Flaws arising from the investigation process often undermine the employer’s decision-making process and tend to increase exposure to unfair dismissal or breach of contract claims.
Written by Luis Izzo, Managing Director Sydney Workplace, Australian Business Lawyers & Advisors
As a director of Australian Business Lawyers & Advisors, I am regularly called to advise on disciplinary action resulting from workplace investigations.
Here are five tips for ensuring your workplace investigation stays on track.
Set the scope
Regardless of whether you are investigating a matter internally or engaging an external investigator, it is important to set the scope of what is being investigated at the outset.
Sure, developments might arise during the investigation process that require the scope to be expanded or narrowed. However, if you don’t set a scope or framework for the investigation at all, the following two consequences are likely to arise.
Firstly, you might find the investigation lacks direction and unnecessarily covers matters that are irrelevant to the allegations being investigated. Alternatively, certain parties may become aggrieved if their particular issues are not addressed.
A defined scope helps provide boundaries on the behaviour subject to scrutiny and helps ensure other unrelated issues (for example, legitimate performance management and operational differences of opinion) do not become entangled in the investigation.
Don’t run away from the ‘he said, she said’ scenario
Investigations often involve situations in which two witnesses have opposite recollections of the same incident.
In these cases, many employers will automatically conclude that they cannot reach any finding regarding what took place – given the conflicting evidence from the only available witnesses.
Employers need to remember the standard of proof that needs to be applied in these cases is ‘the balance of probabilities’. That is, is it more likely than not that the alleged conduct took place?
While the existence of a factual disagreement between the two direct witnesses often muddies the waters, there could be a myriad of other circumstantial evidence that might assist an employer in determining what actually took place.
It could well be the case that, having considered all of this evidence, it is still impossible to make a finding either way. That is inevitable in some cases. However, don’t simply give up at the first hurdle without trying to explore whether a finding can be made.
Don’t declare war on the support person
Support persons are there to emotionally support the person involved in the investigation and do not have the right to act as an employee’s advocate.
We find that some HR practitioners or managers tend to take an unnecessarily hostile approach to support persons, fervently reminding them of their limited role and refusing any requests for breaks or to clarify questions. In our experience, taking an amicable approach to the investigation process is more likely to achieve a constructive outcome.
Of course, when asking questions of employees, it is important you obtain the employee’s answer directly from them, as opposed to the support person. This is particularly important in dishonesty cases to ensure the employee can be accountable for what is said in the investigation meeting.
You can never ask enough questions in an investigation. Try to ask as many questions as possible. When did the events occur? Where? Why? Who witnessed the events? How does the witness know about the matters they are describing?
A common (and justifiable) complaint by many respondents to investigations is that they are not provided with sufficient detail of the allegations against them. The more thorough your questioning, the more specific the allegation and findings and the more defensible the investigation process becomes.
Clarify who can see witness statements, and how much information is provided
Witnesses often request their evidence be kept confidential when disclosing information about fellow employees. On the other hand, respondents often complain when they can’t see the witness statements made against them, alleging they do not have a fair opportunity to respond to the allegations.
How does the employer balance these competing issues? The short answer is that a respondent needs to be provided with sufficient detail of the allegations against them in order to be given a fair opportunity to respond. However, this doesn’t necessarily mean they need to see witness statements. Rather, the respondent will often only require specific detail about what it is alleged they have done.
Workplace investigations can be complex matters, and only a few key points have been covered in this article.
ABLA is running a full-day Workplace Investigations and How to Get it Right training course in September in Sydney, Newcastle and Brisbane. Book you or your staff to attend and feel confident in what to do when a complaint hits your desk.
Call 1300 565 846 or email firstname.lastname@example.org if this has raised any concerns for your business.
A version of this article first appeared on Australian Business Lawyers & Advisors.