rather it demonstrates a failure of senior management to recognise the seriousness of the issues and their causes and a failure to independently assess the investigator’s findings and recommendations. Ms Green should not be blamed for these failures.”

The employee’s dismissal was overturned by the Fair Work Commission due to the flaws in the investigation that led to it.

The case of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 also highlighted the significant financial liabilities employers expose themselves to when failing to properly investigate complaints. In that case, the Court criticised Oracle for requiring the complainant to maintain contact with her colleague (who was ultimately found to have sexually harassed her) during the investigation process. Only once the investigation had been completed were the two separated at work. The Court was satisfied that the requirement to remain in contact during the investigation contributed in part to the complainant’s psychological injury for which she was awarded $130,000 in damages.

What are the advantages of an external investigation?

While external investigations can involve an upfront cost for an organisation (in terms of engaging an investigator to conduct the investigation and provide a report), this needs to be weighed up against the significant costs involved in upskilling internal personnel sufficiently to conduct appropriate workplace investigations, the potentially greater risk of having to defend the internal process in any subsequent legal proceedings and the payment of any compensation that may be ordered.

In this regard, we note that the respondents to the White Paper survey indicated that they were investing an average of one-five days per year per staff member in training their staff on how to conduct investigations. However, when this figure is considered in the context of how many respondents have had legal proceedings commenced against them following an internal investigation, the question arises as to whether the training that is being provided to train staff in conducting workplace investigations internally is sufficient or whether those resources could be better allocated.

There are also significant benefits associated with engaging an external investigator to conduct workplace investigations. Two of the more significant of those benefits (confidence and confidentiality) are discussed further below

Confidence

One of the benefits of engaging an external investigator to conduct workplace investigations is that it may provide all participants in the investigation process with greater confidence in the process and its outcomes. The responses to the White Paper survey:

  • confirmed the importance of maintaining perceptions of impartiality and due process to maintaining the integrity of a workplace investigation;
  • revealed that respondents remained concerned about the capabilities of internal personnel conducting investigations despite almost 69% of respondents investing in at least one day’s training for such personnel;
  • disclosed that respondent organisations which conduct only internal investigations were nearly two and a half times more likely to cite concerns around legal proceedings as a reason preventing them from implementing recommendations arising from an investigation. They were also 56% more likely to be uncertain about how to implement any recommendations following an investigation; and 
  • confirmed that respondents to investigations are more likely to commence legal proceedings in circumstances where they have concerns about the manner in which the investigation process was conducted and its overall fairness.

These findings from the White Paper survey (in isolation) reflect a potential lack of confidence in internal investigations and the manner in which they are conducted, the outcomes of the investigations (and implementing those outcomes) and an increased likelihood of legal proceedings in response to the investigation outcomes.

While it is acknowledged that there are advantages in having internal personnel understand the investigation process and managing investigations into minor or “everyday” workplace issues, employers ought to consider whether it may be a better investment to engage an experienced external investigator in relation to issues that have potentially significant consequences for their organisation.

In engaging an external investigator to conduct workplace investigations an employer is also “buying” access to the benefit of the external investigator’s skills and experience, not only in terms of ensuring that the investigation process is conducted in an appropriate way, but also in terms of any recommendations that are made as to what may be appropriate action by the employer in response to the investigation findings (assuming that the investigator is also requested to provide recommendations following the investigation).

Confidentiality

A further benefit of engaging an external investigator to conduct workplace investigations is the additional confidentiality, or perception of confidentiality, attaching to an external investigator’s involvement in that process. This too may also enhance the perceived integrity of the investigation process with the investigation participants, in turn reducing the risk of disputes in relation to the investigation outcomes.

The use of an external investigator may enhance the perception that the matter will be investigated at “arm’s length” and it is more likely that the subject matter of the investigation (and the investigation itself) will remain confidential. Further, an external investigation is less likely to impact upon ongoing workplace relationships (to the extent that the investigator will not remain in the workplace on completion of the investigation process), which is particularly important if the investigation relates to personal or sensitive matters.

