Last September, iHR Australia Managing Director Stephen Bell highlighted that through training in the area of Discrimination, Bullying and Harassment, managers must know that a direct line supervisor cannot conduct an independent investigation into an allegation of unlawful behaviour in relation to one of their own staff.
Mr Bell made note that any investigator, including an internal investigator, should be appointed to conduct an investigation with clearly stated written terms of reference. Where possible, an independent investigation should be the priority.
It is important for organisations to consider an independent investigation, as implementing an unbiased process may reduce the potential negative impacts.
An article published by Cinzia Pietrolungo at Macpherson Kelley brought attention to a recent case by the Victorian Civil and Administrative Tribunal where the employer was ordered to pay out $150,000 in damages to a female employee who suffered sexual harassment under a senior male employee. The complainant, who never returned to work following the incident, made allegations to which the organisation responded with an internal investigation.
The internal investigation concluded that the complainant’s allegations were unsubstantiated. However, in the following case, the judge ruled that the organisation’s investigation process was biased and misdirected; that is, a neutral position was not taken during the investigation process. As such the complainant was awarded damages for the ordeal.
Dr Verena Marshall notes, “An internal investigator often brings knowledge of the people and organisational systems to the investigation process; there is, nonetheless, the risk they also bring their own version of the story and its application to ‘what happened’. An external investigator ideally has no knowledge of the personalities or politics around the complaint; their ability to bring impartiality and objectivity to the investigation process adds to its robustness. The resultant ‘arm’s length’ approach to conducting an investigation is particularly important when the findings are significant for those they affect, and when they may be scrutinised in an external (judicial) arena.”