Are you prepared for a complaint about bullying, sexual harassment or discrimination? Act wisely and stop complaints from escalating to the Fair Work Commission.
Complaints about bullying, sexual harassment and discrimination, along with incidents including accidents and workplace health and safety breaches, occur in even the best run businesses. How you react however can be the difference between ending up in front of the Fair Work Commission and weathering the storm.
1: Instil fairness in your processes
Ensuring workplace investigations are carried out fairly and appropriately is essential, since shoddy investigations on your part could put you at significant legal risk and liability for your business.
“The most obvious risk is that a poorly conducted investigation potentially leads to incorrect findings, which may influence any disciplinary action taken as a result,” says lawyer Margaret Chan, from Australian Business Lawyers & Advisors, co-presenter of the Chamber’s upcoming Workplace Investigations seminar.
“In such circumstances, it is not uncommon to see employees make unfair dismissal applications or adverse action applications at the Fair Work Commission on the basis that they weren’t afforded procedural fairness during either the investigation and/or the disciplinary process. And while a claim may settle at conciliation, there is the cost in terms of management time spent, legal costs (if a representative is engaged) and potentially even publicity risks if the matter ultimately becomes litigated and/or the disgruntled employee goes to the media about the matter.”
You may also be at risk of a breach of contract claim or claim by an employee that they are “stressed” by the whole process and subsequent workers compensation claim.
2: Assign the right skills to the investigation
To improve the process and minimise risk she says the first step is to select an appropriately trained person to conduct the investigation.
“If you have been tasked with undertaking an investigation, make sure you understand the content of any relevant policies and procedures and have them to hand before commencing the investigation,” she says. “If it’s your first time undertaking a formal investigation, seek some advice in relation to the process before commencing.”
3: Outsource if necessary
In circumstances where there isn’t sufficient skill or expertise within an organisation to undertake the investigation, it may be better to outsource the investigation. This is the case where the allegations are serious and there are sensitive matters which may end up being litigated, or there is an actual or perceived conflict of interest, for example with senior member of the management team.
“In those situations, having an external party carry out the investigations lends credibility to the findings of the investigation,” says Chan.
In some instances you may also be required by a third party such as insurer or WorkSafe to have an independent party investigating.
Five common mistakes to avoid
According to Chan some of the most common mistakes that people make when conducting investigations include:
• Not conducting an investigation in a timely manner – invariably, people will forget things.
• Approaching the investigation with a pre-conceived view about what the findings will be.
• Failing to investigate additional allegations that are raised during the investigation or ignoring certain evidence that arises during the investigation.
• Not putting all the allegations to the Respondent of the investigation, on the basis that there’s already enough evidence to make a finding on a certain point.
• Lack or independence or transparency in the investigation and failing to consider if there could be conflicts of interest affecting the investigator.
To find our more, sign up for the webinar here
Webinar details: Workplace Investigations – Tuesday, 15 November, 12-1pm