Additional benefits in respect of confidentiality can also be achieved if an employer engages a lawyer as an external investigator, to the extent that the employer may be able to claim legal professional privilege in respect of the workplace investigation. This privilege protects certain oral and written communications between lawyers and their clients which are prepared for the dominant purpose of providing legal advice or services relating to litigation (actual or contemplated). This facilitates a free exchange of information between the lawyer and client, so that the client can be properly advised, without fear of potentially prejudicial information being disclosed at a later date.

While legal professional privilege will not automatically attach to an investigation report prepared by a legal practitioner, it can be of significant benefit to an organisation if it is established. The obvious benefit of legal professional privilege is that communications and documents attracting privilege retain their confidentiality and need not be disclosed, unless privilege is waived. This is particularly important in circumstances where documents contain information about matters that could bring the organisation into disrepute, or if information is of a highly sensitive nature, such as pertaining to sexual harassment investigations.

The case of Bowker and Ors v DP World and Ors demonstrates the value of legal professional privilege for organisations. In this case, Ms Bowker and others sought access to a number of documents, including an investigation report, in connection with their bullying proceedings commenced against DP World. DP World’s lawyers had engaged an independent investigator to provide them with advice in relation to the bullying complaints. DP World attached a summary document outlining the findings of the independent investigation to one of the witness statements it had filed with the Fair Work Commission (“Commission”). The applicants submitted that legal professional privilege and client legal privilege had been waived by attaching this summary document. The Commission held that the investigation report and associated documents were privileged and that this had not been waived in the course of the bullying proceedings. In particular, the Commission determined that the documents “came into existence for the purpose of enabling the solicitors for DP World to provide legal advice”. Accordingly, DP World’s investigation report remained confidential.

What other factors need to be considered?

The decision as to who will conduct an investigation is crucial to the success of that process. Ultimately, a range of factors will influence an employer’s decision as to whether to appoint an internal or external investigator. Central to that decision will be whether the employer considers that it has the appropriate resources to conduct the investigation internally, having regard to:

  • the nature and seriousness of the matters the subject of the complaint (including any sensitive matters);
  • the seniority of the employees involved in the investigation;
  • the degree of bias that may be perceived if the investigation were to be conducted internally; 
  • the skill and experience within the employer’s business for conducting the level of investigation required; 
  • the timing or urgency of the investigation, including whether the complaint has been raised during a peak period for the employer, or if there is a risk to health and safety; and/or 
  • the extent of the resources (time and personnel) that would need to be dedicated to the investigation when compared with the costs of an external investigator.

Key Takeaways

  • Mistakes in investigations can be very costly for employers and employees. There is a need to consider what the best approach is to conducting workplace investigations taking into account the needs of the business. 
  • One of the most significant considerations for employers is whether to engage an external investigator. 
  • While not appropriate in every circumstance, there are a variety of benefits attaching to engaging an external investigator to conduct workplace investigations, including that participants in the investigation process are likely to be more confident that the findings of an external investigator are unbiased, and accordingly may be less likely to challenge them.

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].

What do you do when a complaint is made against someone in HR?

It’s a gloomy, grey Monday morning. You arrive at your desk to find a long document sitting at the top of your in-tray - it’s a complaint lodged against one of your Executive Team. The complaint is flagged for urgent attention, with a note from your 2IC recommending that an investigation be held as soon as possible.

You pick up the phone to call your HR manager. Then you look at the complaint more closely: the alleged perpetrator is a member of your HR team. What do you do?

The above is an increasingly common scenario. Workplace investigations are becoming increasingly prevalent, in part due to the introduction of the Fair Work Act anti-bullying regime and as part of a general increase in cases (complaints and grievances) relating to workplace behaviour. The fact that performance management can be a genuine (or not) source of grievance means that complaints related to alleged bullying in this arena often include reference to the HR professionals conducting, or involved in, the process. 

