Better Workplace Investigations: 10 Steps to Ensure Procedural Fairness

Navigating a workplace investigation is often a difficult task. Errors in investigations can result in tribunal hearings or court cases and may jeopardise subsequent decision-making. If you are conducting a workplace investigation that may adversely affect the rights and interests of an employee, it is particularly important that you ensure your decision-making is procedurally fair.

In this blog we will discuss the 10 things you can do, to ensure your investigation is fair and robust.

What is Procedural Fairness?

Procedural fairness in a workplace investigation relates to fairness of the procedure by which a decision is made, as distinct from the fairness of the decision or outcome itself.

To ensure a workplace investigation is procedurally fair, as well as any decisions based on that investigation, there are a few key considerations:

• the employee must be informed of the case against them, including all of the relevant facts and evidence, policies and legislation to be relied upon
• they must be provided with a fair opportunity to provide their version of events, or their response to the allegations
• the decision maker or investigator must fairly consider the employee’s response when making their decision
• the investigation, and subsequent decision, must be free from bias – both actual bias and apprehended bias.

If you follow these steps, you are ensuring you are complying with both the ‘hearing rule’ and the ‘bias rule’ of procedural fairness.

It may not always be clear if a duty to afford procedural fairness exists in general employment decision making, such as when declining a period of leave. However, an investigation is a much more serious matter and so comes with an obligation to follow a fair and transparent process.

When you are conducting a workplace investigation that may lead to an adverse outcome for the employee, such as disciplinary action or termination, you must ensure your decision-making is free from bias, and that the employee receives a fair hearing.

Many unfair dismissal applications are successful at the Fair Work Commission due to the absence of procedural fairness, so it is vital to understand the fundamental requirements of a fair workplace investigation.

This guide is designed to provide you with an understanding of the essential components of procedural fairness and how this applies to both the investigator and employee.

It’s important to remember that what procedural fairness requires will change on a case-by-case basis. For example, there is no hard and fast rule about what a fair length of time may be to enable an employee to respond to allegations of misconduct.

Allowing seven days for a response will not be sufficient in every situation. For instance, if your investigation has produced 2TB of evidence, and you intend to rely on this to make an adverse decision, its highly likely the employee will need more than seven days to fairly consider the adverse evidence, and make a statement in reply.

So, what steps can you take make sure your workplace investigation is fair?

1. Inform the employee of the case against them.

The first step is to make sure the employee is aware of the case as soon as practical, so they feel they have been involved in the whole process. Of course, this must be balanced with other considerations in certain cases – such as the safety of any possible complainants while you make alternative work arrangements.

2. Let them know the likely timeframe for conducting the investigation, and keep them informed if there are any delays.

This sets reasonable expectations for all parties in the investigation.

3. Let the employee know of any supports available, such as an Employee Assistance Program or that they can bring a support person with them to an interview.

An employee is likely to be affected emotionally by an investigation, and they may need support. Additionally, this may cause them to have problems presenting their version of events during an interview, for reasons more to do with their emotional state than the strength of their case, which may leave them feeling that the interview was unfair. Allowing them a support person will prevent this.

4. Make sure you follow the investigation steps as outlined in your Workplace Investigation Policy/Procedure.

A key part of procedural fairness is a transparent, repeatable process which will be the same regardless of the circumstances. An employee should feel comfortable that they are receiving the same treatment regardless of their role, internal relationships, demographic factors, or otherwise.

To this end, you should have or develop a workplace investigation policy which you follow as much as possible. In the event that you cannot follow the policy exactly, the employee should be informed about any deviation.

5. Ensure the employee has a fair chance to respond to the allegations, and make their case in reply.

Perceptions of fairness rely heavily on an employee feeling heard, and you cannot make a fair decision without evaluating their version of events. The employee who is being investigated must always be given a chance to respond to the allegations.

6. If you vary any allegations, or obtain any new evidence, along the way, ensure the employee is aware, and has an additional opportunity to respond.

Additionally, you cannot change allegations or obtain further evidence after an employee has responded, without giving them an additional chance to respond to the new allegations or evidence. By the time the investigation concludes, the employee must have had an opportunity to respond to the entire case against them, not a partial case at some earlier stage.

7. Keep an open mind.

Investigators are people, and people are prone to bias, however an investigator must keep an open and impartial mind as much as possible. Certain workplace investigations may be emotionally laden, and may drive you to lean towards one conclusion or another, because of how you feel about the alleged behaviour (whether proven or not) or the circumstances or persona of the subject or any complainants.

However, you must keep an open mind until the end of the investigation, and let the evidence guide you. Someone may have done the wrong thing even if they’re a ‘nice’ person, and someone may be innocent of the allegations even if they come across as a ‘bad’ person.

8. When drawing any conclusions, ensure they are supported by a fair weighting of the available evidence, and are not arbitrary or irrational.

To that end, you must consider all evidence with a fair weighting. For example, if independent witnesses, computer records, or CCTV footage fail to corroborate an allegation, this must be given more weight than if the employee seemed suspicious or hostile in an interview. They could be hiding something, but that thing may have nothing to do with the investigation. Or, they may simply, understandably, be annoyed at being investigated if they feel they did nothing wrong.

9. Communicate your decision, and the reasons for your decision, to the employee.

Obviously, you must communicate your decision to the employee. If the allegations are not proven, then they should not have the stress of the unknown hanging over their head. If the allegations are proven, then they should have some warning or personal contact before any further action is taken against them – it should not come as a surprise.

Additionally, providing the reasons for you decision will help increase perceptions of procedural fairness, as they may not agree with the outcome but they can understand how it was reached. That is, they may not feel the decision was fair – it is natural for people to feel an adverse decision was somehow unfair – but they can accept that the process itself was fair.

10. Keep good records of your investigation process, to rebut any procedural fairness arguments that may be raised once your decision has been made.

This last step is less about the employee’s perception of fairness and more about ensuring that you can prove the process was fair should an employee feel aggrieved after the investigation and appeal, internally or especially externally. You should maintain a complete record of the process and all of the evidence to ensure that you can present this to a reviewer, a tribunal, or a court.

We know that employees are more likely to accept an unfavourable decision if they feel they have had a fair decision-making process. That’s why communication is so important throughout the above steps.

How can Polonious help?

Polonious Case Management System (PCMS) is designed to provide a rigorous, repeatable process that is compliant with any regulatory requirements. PCMS can turn your workplace investigation policy into a workflow, with gated decision points, reminders, and tight security, to ensure you always follow step 4 above.

Additionally, as the system is process centric, you can focus on following the evidence to the conclusion, instead of focusing on making case notes on a personnel file (step 7).

Our secure portal and email integration make investigations easy for investigators, as well as ensuring the employee has a chance to respond to allegations (step 4) and will stay informed throughout the investigation (steps 1-6 and step 9).

Lastly, Polonious keeps a full record of the process and any evidence obtained, including reasons for decisions and timeframes (steps 8 and 10).

Further, our system automates much of the paperwork and communication, meaning you can focus on conducting a thorough and fair investigation, instead of completing paperwork and updating other systems.