The spectre of an unfair dismissal case can haunt an organisation that does not handle dismissal carefully. This is one of many reasons that any workplace investigation conducted prior to termination needs to be rigorous, timely and carefully planned.
At the heart of a workplace investigation is the idea of procedural fairness – that is, making sure that the investigation follows established protocols, that the investigator is impartial and that the result is based on the evidence gathered.
Here are a few simple steps you can take to ensure procedural fairness.
Planning the investigation. Do some planning before you begin. Is an investigation required? Ensure it is not an interpersonal issue that could be resolved with mediation or counselling. Also consider whether it is in fact a performance issue that could be resolved via your existing performance management processes. If an investigation is required, consider the nature of the allegations and whether any immediate actions are required – for example, suspension of an employee, resolution of any OH&S risks, or notification of an external agency such as the police. You might also start thinking about the evidence available and any actions required to make it secure (for example, backing up an email inbox or preventing files from being deleted). Above all, consider what it is that you are trying to find out from the investigation.
Selecting an investigator. Consider the best person to conduct the investigation – is there someone internal who has the appropriate skills? Or would you be better with an external investigator (for example, an independent HR consultant)? Remember, the investigator should be impartial and able to apply the organisation’s policies or code of conduct to the situation. If you decide upon an internal investigator, ensure they are not directly connected (whether as supervisor, colleague or subordinate) to the complainant or the person being investigated. Where it is a sensitive or serious matter being investigated, you may benefit from an external investigator with expertise in that particular area. In most instances, it is preferable to separate the roles of investigator and decision-maker.
Ensuring confidentiality. Procedural fairness depends to a large extent on the confidentiality of everyone involved. All participants – whether the complainant, the respondent or a witness – should be made aware of the importance of not discussing the investigation. Rather than simply assuring the interview subjects of confidentiality, explain the investigation process and measures taken to keep information confidential and reiterate the role they play in preventing information leaks. Further up the chain, you may find there are senior people within your organisation who feel they should know what is happening with the investigation – be careful about disclosing information and consider who really needs to know.
Conducting the interviews. Interviews must be conducted fairly, discreetly and consistently. Ensure the subject of the investigation is aware of the allegations and has an opportunity to respond to each one. Remember, the interviews must be objective and impartial – all participants should be treated with respect. Plan the interviews in advance and decide what questions need to be asked. Consider the types of evidence available – is there a paper trail or video footage that may support the topics discussed in the interviews?
Considering the evidence. At the conclusion of the interviews, think carefully about how to synthesise the evidence. Is there a clear outcome or finding? Are there significant contradictions in the evidence supplied? Is more investigation required? If necessary, develop a plan to gather any further information required to help draw conclusions and make fair recommendations.
Reporting the findings. Once the investigator has reached a conclusion, they should prepare a report for whoever is making the decision about how to proceed. The report should be unbiased, comprehensive and closely referenced to the organisation’s policies, processes, code of conduct and any legislation. It should document the interviews conducted, the evidence uncovered and, if required, the investigator’s recommendations. If several allegations are made, it is important to make a finding on each one.
While workplace investigations can be complicated, they needn’t be daunting. Appropriate training for internal investigators can help to provide the skills and knowledge needed, iHR Australia offers Workplace Investigation Officer training.
For matters that are more complex or where concerns of bias or conflict of interest exist, it may be prudent to engage an external investigator to conduct the workplace investigation or conduct a review of an internal investigation that has taken place.
