How to handle workplace discrimination issues before they land you in court – or in ‘trial by media’
When a workplace issue or complaint is raised, a thorough and impartial investigation is the ideal course of action to ensure the matter is dealt with effectively before it reaches the attention of the courts – or perhaps just as importantly, the wider public. Once a story of workplace misconduct makes the news, it can be difficult to contain the reputational damage sustained by the organisation due to ‘trial by media’.
One government department is currently learning this lesson, when the actions of a number of its senior employees were reported widely in the news due to allegations of workplace discrimination. Details have emerged that several senior employees ordered a covert investigation of three openly gay colleagues, which lead to the alleged victims being subject to “random” workplace drug tests and even having their communication intercepted.
Later, a member of their industry standards department advised the men they had been investigated after an “anonymous complaint” had been made about them. None of the men were found to have a case to answer. The men claim the operation is reflective of a wider culture of “homophobic prejudice” within their industry and after being denied access to the official files detailing the investigation, they have filed an application with the NSW Civil and Administrative Tribunal (NCAT) for an external review. The men believe these documents will provide evidence of a discriminatory motivation by their employer.
Despite assurances from their employer that it has a “zero tolerance” for homophobia or any action contravening the Anti-Discrimination Act, it’s clear that a rigorous and impartial investigation of the matter (and the broader culture it allegedly stems from) would have ensured greater clarity for all parties involved. Furthermore, a transparent workplace investigation would have helped the targeted employees address their concerns in private, before it came to the attention of the courts and the media.
Workplace investigations involve the collection and review of information in regards to allegations of illegal or inappropriate behaviour, including harassment, discrimination, bullying or exploitation. Workplace investigations ensure that matters of discrimination or bullying are dealt with fairly and justly.
The role of a workplace investigator carries considerable responsibilities. For this reason, the appointment of an investigator should be considered carefully: whether an investigator from within the company can be appointed, or whether it is better to source an investigator from an external provider.
An organisation may need to employ the skills of an external workplace investigator if:
• The matter could not be handled objectively if addressed internally, or the organisation does not have suitable skills or resources available
• The in-house HR person feels uncomfortable or unable to undertake the investigation process objectively
• The investigation involves senior employees
• The outcome of the investigation will probably be subject to external review
• It is required of your organisation by a third party such as WorkCover, WorkSafe or an insurer.
iHR Australia is a leading provider of workplace investigation services. We can facilitate a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. We have experience investigating complaints from an organisational, through to a senior executive and board level. iHR’s workplace investigators can also examine internal investigations you have conducted, to ensure they are sound and will stand up to external testing.
All workplace investigators at iHR Australia are senior HR and Employee Relations professionals with a minimum of 15 years’ experience. Several members of our investigations team also have legal qualifications and experience.
The workplace investigations conducted by iHR investigators seek to identify any underlying causes of a complaint, rather than simply dealing with matters of evidence. Often workplace issues can stem from a lack of capability, cultural issues, systematic process failures and risky management styles.