24 November 2015
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.