Following on from my blog about the complaints of sexual harassment (read about it here), I’m often asked the question, I’ve got the complaint or grievance or allegations. What do I do now?!?!
Managing these issues lends some clients to first reactions like ” Nicole, I can’t deal with this. I’m just going to sack everyone and quit.”
Then once they calm down they realise the answer probably is, conduct a workplace investigation. But now what?
What is a workplace investigation?
A workplace investigation is an enquiry into the circumstance of an event/matter to determine as best as possible what happened. There may be a whole range of situations in which an employer may need to conduct a workplace investigation including where there is a complaint, an allegation of misconduct; bullying, harassment, breaches of health and safety procedures and other disciplinary matters.
Conducting an investigation
The need for an investigation can arise in many circumstances. Generally an investigation will be conducted where:
- a complaint has been received. A workplace complaint may arise from a variety of circumstances;
- breaches of health and safety procedures; or
- other disciplinary matters. An investigation will generally occur where there has been an allegation of misconduct
An investigation should always be conducted where there has been an allegation of harassment or discrimination. Harassment or discrimination may arise in the workplace or occur in connection with the workplace. If it complaint is made, an employer should always investigate. This is also the case if the employer becomes aware of an allegation or event of harassment or discrimination even if it is not specifically complained about formally.
How should an investigation be conducted?
While there is no single legal framework to guide how to conduct an investigation, often employers will have policies that detail the steps that need to be taken in conducting an investigation.
Policies may provide for an investigation to be conducted informally or formally so as to consider the nature and severity and complexity of the matter. Internally or externally depending on the factual circumstances.
It is important to have policies in place to ensure investigations are not conducted in an ad hoc manner. Remember where a policy is in place the employer is obliged to follow it also.
Employers should also ensure that their policies are properly communicated and accessible to everyone to whom they apply. So if the policy applies to contractors for example, they should have access to them.
So keep in mind, each investigation will turn on its own facts and therefore, the investigation needs to be flexible.
What if an employee does not want an investigation into their complaint?
An employee may raise a workplace issue with the employer or make an informal complaint, but not wish for any formal action to be taken.
In most circumstances, regardless of the employee’s views, once an employer becomes aware of an issue, they should make an assessment about whether the issue should be investigated and determine the process for doing so in accordance with its policies and procedures.
All employers are obliged to provide its employees with a safe workplace.
Who should investigate?
Maybe you need the seemingly doddery and ever so sweet demeanour of Miss Marple? Or the ever observant and distinguished moustache of Poirot?
Determining who should investigate is sometimes tricky. If an internal person is chosen to investigate a matter, that person must be able to act objectively and should not have any stake in the outcome. The investigator should not be a close
co-worker of the parties involved and where possible should work at a different location and in a different division.
The investigator should have the skills to investigate, should have the right temperament and interpersonal skills to build a rapport with those involved and any witnesses. The investigator must not make findings or come to conclusions before the investigation is complete.
It is not always appropriate for an internal investigator to conduct the investigation. Where ever possible it is prudent to engage in external investigators. This should avoid any allegations of bias.
An outside investigator should be engaged where:
- The employer does not have the skill/time to investigate the matter properly;
- A complaint is made against a senior employee;
- There is a risk of subjective handling due to conflict of interest;
- The alleged behaviour is of a serious nature.
Preparation for any investigation
A plan for the investigation should be prepared by the investigator before commencing the investigation which includes:
- What questions need to be answered?
- A list of witnesses who should be interviewed;
- What additional material is required?
The investigator should ensure notes from the interviews are factual, dated and signed.
What to do when the investigation is complete?
Once the investigation is complete, the employer should make a determination (this may be done with legal advice):
- Inform the parties of the outcome;
- Take prompt action to remedy any inappropriate conduct;
- Consider whether additional training is appropriate; or
- Consider whether dismissal should be considered.
It is very important that the investigation is kept confidential.
Consequences of not getting a workplace investigation right
Conducting a workplace investigation does not necessarily mean the end of a matter. Proceedings may be commenced and the investigation may not withstand legal scrutiny. To best protect an employer it is vital that the matter be properly investigated and that all involved are afforded procedural fairness.
Courts and Tribunals have made it clear that employers must be able to demonstrate proper procedural fairness is followed in an investigation if they want to satisfy their obligations under workplace laws. Employers are not held to the standard of perfection, but the more serious the complaint/s, the closer the investigation process will be scrutinised. If they cannot, it may be that the investigation is unlawful or the basis for the employer’s decision is inherently flawed.
Dealing with multiple complaints
If employers are met with multiple complaints, generally all complaints should still be dealt with separately and investigated independently. This will prevent allegations of predetermined results and bias of the investigator.
The investigations should be conducted expeditiously as it would if there were just a single complaint.
When reaching a determination on what actions should be taken, the decision maker can take into consideration the findings of each complaint when weighing up the evidence, particularly when they involve the same offender or offenders.
The spotlight on issues like bullying and harassment and sexual harassment should be taken as notice to employers of future expectations.
In the community there is a real expectation that employers are taking action when these issues arise, and that their policies and procedures ensure organisations are responding effectively and appropriately to complaints of all kinds.
I recommend all employers routinely review their policies and procedures to make sure they are up to date with current law and reflect the needs of their workforce.