Confidentiality the key during investigations

iHR Australia’s Workplace Investigation experts have identified that confidentiality is the most critical team-based risk during the period an investigation is conducted.

As a key requirement of an investigation, confidentiality requires that information about the complaint will only be communicated to people on a need to know basis. iHR Australia’s Senior Workplace Relations Adviser, Dr Leigh Hodder, notes “Team members who are not involved in an investigation, cannot be told anything about the matter due to the confidentiality provisions of the process. In theory, people who are not involved in an investigation should not even be aware this process is being undertaken”. On the other hand, there is often a complainant, respondent and witnesses from the same team who are heavily involved in the matter.

During investigations, it can sometimes be quite apparent to team members that an investigation is occurring due to their awareness of a conflict situation. The cultural risks that may arise from this factor include parties who are not involved approaching those colleagues who are, or the creation of a ‘secrecy’ culture amongst the team which can lead to promotion of gossip and, in turn, potential division between team members.

Measures to avoid these cultural risks should be implemented well before an investigation takes place. According to Senior Workplace Relations Adviser Dr Verena Marshall, effective training, clear grievances processes, and an open culture in which managers are seen to listen to their staff and take action, can help prevent issues arising out of Workplace Investigations.  From this perspective, “Organisations should provide necessary training to employees to influence emergent culture in a positive way. Programs such as Anti-Discrimination, Bullying and Harassment training outline the rights of individuals during a complaint process and can be effective in benefiting employees through knowledge and reducing the risk of misinformation and undermining behaviour”.  Further, ensuring that workplaces have Contact Officers is another useful strategy. The Contact Officer can be a ‘go to’ person for staff seeking information about the organisation’s workplace complaint handling mechanisms.

Dr Hodder also referenced the importance of proactive training, advising organisations to “run a toolbox session with teams on the confidentiality requirements of an investigation and appropriate behaviours well before an investigation takes place.”

iHR Australia’s Managing Director, Stephen Bell, suggests that, “in the case that information from an investigation is leaked by one of the participants, the organisation needs to revert to an individual approach reminding team members of their responsibilities under the organisation’s confidentiality policy and/or their obligations under their contract of employment. Disciplinary action may also need to be taken in some cases.”