The Dos and Don’ts of workplace investigations

HR practitioners and Line Managers are more regularly being called upon to conduct investigations into complaints by staff members, corresponding with the increasing number of stress related workers compensation claims that relate to inappropriate workplace behaviours.

Complaints are frequently complex and consume large quantities of time and management effort.

Courts and Tribunals are frequently criticising organisations for poorly executed investigations. In a recent example, an employee who was sacked on harassment claims has been reinstated and paid lost earnings based on the decision made by the Australian Industrial Relations Commission (AIRC) that the company did not follow appropriate procedures for investigating and dealing with the harassment claim.

The AIRC found a lack of credibility in relation to the allegations, and inconsistent and inaccurate evidence offered in the written account made by the company’s HR manager. By contrast however, the supervisor’s evidence was considered clear and consistent.

The AIRC stated that the company had failed to initiate a proper investigation into both complaints and instead accepted the accusations at face value. The supervisor was denied natural justice in that he was not provided with full details of the allegations against him nor was he afforded an appropriate opportunity to respond to the allegations.

The AIRC said there were ‘significant deficiencies’ in the company’s investigation and therefore the company had no reasonable basis on which to make their decision to terminate the supervisor’s employment.

What then, are some key dos and don’ts of an investigation? The following list contains a few of the matters that, in our experience, impact on investigation outcomes.

Do:

1. Make sure that you have clear “terms of reference” defining the scope of the investigation, and responsibilities of the investigator;
2. Ask, am I the right person to be undertaking this investigation? Do I have the objectivity, time and skill?;
3. Start any investigation with an “empty head” – too frequently parties to a workplace incident will have biases;
4. Ensure you follow the principles of natural justice, in particular towards the rights of the person being accused of inappropriate behaviour;
5. Remember that the process can be very stressful and time consuming; a poorly conducted investigation can damage workplace relationships for many years to come. Haste can result in an unjust outcome. An investigation is often an educative journey for the parties who will need time to reflect upon their actions;
6. Make a finding in relation to each and every element of the allegation(s). No-one should be left with a cloud of doubt hanging over them;
7. Record in your report not only the allegation, but the arguments and/or supporting evidence given by both the complainant and the respondent;
8. Ensure there is a clear and logical connection between the evidence, your findings and any conclusions you might make. Demonstrate in your report that you have properly considered all of the material evidence; and
9. Emphasise to all parties the need for confidentiality throughout the process, ensuring secure storage of any documentation.

Don’t:

1. Undermine your independence, resist pressure to make the finding you think is wanted by the organisation;
2. Put too much weight on hearsay;
3. Give undertakings to the parties that you will maintain confidentiality in relation to their evidence / comments. You may not be able to keep such undertakings;
4. Make comments that might be interpreted by the parties as bias;
5. Accept what you are told without testing it against evidence;
6. Try to deal with a matter rationally without acknowledging and dealing with emotional responses from the parties being interviewed;
7. Indicate your impressions prior to completing the investigation. You may actually change your initial impressions during the course of the investigation and upon the discovery of further evidence;
8. Don’t offer advice that has not been asked for or make a finding that a person has acted unlawfully. It is not the role of the investigator to determine if a person has acted unlawfully. You might find that their actions or behaviour “might be capable of being characterised as unlawful by a relevant court or tribunal.”

An investigation process can have long lasting impacts, ensure due care is taken and investigators are equipped with the skills and resources to focus on achieving the best possible outcome.

iHR offers a range of services to assist organisations needing to undertake a workplace investigation.