Investigations are typically conducted internally for the purposes of taking remedial or disciplinary action, or for discovering the factual circumstances behind a grievance. 

But what happens when the persons who usually carry out the investigation are also named as alleged perpetrators of the conduct? 

Is an investigation required?

It is important that organisations treat complaints and grievances with necessary seriousness, as a failure to do so may compromise their defence if the matters raised internally progress to bullying claims and/or litigation. Treating complaints and grievances with seriousness requires, at the very least, compliance with any applicable contractual terms, policies or procedures. Those terms, policies or procedures may or may not indicate when an investigation must be conducted (and how).

While each case will turn on its own facts because of the individual nature of the documents governing the process, there are some clear circumstances that may justify the need for an investigation, such as where:

  • the allegations relate to the conduct of another employee for which the employer may be vicariously liable or which may cause a risk to health or safety;
  • the allegations of misconduct are complex, and an investigation is required to clearly establish the relevant facts and circumstances;
  • the allegations relate to “serious” misconduct; 
  • the allegations could cause an organisation reputational and brand damage;
  • the allegations implicate senior executives and managers; or
  • a formal investigation is required by contract or an industrial instrument as part of the disciplinary process.

Who should conduct the investigation?

Employees, particularly when subject to an investigation, like to know that decisions made in the workplace are impartial and free from bias. An effective workplace investigation allows each of the participants to be heard, for evidence to be submitted and for an impartial decision to be made on the facts and merits of each case.

As such, while in many cases it may be appropriate for your HR team to conduct an investigation, there are many scenarios in which an external investigation is prudent, including:

  • where the incident involves sensitive issues in which you need to ensure legal professional privilege, to the extent possible; 
  • where the relevant HR professionals do not have sufficient expertise or confidence to conduct the investigation; 
  • where there is no internal person that is able to undertake an investigation at arm’s length, for example where the relevant internal person has a conflict of interest (because they may be directly or indirectly implicated, or their manager is);
  • where the relevant internal person is going to be the decision maker (as to the outcome in respect of the investigation’s findings); or
  • where the internal investigation has failed to resolve the matter and the aggrieved employee seeks to escalate the matter (whether by way of an appeal against the findings, as an entitlement under the governing documentation or from an organisational viewpoint if that will prevent the employee lodging an anti-bullying application or some form of external complaint). 

In situations like this engagement of a firm, like PCS, with skill and experience in investigations will ensure the process is invested with objectivity, fairness, natural justice and as a consequence the organisation is likely to save on costs, time and possible further litigation.

 

Workplace Investigations | Five steps to best practice

When it comes to workplace investigations, an employer’s good intention sometimes isn’t enough. In a recent decision, the Fair Work Commission held that an employer’s otherwise well handled investigation into complaints made against an employee was unfair because the employee (who was the subject of the complaint) was only interviewed after findings in the investigation had been made. Although the employee had an opportunity to respond to the findings before a disciplinary decision was made, this opportunity was not “genuine” because the employee wasn’t given a chance to explain his conduct.

To ensure workplace investigations meet best practice standards, and to protect themselves from liability in a range of areas, employers should:

  • Be thorough: plan the investigation. Particularise allegations made by the complainant.
  • Communicate with fairness in mind: don’t make assumptions. Listen, put allegations to the accused, and give all parties an opportunity to respond before a finding is made
  • Report on your decision: detail the steps you have taken and why.
  • Use findings proactively: could the findings uncovered in the investigation be indicative of a wider problem in the workplace? Could they be used to inform behaviour and culture training to prevent future incidents?
  • Maintain confidentiality and an open, non-victimising culture: this is important from both a legal perspective and to ensure trust in the investigation process.

Handled properly, workplace investigations not only ensure employers are prepared should a worker pursue a legal claim arising out of the investigated conduct, but have the potential to prevent workplace issues from becoming legal issues in the first place.