5 June 2014
Placing emphasis on a word, adopting a positive tone or expressing empathy during an interview do not typically lead to trouble but, when undertaking a workplace investigation, interviewers must be cautious about what they say.
The topic was raised in a recent webinar from HR Daily and there are many important lessons to be taken from some cases where the investigator’s impartiality has been called into question.
The expert spoken to by HR Daily cited several cases where investigators made mistakes in interviews. In one such case, the investigator had sought to put witnesses at ease by expressing sympathy or agreement with statements they made, in another the investigator used language to describe an event that was not reflected in witness statements. An important element of this particular case was whether the dinner at which the alleged incident occurred could be considered “within the course of employment”. The courts decided that the investigator’s use of the word "debriefing", a word not used by the parties involved, implied that the investigator had already made a judgement on the outcome of the investigation.
It is clear that the language used during interviews can influence whether the courts or the Fair Work Commission (FWC) will rule that an investigator was impartial and free from influence.
Additionally, when making a decision on a stop-bullying order or unfair dismissal claim, the FWC's conclusion on the procedural fairness of the workplace investigation may be determined by whether the employer appointed a fair and impartial person.
This is particularly important for internal investigations; employers must consider whether the person appointed is sufficiently removed from the matter at hand and able to approach the situation without prejudice.
When deciding on the level of bias felt by an investigator, the courts can investigate the language used during interviews. This includes whether the questions were posed in leading ways or if the interviewer spoke with a tone or inflection that may suggest their opinions to the witnesses.
As raised in the webinar, seeking to build rapport during an interview is not unusual. However, in the context of an investigation, the interviewer is treading a fine line between ensuring they are seen as fair and trustworthy enough for all parties to be open and honest, and not showing bias or sympathy towards any of the parties.
For this reason it is vital that anyone conducting internal investigations is provided with Workplace Investigation Officer training which includes information on procedural fairness, burden of proof (the balance of probabilities) and the workplace investigation process, alongside practical guidance on planning and conducting interviews.
The risks associated with a poorly conducted investigation are significant and if an employer is in doubt about whether an investigation conducted internally will stand up to external scrutiny, it is prudent to seek the assistance of an external workplace investigations provider.
iHR Australia offers a team of qualified and impartial workplace relations experts to help ensure your organisation’s workplace investigation can withstand external testing from the courts or FWC.
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