When employers receive complaints about alleged inappropriate workplace behaviours, they usually know how to respond. This usually involves investigating the allegations and, if they are substantiated, taking necessary action to address that behaviour.

However, there are occasions where information is communicated to employers about those behaviours through informal or anonymous complaints, hearsay, and even through media reports. To complicate matters, that information may not necessarily identify the perpetrators of the alleged inappropriate behaviours.

Here, employers need to carefully consider how best to proceed – particularly where the information indicates that the alleged inappropriate behaviour is serious, widespread, presents a health and safety risk, or could negatively impact the employer’s reputation.

A relatively recent case in point relates to allegations of racism within Victorian footy clubs.

Naturally, ignoring the issue is not an option. However, without concrete allegations relating to specific events and individuals, it is hard for an employer to undertake a workplace investigation. This is where a preliminary assessment comes in.

What is a preliminary assessment?

A preliminary assessment (also known as a “preliminary review/inquiry”) enables employers to make initial inquiries to identify whether there is some merit to the allegations and how best to respond. Best practice dictates that this process should be undertaken by an external and independent professional who has the necessary experience and qualifications to consider the issues and make objective recommendations about the next steps.

Importantly, this is not an investigation, and no findings can be made as to whether any of the allegations are substantiated. This process is solely to enable the employer to understand the underlying issues and whether an investigation would be an appropriate response or if there are other, preferable alternatives.

Separate to a workplace investigation, recommendations arising out of a preliminary assessment may include:

• introducing new policies
• updating or strengthening existing policies
• providing refresher training or education to employees about expected standards of behaviour
• undertaking a cultural review

Here too, assistance from an external professional can be invaluable to employers.

Post preliminary assessment:

It is essential to ensure that even if there is some merit to the allegations, comments are not made which could be prejudicial to potential respondents to those allegations. Respondents have the right to know exactly what the allegations are, and can respond to those allegations before any action is taken against them.

Once a preliminary assessment has been completed, employers should be wary about publishing its outcome. A knee-jerk response to media publicity, to mitigate against risks to the employer’s reputation, can often have the reverse effect. Improperly worded media statements could be interpreted as the employer supporting the allegations prior to an investigation being undertaken. In that event, respondents will be in a strong position to argue that they have been denied procedural fairness and will have the right to pursue various claims ranging from unfair dismissal to defamation.

Ultimately, the way that employers choose to respond to information relating to alleged inappropriate behaviour in the workplace, where no formal complaint has been made, can have lasting effects on their business and employees. A well conducted preliminary assessment is the first step in ensuring that any response is fair, balanced and takes the interests of all parties into account.

Where to go from here:

We can assist you in improving working relationships, addressing cultural issues and preventing formal complaints with our workplace review or inquiry services.

Our consultants are available in-person or virtually to examine your specific allegations as well as contributing factors such as leadership style, workplace culture, organisational skills or operational issues. Make an online enquiry.

We also provide conducting workplace investigations training. Our senior Investigator will guide your employees in meeting legal requirements and company policies and procedures when conducting workplace investigations on unlawful discrimination, harassment, sexual harassment and bullying. Register and learn more.

About the Author

Costa Brehas is an experienced workplace relations practitioner having also previously practised as a lawyer for over 25 years.

Costa has acted as in-house legal counsel for peak employer organisations, has practised as a Senior Associate in the workplace relations departments of reputable mid-tier law firms and provided consultancy services across the entire spectrum of workplace relations issues. Costa has acted in numerous unfair dismissal matters, general protections applications, anti-bullying proceedings as well as discrimination, equal opportunity and sexual harassment disputes.

Costa has conducted complex workplace investigations into a variety of workplace disputes and complaints and has prepared comprehensive investigation reports. He has successfully mediated workplace disputes and has direct experience working within the human resources area of an international educational institution. His skills and years of experience in a diverse range of environments place Costa in a unique position to provide his services in an effective and efficient manner.

Costa holds a Baccalaureus Procuration is Law Degree. He was admitted to practise as an Attorney of the Supreme Court of South Africa in 1993 and as a Barrister and Solicitor of the Supreme Court of Victoria in 2002.