Workplace investigations are complex and stressful procedures for everyone involved. They can be time-consuming and often emotions further complicate the process. People might be scared of losing their job, unknowingly breaching laws or making false allegations. The workplace consists of diverse people with different perspectives of what is wrong and right, and under pressure, it is normal for HR and managers to make mistakes. How can mistakes be prevented?
What are workplace investigations?
Workplace investigations examine the breach of law or workplace policies. They deal with allegations of workplace misconduct and conflict that could include harassment and bullying. Allegations can be formal or informal and while some complaints don’t require a workplace investigation, employers have a duty of care towards their employees. This means they need to explore each accusation and take it seriously.
A workplace investigation aims to collect facts and resolve an issue in a fair process for employees and managers. A judgement will need to be made based on the information that was gathered. As mentioned above, workplace investigations are complicated so there is little to no certainty that everyone will be happy with the result.
Ramifications of inaccurate workplace investigations
Wrongful conduct is a serious allegation that has a huge impact on workplace culture. Even if an employee has made numerous unsubstantiated complaints, HR and managers need to look into each one and determine whether there is an issue.
Defects in investigations that show a lack of meaningful action could lead to wrong decisions and unfair outcomes. Employees will be impacted negatively and face unforeseen consequences in their lives. It could affect their job, their income, their mental health and their overall wellbeing as they are being wrongfully accused of something they didn’t commit.
Incomplete or one-sided workplace investigations could potentially result in unfair dismissals. In 2012 John Ryan was fired from the Department of Human Services for leaking information. The Fair Work commission concluded that the reasons for firing him were appropriate but the dismissal was unfair. This was because the investigation that took place prior to the dismissal was very short and vague. A more thorough investigation should have been conducted to ensure that all evidence and facts were taken into consideration. The Department of Human Services had to compensate John Ryan for not reviewing all the information.
Objectives for investigations
Preparation and planning are crucial for a comprehensive and fair workplace investigation. It is clear that workplace investigations are complex processes that require a number of steps and could have unwanted consequences. Setting objectives allows HR to have a logical plan of action and make knowledgeable decisions. It also ensures that the process is faster and the correct resolution is reached.
These objectives include:
- Being aware of all relevant parties
- Identify the issues and relevant evidence
- Having the correct attitude and being objective
- Has company policy or the law been violated?
- Taking meaningful actions towards resolution
Each of these objectives relies on a responsive investigator who is aware of employees and employers’ rights.
Being aware of all the parties of all relevant parties
Knowing everyone involved in the incident is very helpful for a smooth interview process. In most cases those are:
- The party making the complaint/allegation
- The party being accused
- Managers and HR
- Supervisors
- Any witnesses that could confirm the validity of the allegations
The investigator needs to know the position each person holds in the workplace and in the incident. It will assist them in understanding why they are being questioned and then explain the purpose to those being interviewed. The investigator could be internal or external depending on the business’s decision.
Discussions need to be confidential for many reasons. The person making the complaint might not feel comfortable being identifiable and information about the issue leaking into the workplace environment could affect the productivity of other employees. Information collected should be confidential and kept within those involved. Failure to do so could result in the reputation of the accused and the accuser being damaged. However, employees might need to be notified so they can provide more evidence if needed. In that case, specific details could be disclosed to staff to ensure a lawful result.
Identify the issues and relevant evidence
The goal of each interview should be to get a clear understanding of what the underlying problem is. It is not enough to investigate the surface of the dispute. Investigators need to do thorough research and determine what caused the issue to occur. They need to understand why the party being accused made those decisions and how those decisions affected the business and its stakeholders. In the case of John Ryan, the Department of Human Services interviewed only him and no one else, and even though they asked for his psychologist’s report, they didn’t collect any further documentation and made their decision rashly.
Depending on the conflict, investigators need to be prepared to ask for proof and certain evidence to be provided to support the claims being made. The evidence could vary in nature and could be witnesses, data or any other information relevant to the incident. Evidence is important because it will be used in the resolution process as well. Failure to gather all relevant information could result in an unjust conclusion.
Having the correct attitude and being objective
The attitude of the investigator will influence the ability of interviewees to provide information in an honest and precise manner. Aggressiveness should be avoided even if the matter is serious. It can make all parties feel attacked and less likely to cooperate. A professional and neutral demeanour is necessary to make employees feel that the purpose of the interview is to gain knowledge rather than accuse them of wrongdoing.
Sympathy should be shown to all parties and there shouldn’t be any level of bias expressed or assumptions based on past events. If there is any doubt that bias might be present during the workplace investigation then an external investigator could be a good solution. The staff involved should be updated on the progress of the workplace investigation and each report needs to be clear of any judgemental or inflammatory language.
The investigator needs to be objective and look at the facts rather than the emotions being displayed by the parties. This will avoid ‘He said, she said’ situations and rumours of the workplace investigation being biased towards or undermined by a certain party. Interview notes should be completed before starting the next interview to allow for information to be verified. It will also ensure that all proof is being analysed carefully and evidence isn’t skipped. Personal opinions should not be a factor and for this reason, an investigator shouldn’t be someone with a conflict of interest.
Has company policy or the law been violated?
Based on the facts gathered, a decision needs to be made on whether the law or the company policy has been breached. Australian legislation governs the laws and regulations in a workplace. Moreover, companies have their own policies that may have been breached.
Breach of law is criminal and could have consequences outside of the workplace while company policy usually only has ramifications within that specific company. The seriousness of the actions must be determined and the way in which certain actions breach a law or policy must be outlined. For example, discrimination based on gender within a workplace is covered by the Fair Work Act, and actions deemed discriminatory under the act violate the law and could give rise to legal consequences.
Establishing whether the actions fall under company policy or statutory law is a crucial step in resolving an investigation. It is important to remember that investigations conducted unfairly or without correct procedure could violate statutory and common law, such as an employer’s duty of care towards their employees.
Taking meaningful actions toward resolution
The resources that the investigator uses during the process should ensure that no shortcuts were taken. This will allow for corrective action to occur in a fair and accurate manner. After all evidence has been collected and all relevant parties should be informed of the outcome of the investigation. The misconduct needs to cease to prevent any future damage. A good investigation report will need to be written to cover everything in the workplace investigation.
The final report should include
- The misconduct
- The timeframe in which the misconduct took place
- Who were those affected?
- How did it affect the workplace?
The company needs to make decisions on how to deal with the issue and what corrective action is required. The policies of the company might need to be changed to avoid similar situations happening in the future. HR and managers need to be prepared to support those involved in the incident and provide support to those who need it. The support could include counselling or paid leave. If termination is required, the company needs to show that it reached this decision in a fair and lawful manner.
Conclusion
The company should agree on the best strategy for conducting the workplace investigation before initiating it as objectives could be hard to change after some form of action has already been taken. Ensuring that employees feel safe and cared for at work should be the number one priority. Managers and HR owe the duty of care to anyone that works for their company and improving business culture benefits them by increasing productivity as a result of decreasing workplace conflict.
How can Polonious help?
Polonious’ Case Management software allows investigators to undertake accurate and fair workplace investigations. It assists with storing notes and evidence safely and documenting every relevant action that has taken place. Its ISO27001 certified security ensures the secure management of the evidence and files. This will prevent the leak of sensitive materials and provide complete employee confidentiality.
Polonious can also make workplace investigations less time-consuming by streamlining brief and letter preparation and ensuring that everything is a few clicks away. By having everything in one place; notes, relevant parties and evidence, investigations can be completed smoothly.
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